IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.514 of 2008 Lal Babu Kumar @ Alatu son of Ram Nath Rai, resident of Village Silhauri, P.S. Marhowrah, District Saran, under Guardianship of Mangal Rai son of Chitan Rai, uncle of petitioner, resident of Village Silhauri, P.S. Marhowrah, District Saran …Petitioner Versus 1. The State Of Bihar 2. Ram Naresh Rai son of Late Munni Lal Rai, resident of Village Silhauri, P.S. Marhowrah, District Saran …Respondents ----------- For the Petitioner : Dr. Alok Kumar Sinha, Advocate Mrs.Raj Rashmi Sinha, APP For the Opposite Party: M/s.Dineshwar Mishra, Surendra Mishra No.2 For the State : Additional Public Prosecutor 4 3.3.2009 This revision application is directed against the order dated 9.4.2007 passed in Cr.Appeal No.7 of 2007 by Sessions Judge, Saran at Chapra by which he has dismissed the Criminal Appeal against the order dated 27.12.2006 passed by the Juvenile Justice Board, whereby the petitioner has been declared to be a major. Learned counsel for the petitioner submits that as per the certificate granted by the Bihar School Examination Board on 20.10.2005 the date of birth of the petitioner is entered as 30.11.1990 and as such the age of the petitioner would be about 16 years on the date of occurrence i.e.14.3.2006. He further submits that the certificate granted by the Bihar School Examination Board would prevail over the report of the Medical Board which is mere opinion regarding the possible age of a person. In support of his contention, learned counsel relied upon a decision of this court in the case of Sachin Kumar Gupta @ Sachin Kumar Vs State of Bihar & anr, 2008(2) P.L.J.R.800. He submits that the age recorded in the school certificate cannot be - 2 - rejected on the ground that it is not unusual for the parents to understate age of their children at time of admission in the school. Learned counsel for Opposite party no.2, on the other hand, submits that the school certificate does not inspire confidence as the petitioner had not produced the age certificate recorded in the Primary School. He further submits that as per the petitioner’s case while he was studying in K.P. High School, Silhauri he produced the certificate granted by the Government Middle School, Marhawrah and on enquiry it transpired that the petitioner never studied in the aforesaid government school. He submits that the Medical Board assessed the age of the petitioner on 5.6.2006 as 20 years and even the Juvenile Board on noticing the physical appearance of the petitioner assessed his age as 19-20 years. One of the issues arising in this case is whether as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 only documents mentioned in sub-rule (3) of Rule 12 could be considered. Rule 12 provides procedure to be followed in determination of age. Rule 12(2) states that age can be determined on the basis of physical appearance or documents if available. Rule 12(3) states while making an inquiry the Committee would seek evidence by obtaining school certificate. In this regard the matriculation or equivalent certificate has been given primacy followed by certificates from school first attended and the certificate granted by a Corporation or Municipal authorities or a Panchyat. - 3 - As per rule 12(3)(b) only in absence of any of these certificates, the medical opinion would be sought for. This court in the case of Sachin Kumar Gupta (supra) has held that in case any of the three documents mentioned in rule 12(3) is produced and the genuineness thereof is not disputed, the Board or competent authority is left with no discretion in the matter and it cannot even call for a report of the Medical Board. The aforesaid issue also came for consideration in the case of Bir Bahadur Singh @ Tinku Singh Vs State of Bihar, 2009(1) PLJR 116. In the aforesaid case this court noticed the provisions mentioned in section 49 of the substantive Act namely Juvenile Justice (Care and Protection of Children) Act, 2000. As per section 49 a competent authority while determining the age of a juvenile shall make due enquiry as to the age of that person and for that purpose shall take such evidence as may be in existence. In the aforesaid case, this court held that Rule 12(3) supplements section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000. On perusal of both the provisions, it would appear that matriculation or equivalent certificate has been given due primacy over other school certificates and certificate granted by the Corporation as well as the opinion of the Medical Board. This court was, however, observed that if there are reasons to doubt the matriculation certificate, the court determining the age would be competent to take further evidence in view of the substantive provisions contained in section 49 of the Act. It would be - 4 - relevant to quote paragraph 19 of the order passed in the case of Bir Bahadur Singh (supra): “19. Moreover, there has to be strong reason for doubting the age mentioned in certificates enumerated in categories 12(3)(a) e.g. where an earlier deposition in respect of age is in conflict with age in such certificates the competent authority is not precluded from taking any further evidence for satisfying itself. The second broad example would be one where the very physical appearance of the person would not conform to the age given in such certificates and instances of the like.” The intend of the legislature is not to prohibit the court from satisfying itself regarding the genuineness or otherwise of such certificate. Even the Apex Court in the case of Bhoop Ram Vs State of U.P., 1989 SC 1329 observed that the court is competent to examine and satisfy itself whether entries and particulars mentioned in the certificate is correct or not and if the entries entered in the certificate seems doubtful, the court can take evidence. There is no denying the fact that the age assessed by the Medical Board is mere opinion and there is always possibility of error in making such estimation. The scientific test only provides a due approximation and not always the exact assessment of age. The Apex Court in the case of Jyoti Prakash Rai, reported in 2008(3) PLJR 280 SC has held that age determined by the Doctor should be given flexibility of two years on either side. In the instant case, the Juvenile Board estimated the age of the - 5 - KHAN petitioner to be 20 years whereas as per the Medical Board his age was assessed to be 19-20 years. The petitioner had not produced age certificate from school first attended rather has produced certificate of Marhowrah school where he did not study. The certificate dated 20.10.2005 of Bihar School Examination Board show the date of birth of the petitioner as 30.11.1990 and as such he would be about 16 years on the date of occurrence i.e.14.3.2006. The Opposite party has not produced any material on record to doubt the School Leaving Certificate, as well as registration certificate of Bihar School Examination Board. For the reasons mentioned aforesaid, I accordingly set aside the impugned order dated 9.4.2007 passed in Cr.Appeal No.7 of 2007 and remit the matter to the Juvenile Board for fresh consideration in light of observation made in this order. This court makes it clear that it has not expressed any opinion whether the petitioner is a juvenile or not. In the result, this revision application is allowed to the extent indicated above. (S.P.Singh,J)