IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.662 of 2009 BINOD KUMAR SAO @ BINOD KUMAR SAH Versus STATE OF BIHAR & ANR ----------- For the petitioner: Mr.Basant Kumar Chaudhary, Sr.Advocate. For the Opp.Party : Mr.Ratna Kumar Ambastha, Advocate. For the State : Mr.Jharkhandi Upadhyay. Advocate. 2 10.12.2010 Heard the learned counsel for the petitioner and the State. The sole petitioner has approached this Court questioning the sustainability of order dated 9.3.2009 passed by the learned trial Judge in S.T. No.735 of 1997 whereby the claim of the petitioner that he was juvenile (below 18 years of age on /after the date of occurrence) was considered and rejected. Brief facts of the case may be indicated for better appreciation of the issues raised by the petitioner.With respect to an occurrence that had taken place on 24.4.1997 an F.I.R. was lodged on 24.4.1997 under section 364 of I.P.C. He was made an accused in the aforesaid case. It appears from the record that on 26.5.1997 he surrendered in the court and was subsequently granted certain privilege for which applications 2 were made. The matter thereafter remained pending. An application was filed on behalf of the petitioner claiming himself to be juvenile on the date of occurrence (24.4.1997). The said application was considered and rejected by the learned trial court on 24.3.2007. Aggrieved by the said order petitioner preferred criminal revision bearing Cr.Rev.No.678/07 (Binod Kumar Sah vs. The State of Bihar). A Bench of this Court by order dated 12.9.2008 (Annexure-2) after considering the submissions advanced on behalf of the parties held that the question of juvenility can be raised at any stage of proceeding and the court below committed an error in refusing to initiate enquiry in terms of section7A of the Juvenile Justice (Care & Protection of Children) Act, 2000 ( for short „the Act‟). Accordingly, the order impugned in the said application was quashed and the matter was remitted to the trial Judge for proceeding afresh in accordance with law. Thereafter two applications have been filed on behalf of the petitioner seeking juvenility. By filing application dated 13.2.2009 prayer was made to initiate enquiry in terms of section 7A of the Act. By filing another application dated 6.3.2009 a prayer was made to constitute Medical Board for determination of the age of the petitioner. It appears learned 3 trial court took up the application dated 6.3.2009 first and by order dated 7.3.2009 rejected the said claim for constitution of Medical Board on the ground that ossification test/radiological test had certain limitations and since the petitioner has not raised issue for about ten years the constitution of Medical Board was not appropriate as the conclusion/findings recorded by the Board may not be relevant for determining the age of the petitioner. After having held so by order dated 7.3.2009 enquiry was made in which evidence was adduced on behalf of the petitioner to show that his date of birth was of the year 1983. It appears such claim was raised based on Annexure-1 which is medical attendance/identity card in respect of the petitioner. As many as five P.Ws. including the father, brother, Sarpanch and mama (maternal uncle) were examined as the witnesses. Learned trial court found that Ext.1 bore certain overwritings with regard to the age of the petitioner and, therefore, not clearly legible and reliable. It appears in course of enquiry specific case of the petitioner was that in the year, 1998 the petitioner was aged about 15 years. The trial court found in the impugned order dated 9.3.2009 that the evidence led by the petitioner was not trustworthy and capable to 4 prove Ext.1 or the claim of juvenility on the date of occurrence trial court also found that such issue was being raised after ten years of the occurrence and surrender to the Jurisdiction of the court. From the order impugned it appears the trial Judge also took into account that several witnesses on behalf of the prosecution had already been examined whereafter defence also adduced certain witnesses. The trial was thus at the advance stage. Having held so, the two applications were rejected by orders dated 7.3.2009 and 9.3.2009 leading to filing the present application. Learned counsel for the petitioner submits that as per the provision contained under section 7(A) of the Act issue of juvenility can be raised before any court at any stage and if such issue is raised the same is required to be enquired into and determined in terms of the Act and the Rules framed thereunder. Drawing attention of the Court to the Rule framed under the Act called the Juvenile Justice ( Care & Protection of Children) Rules, 2003 (for short „the Rules‟) framed under exercise of the power conferred by section 68 of the Act. Particularly Rule 22(5) of the said Rules it is submitted that the legislatures have categorized the basis of claims on which such considerations have to be made. It is stand of the 5 petitioner that in absence of any birth certificate given by the Corporation or Municipal authority or date of birth certificate from the school first attended or the matriculation or equivalent certificate the court was obliged to constitute a Medical Board for ascertainment of the age of the petitioner. Non-compliance of the aforesaid Rule has vitiated the impugned order. He relies on Judgment of the Supreme Court reported in (2007) 13 SCC 88; Babban Rai vs. State of Bihar (paragraph 4). It is the stand of the learned counsel appearing on behalf of the State