M.M.DAS, J. CRLMC. NO.3673 OF 2011 (Decided on 31.10.2011) SIMANCHAL BEHERA @ KUNA @ ROWDY ……..Petitioner .Vrs. STATE OF ORISSA ……..Opp.Party A. JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) ACT, 2000 (ACT NO.56 OF2000 ) – S.2(I). B. JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN ) ACT, 2000 (ACT NO. 56 OF2000) – S.7-A. C. JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) RULES 2007 - RULE -12. For Petitioner - M/s. S.R.Mulia, R.C.Mohapara, M.Mulia, R.R.Nayak & H.K.Singh. For Opp.Party - Mr. R.P.Mohaptra, Addl.Govt. Advocate. M.M. DAS, J. The petitioner in this application under section 482 of the Code of Criminal Procedure, 1973 has called in question the order dated 22.9.2011 passed in G.R. Case No. 457 of 2011 by the learned S.D.J.M., Bhubaneswar. 2. The facts reveal that the petitioner was forwarded to the court of the learned S.D.J.M. in connection with the aforesaid G.R. Case as accused for commission of offence under sections 147/148/341/376/323/302 IPC read with sections 25/27 of the Arms Act by the I.I.C., Kharavelanagar Police Station, mentioning the age of the petitioner as 19 years. A petition was filed on behalf of the petitioner under section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, ‘the Act’) to declare him as a juvenile and to send him to the Juvenile Justice Board for his trial. After filing of the aforesaid petition, the learned S.D.J.M. made an enquiry and examined three witnesses, who are the Principal of Biju Patnaik Science and Technology, a teacher of the High School and the Principal of Venkateswar English Medium School, Bhubaneswar. 3. After hearing the parties, the learned S.D.J.M. disbelieving the evidence of the P.Ws and taking note of the discrepancies with regard to the date of birth of the petitioner, rejected the application with regard to the claim of the petitioner that he was a juvenile. 4. In the impugned order, the learned S.D.J.M. vividly discussing the evidence adduced by the P.Ws 1 to 3 and the entries made in the school admission register and taking note of the contentions raised before him as well as the decision in the case of Brij Mohan Singh v. Priyabrat Narain Sinha, AIR 1965 SC 282 rejected the plea of the petitioner. In the case of Brij Mohan Singh (supra), the Supreme Court made an observation that in actual life, it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he could have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. 5. Mr. Mulia, learned counsel for the petitioner drawing the attention of this Court to the definition of “Juvenile in Conflict with Law”, provisions under section 7-A of the Act as well as Rule 12 of the Rules framed under the said Act submits that the learned S.D.J.M. has not proceeded in accordance with law while determining the age of the petitioner. He further submits that if the learned S.D.J.M. did not accept the date of birth of the petitioner as claimed, the only alternative on his part was to send the petitioner for medical opinion with regard to his age. 6. Mr. Mohapatra, learned counsel for the State, on the contrary, submits that the petitioner is not a juvenile and had it been such, the Investigating Officer would have mentioned the same in the charge sheet and the matter could have been proceeded under the Act. According to him, since the petitioner is not a juvenile, he has been rightly produced before the court and the learned S.D.J.M. also minutely scrutinizing the materials produced before him rightly came to the conclusion that the claim of the petitioner should be rejected. 7. To determine the question as to whether the learned S.D.J.M. has followed the procedure as required under law, it is necessary to quote the definition of “Juvenile in Conflict with law” as given in clause (l) of section 2 of the Act, section 7-A of the Act and Rule -12 of the Rules framed under the Act, which are as under:- “2. Definitions: In this Act, unless the context otherwise requires,- (a) to (k) xx xx xx (l) “Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteen year of age as on the date of commission of such offence.” “7-A. Procedure to be followed when claim of juvenility is raised before any Court.- (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the 2 rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect.]” “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, 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 appearances 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 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 wit 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 3 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 7-A, 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 certificate or any other documentary proof referred to in sub-rule(3) of this rule. (6) The provisions contained in this rule shall 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.” 8. The definition clause clearly shows that a person, if has not completed 18 years of age as on the date of commission of such offence, will be considered to be a juvenile in conflict with law. Section 7-A of the Act empowers the court to make an enquiry wherever a claim is made that the accused is a juvenile and take such evidence as may be necessary. The proviso to section 7-A also clearly stipulates that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case and such claim shall be determined in terms of the provisions contained in the Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the Act. (emphasis supplied) Rule 12 (3) clearly stipulates the procedure to conduct the enquiry by the court or the Board, as the case may be. Sub-rule (3) (a) of Rule -12 further prescribes the nature of documents which can be taken as evidence for determination of the date of birth. Sub-rule (3) (b) provides that in the absence of such evidence, the medical opinion will be sought for from a duly constituted medical board which will declare the age of the juvenile or child. Even it provides that in case the exact assessment of the age cannot be done, the court for the reasons to be recorded by it 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. The court is also required to record a finding in respect of the age after taking into consideration the medical opinion where evidence of the nature prescribed in sub-rule (3) (a) is not available and the medical report shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. 9. The nature of evidence adduced in this case by the petitioner does not come under sub-rule (3) (a) of Rule -12 as the evidence is not any of the type as mentioned in clauses - (i), (ii) and (iii) of sub-rule (3)(a) . It was, therefore, incumbent upon the learned S.D.J.M. to send the petitioner for medical opinion of a duly constituted medical board. 10. It may be noted that the age of the petitioner is required to be considered as on the date of commission of the alleged offence as per the definition clause. 4 11. In view of the above, the impugned order dated 22.9.2011 is set aside having been passed not following the procedure of law and the matter is remitted back to the learned S.D.J.M., who is directed to refer the petitioner for medical opinion by a duly constituted medical board as per rule 12 (3) (b) and after obtaining such report to consider the same as conclusive proof of age of the petitioner and pass a fresh order supported by reasons by considering his age on the lower side within the margin of one year and then arriving at a finding with regard to his age as on the date of occurrence. Till the learned S.D.J.M. decides the question of juvenility of the petitioner, he shall not proceed with G.R. Case No. 457 of 2011. 12. The CRLMC is accordingly allowed. Application allowed. 5