====================================================== Amar Kumar v. Opposite Party ====================================================== Appearance: For the
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.31215 of 2011 ====================================================== Amar Kumar .... .... Petitioner The State Of Bihar Versus .... .... Opposite Party ====================================================== Appearance: For the Petitioner : Mr. Ram Krishna Prasad, advocate CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH ORAL ORDER 2 23-10-2013 This application has been filed for quashing the order dated 18.7.2011 passed by Sessions Judge, West Champaran, Bettiah in Cr. Revision no. 202/10 and also for quashing the order dated 23.7.2010 passed by Sub-divisional Judicial Magistrate, Bettiah in Trial no. 178/10 whereby petitioner’s prayer for holding him juvenile was rejected. Heard learned counsel for the petitioner. None appears for the State. At the trial for offence under section 16(1)(a)(i) of Prevention of Food Adulteration Act, a petition dated 7.10.2009 was filed on behalf of petitioner to send his case to Juvenile Justice Board as he was claiming himself a juvenile of ten years on the day of occurrence. Claim has been turned down (rejected) by the trial court that the same was not filed on the earliest
Legal Reasoning
Patna High Court Cr.Misc. No.31215 of 2011 (2) dt.23-10-2013 2 occasion of the trial. Further his plea has been refused in not accepting his certificate from Bihar Sanskrit Sikchha Board, Patna as only its photostat copy was filed which has been made basis by the learned Sessions Judge in Cr. Revision No. 202/10 also. Further observation of the trial court is about petitioner’s attaining the age of majority when the petition was filed. All it appears misconception of the trial court as well as of the revisional court, provision under section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 is there to be observed by the trial court or Juvenile Justice Board whenever a claim is made by a juvenile in conflict with law if really he were juvenile at the occasion of commission of crime which runs as follows: “7-A. Procedure to be followed when claim of juvenility is raised before any Court.- (1) whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall Patna High Court Cr.Misc. No.31215 of 2011 (2) dt.23-10-2013 3 record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) if the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect.” Now it is clear that an inquiry is to be conducted on the point of determination of the age. Another point to be taken into consideration by the trial court or the Juvenile Justice Board is that the relevant date is the date of commission of offence for deciding the claim to be juvenile not the date when the petition is filed. Material to be considered by the trial court or the Juvenile Justice Board is mentioned in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Sub-rule 3 Patna High Court Cr.Misc. No.31215 of 2011 (2) dt.23-10-2013 4 of this Rule is clear about acceptance of the evidence by the trial court or Juvenile Justice Board. Sub-Rule 3 of Rule 12 Juvenile Justice (Care and Protection of Children) Rules, 2007 runs as follows: “12 ………………………. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if Patna High Court Cr.Misc. No.31215 of 2011 (2) dt.23-10-2013 5 considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing order in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” This Sub-rule is clear enough that matriculation or equivalent certificates if available, will prevail over other evidence, in its absence date of birth certificate from the school (other than a play school) first attended and thereafter the birth certificate given by a Corporation or Municipal authority or Panchayat is to be taken into consideration and in absence of all the three, Medical Board ought to be constituted for determination of the age but in the present case neither the inquiry is conducted nor proper procedure is adopted for determination of the age nor the evidence ought to be taken into consideration, has been taken into consideration by the trial court as well as by the revisional court. As such, both the orders passed by the court below are not Patna High Court Cr.Misc. No.31215 of 2011 (2) dt.23-10-2013 6 liable to sustain in the eye of law. This application is accordingly, allowed and both the impugned orders dated 18.7.2011 passed in Cr. Revision no. 202/10 as well as order dated 23.7.2010 passed in Trial no. 178/10 are hereby quashed. The case is sent back to the trial court to set up an inquiry as provided under section 7-A of Juvenile Justice (Care and Protection of Children) Act, 2000 and observe the procedure laid down under Sub-Rule 3 of Juvenile Justice (Care and Protection of Children) Rule, 2007 and decide the matter afresh in accordance with law. Let this order be communicated to the court below through fax at the cost of petitioner. A.I./N.A.F.R. (Mandhata Singh, J)