Sonvarsha, P.O v. Madhura, P.S. Korha, District
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1239 of 2010 ====================================================== Umesha Khatoon, D/o Md. Ishahak, resident of village-Sonvarsha, P.S.- Korha, District-Katihar. .... .... Petitioner/s 1. State Of Bihar & 2. Tanveer Alam, son of Hajrat Ali, resident of village-Sonvarsha, P.O. Versus Madhura, P.S. Korha, District-Katihar. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. None. For the Respondent/s : Mr. Navin Kumar Pandey, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 7 24-07-2013 Petitioner, Opposite Party No.2 are absent. The learned Additional P.P. is present. 2. Exercising the power so entrusted in accordance with Section 397 of the Cr.P.C. the matter has been gone through with the assistance of learned Additional P.P. 3. Petitioner Umesha Khatoon happens to be the informant who had filed complaint case no.1621 of 2009 against Opposite Party No.2 Tanveer Alam along with three others for an offence of rape committed by the Opposite Party No.2 who later on took to his place on the pretext of consumate marriage but was arisen out by other accused. The aforesaid complaint petition was sent to the concerned police station for registration and investigation of the case on the basis of which Korha P.S.Case
Legal Reasoning
Patna High Court CR. REV. No.1239 of 2010 (7) dt.24-07-2013 2 No.106 of 2009 was registered under Sections 341, 323, 376, 504 and 34 of the IPC. 4. At the stage of production Opposite Party No.2 before the court, a plea of juvenility was raised and on account thereof, the matter was referred to Juvenile Justice Board, Katihar where an enquiry was conducted in terms of Section 7A of the Act and vide order dated 07.04.2010 Opposite Party No.2 was declared juvenile. Being aggrieved thereby the petitioner had filed Cr.Appeal No.20 of 2010 which was ultimately dismissed vide order dated 28.06.2010 against which instant petition has been filed. 5. On 04.05.2012 it was prayed before this Court that the findings so recorded by the Juvenile Justice Board happens to be based upon collusive documents issued by concerned Madarsa. It has also been submitted that falsity of the certificate is itself apparent from the fact that Opposite Party No.2 does not know Urdu. It has also been submitted that date of occurrence of present case happens to be dated 02.01.2009. Opposite Party No.2 got himself married in the year 2010 wherein he himself disclosed his age as 21 years and on account thereof on the alleged date of occurrence, he was round about 20 years of age. 6. Taking into account the submission raised on behalf Patna High Court CR. REV. No.1239 of 2010 (7) dt.24-07-2013 3 of the petitioner, a report was called for from the Superintendent of Police, Katihar and same has been sent vide letter no. 2371 dated 12.07.2013. 7. From the report, it transpires that with regard to propriety of the certificate granted by Mahmudia Madarsa, it was disclosed that the date of admission was shown on 04.02.2007 while the transfer certificate was issued on 17.01.2008. In the aforesaid Mahmudia Madarsa, the date of birth has been shown as 22.10.1992. 8. With regard to marriage, the report further speaks that Opposite Party No.2 had married with Sharifun Khatoon, daughter of Md. Zarhasan on 10.06.2010. Any how Tanveer Alam has put his signature in Urdu while Sharifun Khatoon had sign in Hindi over the Nikaahnama. Sharifun Khatoon has been shown at 18 years while Opposite Party No.2 Tanveer Alam as 21 years. 9. Section 7A prescribes the process of enquiry to be conducted by the Juvenile Justice Board whenever such plea is raised. 10. There happens to be presence of two rules. The first one Bihar Juvenile(Care and Protection of Children)Rules, 2003 replaced by 2012 rule and the second one the Juvenile(Care and Protection of Children)Rules, 2007. The former rule happens to be Patna High Court CR. REV. No.1239 of 2010 (7) dt.24-07-2013 4 State rule formulated with the aid of Section 68 of the Act whole latter happens to be central rule but having no over riding effect. So far its application is concerned, the matter has already been properly scrutinized by the Division Bench of this Court under Cr.Revision No.1295 of 2010 and elaborately dealing with Section 68 of the J.J.Act, it has been held that Bihar Rules will be applicable within the province of Bihar and in terms thereof, now the procedure has to be traced whereunder an enquiry under juvenility for ascertaining the juvenility is to be conducted and the nature of documents to be relied upon for consideration apart from oral evidence. For such purpose, Rule 11 Sub-rule-3 of Bihar Juvenile Justice(Care & Protection of Children)Rules is to be taken into account. For better appreciation, the same is incorporated below.-: “(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 the Committee, as the case may be, by seeking evidence by obtaining: (a) (i) the matriculation or equivalent certificate, if available; and/or, (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 municipal corporation or a municipal authority or a panchayat; and (b) only in the absence of either (i) and/or (ii) or (iii) of clause (a) above, or in case the court or the board or the committee finds it Patna High Court CR. REV. No.1239 of 2010 (7) dt.24-07-2013 5 necessary, 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 recorded by them, may, if to be considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of 6 months and, while passing into orders 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 proof of the age as regards such child or the juvenile in conflict with law.” in such case shall, after taking 11. After going through Sub-rule 3, it is apparent that first of all the matriculation certificate to be taken into consideration and in absence thereof the date of birth certificate from the school first attended, in absence thereof birth certificate granted by Municipal Corporation/authority/Panchayat is to be considered and in case there happens to be absence of above referred three documents, then the medical opinion has to be sought for during consideration of which a margin of six months has been given. 12. From the order of the Juvenile Justice Board, it is apparent that no matriculation certificate was produced however the school register was also produced before it but it had not been incorporated by the Opposite Party No.2 whether the Opposite Patna High Court CR. REV. No.1239 of 2010 (7) dt.24-07-2013 6 Party No.2 had joined the aforesaid Madarsa as the school first attended by him, the only criteria falling under-II of Sub-rule 3 of rule 11. Therefore, there happens to be vagueness on this score and on account thereof the order impugned could not survive. In likewise manner, the order of the Appellate Court will automatically found to be erased as same is also based thereupon. Petition is allowed. The matter is remitted back to the learned Juvenile Justice Board to proceed a fresh in presence of both the parties. (Aditya Kumar Trivedi, J) B.Kr./-