that the present application has been filed just to delay the trial. It is submitted that for ten years such issue was not raised. Learned trial Judge has found that after expiry of such a long time ascertainment of age through Medical Board would not be expedient. While considering such matter the court where such issues have been raised has to find itself against filing of frivolous application just to delay the disposal of the case/trial. I have considered the submissions advanced on behalf of the parties and perused the materials on record. Rule 22 (5) of the Rules framed under the Act reads as under:- “22(5). In every case concerning a juvenile or a 6 child, the Board shall either obtain:- (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended ; or (iii) matriculation or equivalent certificates, if available : and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medi- cal Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when 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.” It is seen therefrom in absence of the birth certificate given by the Corporation or Municipal authority or date of birth certificate from the school first attended and matriculation certificate, if available, the court as per requirement of the aforesaid rule is required to constitute 7 Medical Board in order to judge the claim of the petitioner. The learned trial court has refused to constitute the Medical Board on the ground that normal tests radiological or otherwise can only hold good upto certain age only (25 years). Referring to the view expressed in the Medical Jurisprudence ( page 32 paragraph 1) it has been found that at this stage constitution of Medical Board for determination of age of the petitioner will not serve any purpose and accordingly the applications were rejected. Learned counsel for the petitioner has relied upon a Judgment of the Supreme Court rendered in the case of Babban Rai and another vs. State of Bihar (supra ) in order to convince the Court that even at a later stage Medical Board can be appointed and the view of the Board can be considered by the Court while determining the age of the petitioner.In the case of Babban Rai (supra) Apex Court considered such issue at the stage of appeal preferred against the Judgment and order of conviction recorded in appeal by the High Court. Report with regard to the claim of the petitioner was called for from the court below. It appears from the report that the court below got constituted Medical Board and after obtaining report from the said Board 8 transmitted to the Supreme Court which was considered and based on the opinion of the Board, the Hon‟ble Supreme Court found and held that although such Medical Board was constituted in respect of a person who was fairly aged but still view of the Board could be accepted. Paragraph 4 of the said Judgment is extracted hereinbelow: “4. Learned counsel appearing on behalf of the State has not challenged the finding in rela- tion to the age of appellant Babban Rai, therefore, it is not necessary for us to go into the correctness of finding in relation to the age of this appellant. Learned counsel poin- ted out that, in support of the age of this app- ellant, his father was examined as a witness during the course of enquiry who deposed that Dharam Nath Rai was born in the month of April 1972. It appears that, pursuant to the order of the trial court, during the course of inquiry, a Medical Board was constituted which conducted ossification test and recor- ded that the age of Dharam Nath Rai on 22.3.2007, on which date the report was 9 Prepared, was between 35 to 40 years. If the age of this appellant is taken to be35 years, then his year of birth would be 1972, which is in conformity with evidence of father of the appellant, who was examined as a witne- ss in this case and in case his year of birth, as deposed to by his father as 1972 is accep- ted, he would be definitely below sixteen years of age and entitled to claim protection under the Juvenile Justice (Care and Protec- tion of Children) Act, 2000. This being the position, we are of the view that the trial court was not justified in holding that appe- llant Dharam Nath Rai was not under sixteen years of age on the date of alleged occurren- ce i.e. 16.3.1987.” Here is the case where there is already oral evidence on record adduced on behalf of the petitioner. The father, brother and maternal uncle have deposed that the petitioner was born in 1983. The trial court in view of the mandate of the provision of law read in the light of the dictum of the Apex Court ought to have constituted Medical 10 Board and obtained the report on the assessment of the age of the petitioner. Having obtained the report the trial court would be in better position to assess the age of the petitioner as there shall be report based on medical examination/ test as well as the deposition of the witnesses. By not acceding to the request of the petitioner for constitution of the Medical Board learned trial court appears to have committed a mistake which has prejudiced the petitioner. In the result, the application is allowed. The impugned order(s) dated 7.3.2009 and 9.3.2009 passed by the learned trial Judge in Sessions Trial No.735 of 1997 ( Binod Kumar Sao @ Binod Kumar Sah vs. The State of Bihar and another) is quashed and the said issue is remitted to the said court for constitution of the Medical Board and obtain report of the said Board and thereafter decide the claim of the petitioner in accordance with law. Anilkr.sinha (Kishore K.Mandal,J.)