IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.40303 OF 2008 1. MANOJ CHAUDHARY, 2. RAJU CHAUDHARY 3. PRAMILA KUMARI ALL SONS AND DAUGHTER OF LATE BAHARAN CHAUDHARY THROUGH THEIR MOTHER AND NATURAL GUARDIAN GEETA KUER, WIFE OF LATE BAHARAN CHOUDHARY, RESIDENT OF VILLAGE DUDHIAWA, POLICE STATION NAWALPUR, DISTRICT WEST CHAMPARAN …………………………………………………………………………PETITIONERS VERSUS THE STATE OF BIHAR ***** 3 28/07/2011 This Court is not issuing notice to the informant, as it is a State case and thus the interest of the informant is amply represented by the State Counsel. Counsel for the petitioners submits that all the petitioners are below the age of 12 and are, therefore, protected under Section 83 of the Indian Penal Code. Section 83 of the Indian Penal Code envisages that “nothing is an offence which is done by a child about 7 years of age and under 12, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion”. On perusal of the impugned order dated 19.02.2008, it appears that the Chief Judicial Magistrate has noted that the Deputy Superintendent of 2 Police and the Superintendent of Police had both directed the Investigating Officer to make an investigation for the purposes of determining the age of these three petitioners. Apparently, it was not done. On the basis of the fact, that in the case diary, the case has been found to be prima facie true, cognizance has been taken. In my opinion, and that would be the law and matter of prudence, the Chief Judicial Magistrate ought to have asked these three petitioners to appear in person before the Court to assess their ages. If the Court found that prima facie they would be below the age of 12 years on the alleged date of occurrence, the obvious consequence would be that they ought to have been exempted and discharged in this case. In case, there was doubt in the mind of the Court, in that case if the children were not studying in any school and there was no document to prove their ages, the Court below ought to have constituted a Medical Board to determine their ages. Accordingly, the order taking cognizance dated 19.02.2008 passed in Jogapatty (Navalpur) Police Station Case No. 166 of 2007 by the Chief Judicial Magistrate, West Champaran, Bettiah is hereby quashed and the matter is remanded back to the Chief 3 Judicial Magistrate, Bettiah, West Champaran to act in accordance with the suggestions made in this order. Counsel for the petitioner is directed to produce a copy of this order before the Chief Judicial Magistrate, Bettiah, West Champaran or the concerned Court where the matter is pending within a period of one month from today, failing which this application shall stand dismissed. This application is allowed to the extent indicated aforesaid. Anand (Sheema Ali Khan, J.)