At Present Confined In Central Jail, Jaipur) The State Of Rajasthan, Through Pp v. For

: Mr. Anoop Pareek For Respondent(s) : Mr. Amit Punia, PP ----Petitioner ----Respondent HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 17/02/2025 Order

1. Instant S.B. Criminal Bail Application is preferred by applicant-accused Shivam Shankhwal in a matter arising out of FIR No. 569/2024 P.S. Shivdaspura, Jaipur City (South). On earlier occasion bail application No. 10209/2024 was dismissed by this Court on 16.10.2024.

2. Learned counsel for applicant submits that applicant- accused is an innocent person and he was falsely implicated in the instant case. He further submits that the petitioner was arrested on 20.07.2024 and since then he is in custody. He further referred the order dated 16.01.2025 passed by learned Additional Sessions Judge (Women Atrocities Cases), Jaipur Metro-I, wherein an ossification test was ordered and the age of petitioner was determined between 18-21 years, and there is over-writing to [2025:RJ-JP:7005] (2 of 5) [CRLMB-2167/2025] declare petitioner as an adult. At last, he submits that the applicant has claimed juvenility on date of incident, therefore, he is entitled to get benefit of bail.

3. Aforesaid contentions were opposed by learned Public Prosecutor.

4. Heard learned counsel for appellant and learned Public Prosecutor. Perused the material placed on record.

5. A perusal of record reflect that complainant (father of victim) has filed an FIR on 15.07.2024 for kidnapping of his minor daughter by present applicant and others. After registration of FIR No. 569/2024 under Section 137(2) of BNS, the victim was recovered in pursuant to investigation on 18.07.2024 and her statement under Section 161 and 164 Cr.P.C. were recorded. The medical of victim was conducted on 20.07.2024.

6. During investigation, present petitioner was arrested on

19.07.2024, and police has filed charge-sheet for offence under Section 137(2), 87 BNS and Section 84 of Juvenile Justice Act.

7. As per record, the date of birth of victim is 11.04.2013 whereas date of birth of present applicant is 20.05.2005. The age of victim is less than 14 years on date of incident. The victim was minor and the charge-sheet has been filed under the BNS and JJ Act. While considering the first bail application on 16.10.2024, the counsel for complainant has argued that the offence under the POCSO Act is attracted but both police and Trial Court have not taken note of the grievance of complainant.

8. The counsel has further referred the order dated 16.01.2025 in sessions case No. 403/2024 passed by learned Sessions Judge (Women Atrocities Act), Jaipur Metro-I, wherein learned Judge [2025:RJ-JP:7005] (3 of 5) [CRLMB-2167/2025] while considering the application under Section 9 of Juvenile Justice (Care and Protection of Children) Act, 2015 has directed ossification test of present applicant-accused on basis of judgment in case of Dayachand Vs. Sahib Singh and Anr. (1991) 2 SCC

9. As per ossification report the age of present petitioner is between 18 to 21 years. This ossification report dated 23.01.2025 was procured under the orders of learned Trial Court. After enactment of the Juvenile Justice (Care and Protection of Children) Act, 2015, Section 94 was inserted for determination of age and we are reproducing the same as under:- “1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without further confirmation of the age waiting 2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; [2025:RJ-JP:7005] (4 of 5) [CRLMB-2167/2025] (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. 3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

10. In case of P. Yuvaprakash Vs. State Rep. By Inspector of Police 2023 INSC 626 Hon’ble Supreme Court while considering the judgment in case of Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal (2012) 9 SCR 244, Sanjeev Kumar Gupta Vs. The State of Uttar Pradesh (2019) 9 SCR 735 and Rishipal Singh Solanki Vs. State of Uttar Pradesh (2021) 12 SCR 502 considered Section 94 of Juvenile Justice Act and observed that the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available then the age has to be determined on this basis alone but in absence of certiificate from school board, birth certificate given by Corporation or a Municipal Authority or a Panchayat has to be considered for determination of age. Only in absence of birth certificate, age shall be determined by an ossification test or any other latest medical age determination test. It means that the Trial Court was not at liberty to order for ossification test in most causal manner. [2025:RJ-JP:7005] (5 of 5) [CRLMB-2167/2025]

11. It appears that the Trial Court was ignorant of latest legal position and it has not maneuvered to search data-base or latest law while passing an order for ossification test. Herein, this ossification test has no relevance when the certificate as prescribed under Section 94(2)(i) to determine date of birth is available and filed on record by police.

12. Having considered the submission and also legal position, the applicant-accused is not entitled for bail as the age of victim was less than 14 years on date of incident, thus looking to gravity of the offence the bail application of applicant is liable to be dismissed.

13. A copy of this order be sent to Judicial Officer concerned through Registrar General of this Court for ready reference. MONU /07 (ASHOK KUMAR JAIN),J