IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1051 of 2008 CHANDAN MISHRA Versus 1. THE STATE OF BIHAR & 2. SANJAY KUMAR MISHRA ----------- 11 27.07.2010. Heard Sri Rajiv Kr.Verma, learned Senior Advocate for the petitioner, Sri D.Choudhary for the State and Sri N.K. Prasad for the private respondent. The petitioner prays for setting aside order dated 18.4.2008, passed in Cr. Rev. No. 7 of 2008, whereby the Revisional court has affirmed the order dated 13.11.2007, passed by the Chief Judicial Magistrate, Buxar in Buxar (Industrial) Police Station Case No. 50 of 2007, GR case no. 109/2007. The instant case has been lodged by one Sanjay Kumar Mishra alleging that the petitioner and 3 to 4 other accused persons came to his house and on order of his father, the petitioner fired causing injury near armpit of informant’s younger brother. Petitioner was caught after chase. The occurrence dated 7.8.2007 led to institution of Buxar (Industrial) Police Station Case No. 50 of 2007 lodged under sections 147,148,149,307/302 and 504 I.P.C. and under the Arms Act. The petitioner took a plea in the court below that he is a juvenile. In support of his plea, he produced Character certificate and Board certificate granted by Madhyamik Siksha Parishad, Uttar Pradesh, wherein his date of birth was recorded as 18.9.1989. It is submitted that the court below erred in not considering the aforesaid 2 certificates which would have shown that the petitioner was less than 18 years of age on the date of occurrence. It would appear from the impugned order passed by the Chief Judicial Magistrate, Buxar that despite opportunities, petitioner did not produce his mother during enquiry, as such, his plea of juvenility was rejected. The revision preferred by the petitioner too was dismissed. The petitioner submits that on account of some communication gap as the petitioner was in custody, his mother could not appear before the Chief Judicial Magistrate, Buxar. Thus, he submits that in the interest of justice, an opportunity may be granted to him to show that he is a juvenile and if he is held a juvenile, then his incarceration in jail for almost three years would be in violation of sections 12,15 of the Juvenile Justice (Care & Protection of Children) Act, 2000. Learned counsel for the informant submits that the petitioner was given sufficient opportunity by the learned court below to prove his juvenility. Despite opportunities even his mother did not appear before the Chief Judicial Magistrate, Buxar in support of plea of his juvenility. I am inclined to grant one last indulgence to the petitioner to produce evidence in support of his claim of being a juvenile. The impugned order rejecting the plea of juvenility of petitioner, passed by Revisional court as well as by the court of Chief Judicial Magistrate, Buxar dated 13.11.2007 & 18.4.2008 are set aside. 3 The Chief Judicial Magistrate, Buxar is directed to determine the age of petitioner preferably within a period of three weeks from the date of receipt/production of a copy of this order. This Court has not expressed any opinion on the merits of claim of either parties. I.A.No.1922/2009 filed for stay of proceeding in Sessions trial No. 212/2008 is disposed of with observation that this court is not inclined to stay the proceeding in the trial court. In case, petitioner succeeds, he can reap the advantage of having been declared juvenile at any stage. Let this order be communicated to the court of Chief Judicial Magistrate, Buxar above through FAX at the cost of the petitioner. The writ petition stands disposed of accordingly. Shashi. ( Samarendra Pratap Singh, J.)