IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.666 of 2009 AMIT KUMAR SINGH @ PHULTUN S/O- RAJ KUMAR SINGH @ (SHARMA) RESIDENT OF VILLAGE-USTI SINGAHI, P.S.- PAROO, DISTT.-MUZAFFARPUR, AT PRESENT RESIDING AT MOHALLA- B.B. GUNJ, I.G. COLONY, P.S.- SADAR, DISTT.-MUZAFFARPUR Versus 1. THE STATE OF BIHAR 2. SHIV CHANDRA RAI, S/O- MANIPAT RAI, RESIDENT OF VILLAGE- PAKRI PAKOHI, P.S.- KARJA, DIST.- MUZAFFARPUR. For the petitioner : Mr. Sunil Kumar Verma, Advocate. For the O.P : Mrs. Bela Singh, Advocate For the State : Mr. Jharkhandi Upadhyay, APP ----------- 3 17.08.2010 Petitioner was named as an accused in an F.I.R. that was lodged on 1.6.2003 under Sections 364A and 120B IPC in respect of an occurrence that had taken place on 31.5.2003. He was refused regular bail by the two courts below. He moved this Court for bail in Cr. Misc. no. 13853 of 2004 wherein it was submitted that the petitioner was a student of C.B.S.E. course and was aged about 17 years, hence a juvenile. A Bench of this Court considered the matter on merit and rejected the same. So far as the claim regarding juvenility is concerned, this Court while rejecting the bail application, observed as under: “ In so far as the arguments about petitioner being juvenile is concerned, the petitioner may make appropriate prayer before the designated lower Court where this matter may be enquired into in accordance with law.” The trial was taken up vide Sessions Trial No. 145 of 2004. On conclusion, when the case was fixed for arguments, an application dated 2.8.2008 (Annexure-7) followed by another application dated 10.12.2008 (Annexure-8) were filed on his 2 behalf claiming himself to be a juvenile (below 18 years of age) on the date of occurrence i.e. 31.5.2003. The petitioner made the following averments in paragraph 3 of the application dated 2.8.2008: “3. That the petitioner has past All India Secondary School Examination in the year 2000 and as per the Certificate granted by the Central Board of Secondary Education the date of birth of the petitioner is 9.1.1986 and as such the petitioner age on the relevant date was seventeen years and about four months that is definitely below 18 years.” In the subsequent application (Annexure-8), it was averred that the petitioner was admitted in Class VI on 3.4.1995 in Jaintpur Public School, Maripur, Muzaffarpur. It appears that the petitioner raised his claim based on Admit Card (Annexure-5) issued by the Central Board of Secondary Education, Delhi (hereinafter referred to as the C.B.S.E.) wherein his date of birth has been recorded as 09.01.1986. Learned trial court initiated an inquiry in terms of the provisions of Section 7A of Juvenile Justice (Care and Protection of Children) Act (for short the Act). Having found questionable delay in raising the said grievance before the Trial court and having considered the statements made in Annexures-7 and 8, the court below called for the School Admission Register from Jaintpur Public School, Maripur, Muzaffarpur. The admission register was produced in the inquiry in which his date of birth was found recorded as 09.1.1985. Learned trial court on a consideration of the entire facts emanating from the record rejected the application(s) filed by the 3 petitioner on 28.2.2009 concluding as under: “Perused the record. It appears that the petitioner filed a petition on 2.8.08 annexing a copy of the admit card of Central Board of Secondary Education in which the date of birth of the petitioner is mentioned as 9th January, 1986. The petitioner was admitted in Jaitpur Public School. The admission register of Jaitpur Public School was called for and it appears that in the admission register of Jaitpur Public School, the date of birth of the petitioner Amit Kumar alias Phultun is mentioned as 9.1.1985. He was admitted in Jaitpur Public School in Class VI. The petitioner has not produced the certificate of his admission in Class-I. There appears to be dispute with regard to the date of birth of the petitioner and according to the date of birth mentioned in the school register the petitioner was more than 18 years on the date of occurrence. Hence I do not find any merit in the petitions of the petitioner Amit Kumar alias Phultun. Accordingly the same is dismissed.” This is the order which is impugned in the present application. Let it be recorded that the petitioner was subsequently convicted by the learned trial court which was appealed against by the petitioner vide Cr. Appeal no. 1094/2009 (D.B.). The prayer for bail of the petitioner stood rejected by order dated 18.2.2010 in the following manner: “Considering the allegation and facts and circumstances of the case, we are not inclined to enlarge the appellant Amit Kumar @ Fultun on bail. Accordingly, his prayer for bail is rejected for the present. However, he is at liberty to renew his prayer for bail after disposal Cr.. Rev. no. 666 of 2009 pending before this Court. “ Learned counsel for the petitioner submits that the order impugned passed by the learned trial court is illegal and perverse. It is stated that the learned trial court has not placed 4 reliance on the Admit Card issued by the C.B.S.E. (Annexure-5) which was a valid document. He relies on a judgment of this Court reported in the case of Md. Sonu vs State of Bihar since reported in 2010 (2) P.L.J.R. 317. Particular reliance has been placed on paragraph no. 4. It is next contended that apart from the