IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.138 of 2011 Rajesh Mahto son of Daroga Mahto Resident of village Kouwahan Laxmipur, P.S. Chanpatia (Sirisia O.P), District West Champaran represented through Daroga Mahto father and natural guardian of the petitioner ………..Petitioner. Versus 1.The State Of Bihar 2. Dhebar Ram son of late Nathu Ram, resident of village Laxmipur, Tola Kauohan, P.S. Chanpatia Sirisia O.P), Dist. West Champaran ..O.Ps. ------------- For the petitioner : Mr. Sanjay Kumar No.7 For the O.P. No.2 : Ms. Archana Jha, Advocate For the State : Mr. Indu Balal Pandey, A.P.P. --------- 3 19.08.2011 The accused petitioner has preferred this revision application under section 53 of the Juvenile Justice (Care & Protection of Children) Act, 2000 against the order dated 16th September 2010 passed by the learned Sessions Judge, Bettiah, West Chamaparan in Cr. Appeal No. 50 of 2010 by which the order dated 3.7.2010 passed by the learned Juvenile Justice Board, in Juvenile Justice Board Case no. 333 of 2010 arising out of Chanpatia P.S.Case no. 160 of 2009 for the offence punishable under section 376 of the Indian Penal Code has been affirmed and the appeal has been rejected. It is submitted that on the date of occurrence that is 19.08. 2009 the petitioner was a juvenile. He filed a petition that he is aged about 12 years and therefore, he may be declared a juvenile. An inquiry was conducted by the Juvenile Justice Board. On an application filed by the informant , a report was called for from the Govt. Primary School Kauwaha. The Headmaster appeared with the admission register of the school 2 and he was examined as witness no.1 on behalf of the informant and he stated that the petitioner was never a student of his school and the contention of the informant was rejected that the petitioner was a student in the school. On the order of the learned Juvenile Justice Board a Medical Board was constituted and the Medical Board has submitted his report on 12th December 2009 assessing the age of the petitioner as 17 to 18 years. According to Rule 22 (5) of the Bihar Juvenile Justice (Care & Protection of Children) Rules 2003, in absence of a birth certificate given by a corporation or a municipal authority ; or a date of birth certificate from the school first attended; or matriculation or equivalent certificates, the opinion of the Medical Board has to be called for from the Medical Board. It is submitted by the learned counsel for the petitioner that in this case the petitioner is illiterate and as such a report was called for from the Medical Board regarding the age of the petitioner. The Medical Board has also submitted its report but the learned Juvenile Justice Board as well as the Appellate Court has ignored the report of the Medical Board and passed an order on the basis of physical appearance and have assessed the age of the petitioner which is not in accordance with law. Learned counsel for the State has not controverted the contention of the petitioner. After hearing the learned counsel of both the parties and on perusal of the material available on record, it appears that 3 the Juvenile Justice Board as well as the Appellate Court have based their finding and has assessed the age of the petitioner on physical appearance. According to Rule 22 (5) of the Bihar Juvenile Justice (Care & Protection of Children) Rules 2003, in absence of the birth certificate given by a corporation or a municipal authority or a date of birth certificate from the school first attended or the matriculation or equivalent certificates, the opinion of the Medical Board will be given weightage and according to the report of the Medical Board the age of the juvenile will be estimated. In this case Medical Board has submitted its report on 18th December 2009 determining the age of the juvenile between 17 to 18 years. Considering the facts and circumstances, in my opinion the impugned order is not fit to be sustained. It is set aside. This revision application is allowed. The matter is remanded to the Juvenile Justice Board for considering the Juvenility matter in accordance with law. Let the order be communicated through fax at the cost of the petitioner. M.Rahman (Amaresh Kumar Lal, J)