1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 330 OF 2010 JAHANGIR KHAN FAKIR KHAN PATHAN V/S THE STATE OF MAHARASHTRA ... Shri Deepak S.Manorkar, Advocate for the petitioner and Shri N.R.Shaikh, APP for respondent ... CORAM : S.B.DESHMUKH & S.S.SHINDE,JJ. Dated : 6.8.2010 PER COURT :- 1. We heard learned counsel Shri Manorkar for the petitioner. 2. In the earlier order passed by this Court on 30.7.2010, time to file rejoinder was sought on behalf of the petitioner and was granted by this Court. The matter was adjourned for filing of the rejoinder by the petitioner. Thereafter, rejoinder is not filed by the petitioner is an admitted position. Today we have confronted learned counsel for the petitioner with this position and sought to know from him, whether the petitioner wants time for filing rejoinder. His reply is in negative. According to him, petition can be considered on the basis of pleadings which are on record as of today. 3. Rule. By consent, Rule made returnable forthwith. 2 4. Petitioner, on the date of filing of this writ petition, aged 40 years, as mentioned by him, approached this Court with following prayers :- "(A) The Writ Petition kindly be allowed; and (B) Petitioner may be sent to Government Hospital for medical examination of Ossification test to determine his age. (C) By issuing appropriate Writ necessary orders directing the petitioner be ordered to be released according to sect.7- A of the Juvenile Justice (Care and Protection of Children) Act, 2000 Amendment Act of 2006. (D) As the petitioner is in Jail his affidavit may kindly be exempted." Amongst these prayers, the prayer made in prayer (B) seems to be the principal prayer. Prayer (C) seeks direction for release of the petitioner, who is lodged in jail, in accordance with sect.7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 Amendment Act of 2006. This petition appears to have been filed by the petitioner on 26.3.2010. 5. In response to our notice, affidavit in reply is filed on behalf of respondent. It has been affirmed by Bajarang Malode, Police Sub 3 Inspector, Ashti Police Station, Ashti, District Beed. It is the con ention of the petitioner that his date of birth is 3.2.1970. In sputably, the date of offence in question is 17.5.1987. In this writ pet tion, the petitioner claims that on the date commission of offence he was 17 years 3 months and 16 days old i.e. his status was juvenile in con lict with law. In support of his contention he has annexed annexure “D” - copy of birth certificate purported to have been issued by Village Dev lopment Officer, Ashti, District Beed. It appears that it is a true copy iss ed by the concerned officer on 14.12.2009. In this document, name of the person who took birth is mentioned as Jahangir (petitioner). Birth pla e is shown as Ashti. Name of the father of the petitioner is shown as Fak rkhan. Name of the mother of the petitioner is also mentioned as Tam ejbee, which is not seriously disputed. Date of birth of the pet tioner is mentioned as 3.2.1970. 6. Learned APP points out the averments made in paragraph No.3 of the affidavit in reply. It is stated in paragraph No.3 of the affidavit in reply that affiant had visited the office of Gram Panchayat Ashti for verification of truthfulness of document Exhibit “D” annexed to the petition by the petitioner. The information which affiant has received is a status of Exhibit “D” as a doctored document. He claims that it is fabricated at the instance of the petitioner Officer has made an enquiry and also verified the original register maintained by the Gram Panchayat, Ashti. The affiant found that entry in register as regards date of birth as 4 3.2.1970 purportedly in favour of the petitioner is missing chronological number. According to him, in inner side Serial No.11 is mentioned. Entry No.11 is shown in the name of the different person i.e. Shivnarayan Soni and date of birth recorded is 3.3.1970. Affiant reached to the conclusion that Annexure ‘D” is doctored, fabricated document. Learned APP point out from paragraph No.5 of the affidavit in reply. We have seen Annexure R/2 annexed with this affidavit. In paragraph No.5 of the said affidavit, a statement is made that on the date of commission of the offence i.e. on 17.5.1987, age of the petitioner was 25 years, 3 months and 12 days. 7. Principal prayer made by the petitioner could be considered if this Court, based on the material produced by the petitioner reached to the conclusion that such test for determination of the age of the petitioner on the date of offence is necessary. Indisputably, in view of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, burden of proof in relation to date of birth is on the petitioner Prima facie, from paragraph No.4 of the affidavit in reply it appears that the date of birth of the petitioner is mentioned at once place as 5.2.1962. Said date appears to have been mentioned in paragraph No.4 by the affiant on the basis of the enquiry made by him with the Zilla Parishad School at Watanwadi, Tq. Ashti, District Beed, where the petitioner took education from I to IV standard. School Leaving Certificate has been obtained by the affiant and he found that date of birth in said certificate 5 mentioned of the petitioner is 5.2.1962. The affiant did not stop there. It appears that he has taken efforts to visit Zilla Parishad Primary School at Jalgaon, Tq. Ashti, District Beed. He found there that date of birth of the petitioner is 5.2.1962, which corroborates the record maintained by Zilla Parishad Primary School at Watanwadi, Taluka Ashti, District Beed. Said document Annexure R/2 is perused by us. 8. In our view, prima facie, statements made in the affidavit in reply by the affiant are based on the admissible documentary evidence maintained by the public servants. Incidentally, it is to be recalled that on receipt of copy of this affidavit in reply time was granted in favour of the petitioner to controvert the contentions, if the petitioner desires to do so. On behalf of the petitioner such opportunity is not exhausted, contrary a submission is made to decide the matter on the basis of the material available on record. In our view, no case is made out by the petitioner for issuing writ as prayed for by the petitioner in this writ petition. 9. In the result, Writ Petition stands dismissed. Rule discharged. No order as to costs. (S.S.SHINDE,J.) (S.B.DESHMUKH,J.) ... akl