1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.1134 OF 2009 Virendra Ayodhya Mourya : Applicant V/s. The State of Maharashtra : Respondent .... Mr.A.K. Upadhyay for the applicant. Mr.S.N.Gawade, Addl. Public Prosecutor for the State. Mr.S.K.Shinde for the original complainant. .... CORAM : S.A. BOBDE, J. DATE : AUGUST 11, 2009. P.C.: Rule, returnable forthwith. Mr.Gawade, the learned Addl. Public Prosecutor for the State, waives service. Heard by consent. 2. The applicant has challenged the order dated 1.8.2008 of the Asstt. Sessions Judge-3, Nashik, holding that the applicant was not a juvenile on the date of the commission of the offence. From a plain reading of the order, it appears that the learned Asstt. Sessions Judge has 2 upheld the view of the Magistrate that the applicant is not a juvenile, inter alia, on the basis of the certificate issued by the Village Development Officer from the native place of the applicant. While doing so, the Courts below have ignored the matriculation certificate admittedly filed by the applicant. The learned counsel for the applicant relied on rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Rule 12 reads as follows:- “12. Procedure to be followed in determination of Age.-- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (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 3 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 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 orders 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. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the 4 certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” The above rule lays down vide sub-rule (3) that an inquiry for determining the age shall be conducted by the Court by seeking evidence by obtaining the matriculation or equivalent certificates, if available, and in the absence whereof, the date of birth certificate given by the Corporation or a Municipal authority or a panchayat. The authority i.e. Court or the Board is called upon by the rule to record a finding in respect of his age and the rule further provides that the offence specified in clauses (a)(i), (ii) and (iii) and in absence thereof clause (b) shall be conclusive proof of the age as regards such child or the juvenile in conflict with law. It was, therefore, not open for the learned Asstt. Sessions Judge to ignore a matriculation certificate and rely on the certificate issued by the Village Development Officer for determining the age. 3. Accordingly, the impugned order is set aside. The matter is 5 remanded back to the Asstt. Sessions Judge for a fresh determination, in accordance with law. Criminal Application stands disposed of. S.A. BOBDE, J.