aforesaid document, the petitioner had also filed supporting documents Annexures 3 and 4 which have not been taken into account by the learned trial court. Learned counsel appearing on behalf of the informant and State, on the other hand, submits that the court below has made an inquiry in terms of the provisions of the Act and thereby has come to a conclusion that the belated application filed on behalf of the petitioner based on Admit Card issued by C.B.S.E. was not justified. It is stated that the learned trial court rightly rejected the same in view of the submissions made on behalf of the petitioner that he was admitted in Class-VI in Jaintpur Public School, Maripur, Muzaffarpur. On such claim being raised, learned trial court summoned the school admission register and found therefrom that the date of birth recorded therein is 9.1.85. Admitted position is that if the date of birth of the petitioner is accepted as 9.1.1986, then he was juvenile on the date of occurrence and if the same is treated to be as 9.1.85, the privilege granted under the Act cannot be extended to the petitioner. I have heard counsel for the parties at length and 5 perused the materials on record including the impugned order. It is settled law that a claim regarding juvenility can be raised at any stage of the proceeding. However, it is also settled law that once such a claim is raised, the Court has to consider whether it has been filed for oblique reasons and thus fend it against such frivolous applications. The Court acting in its own discretion has to make an inquiry in terms of the provisions of the Act and the Rules framed thereunder. The legislatures have framed a rule called the Juvenile Justice (Care and Protection of Children) Rues, 2007 which sets out the manner in which the inquiry has to be made. Section 12(3) of the said Rules (as amended up to date) reads as under “12(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, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing order 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 6 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.” A bare perusal of the aforesaid Rule would show that the Court has to place reliance first on the matriculation or equivalent certificate, if available, and thereafter the court has to rely on the following documents filed in support of the claim. (i) the date of birth certificate from the school other than a play school first attended. (ii) The date of birth certificate given by a Corporation or a Municipal Authority . Only in absence of either of them, the option to resort to medical assistance is to be gone into if the facts of the case so warrant. I have indicated at the outset that the claim of juvenility was raised for the first time on 2.8.2008 (Annexure-7). Such claim was raised based on a certificate with regard to passing of All India Secondary School Examination held in the year 2000. But the petitioner in course of inquiry anchored his claim based on Annexure-5 which is Admit Card issued by the C.B.S.E. It can further be seen from Annexures-7 and 8 that in order to support the aforesaid claim, it was averred in the subsequent application dated 10.12.2008 (Annexure-8) that the petitioner was admitted in Class VI on 3.4.1995 at Jaintpur Public School, Maripur, Muzaffarpur. It thus appears that no other document was filed and relied upon in course of inquiry by the petitioner. In view of 7 the stand taken by the petitioner, the learned trial court called for the admission register from the said school which was produced in the proceeding. On a perusal of the said register, it was found that his date of birth recorded therein was 9.1.1985 and not 9.1.1986. This Court reminds itself that initially the claim was made on the ground that he has passed the said examination and he had in his possession, the pass certificate issued by the C.B.S.E. Certificate was however, not produced. Learned court below on a consideration of the materials on record came to the conclusion that the petitioner was not juvenile in conflict with law as he was definitely 18 years plus age on the date of occurrence. Learned counsel for the petitioner has placed reliance on a judgment of this Court rendered in the case of Md. Sonu (supra). That was a case where the photo copy of the certificate issued by Bihar School Examination Board was not accepted and relied upon holding that it was just a photo copy. In that context, this Court observed that if there is a photo copy of the pass certificate issued by the Board, the court ought to have called for the original from the concerned examination Board. In my view, the case relied upon by learned counsel does not help him. On the contrary, this Court is in agreement with the submissions advanced on behalf of the informant and the State that the Rules which have mandatory force set out chronologically, the documents which have to be given primacy and relied upon while deciding the issue of juvenility. Petitioner although claimed in his 8 petition that he has passed the C.B.S.E. examination but for the reasons best known to him, the same was not produced and relied upon. The finding of the court quoted hereinabove, therefore, is based on correct appraisal of law and the facts that were placed before the Court and there is no reason to interfere therewith. There is no merit in this application. It is accordingly dismissed. pkj ( Kishore K. Mandal, J. )