1 WP :1642.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 1642 OF 2010 Jagdish @ Sagar Hari Choudhary … Petitioner Vs. State of Maharashtra … Respondent Mr. Vijay Hiremath i/by Ms. Rebecca Gonsalvez for petitioner. P.S. Hingorani, APP for respondent-State. Coram : A.M. Khanwilkar, & P.D. Kode, JJ Date : 2nd September 2011 PC : 1. By consent, taken up for hearing forthwith. 2. This petition filed under Article 226 of Constitution of India seeks to challenge the order passed by the 1st Ad-hoc Additional Sessions Court, Greater Mumbai, at Mumbai dated 4th April 2009 in Miscellaneous Application No.58 of 2009 in Sessions Case No.91 of 1998. The petition is also seeking directions against the Sessions Court to reconsider the petitioner s claim of ’ 2 WP :1642.2010 juvenility based on school leaving certificate, which is annexed as Exhibit E to this petition. “ ” 3. It is not in dispute that the petitioner had filed formal application before the Sessions Court to extend him the benefit of the provisions of Juvenile Justice (Care and Protection of Children) Act 2000. That application has been rejected by the Sessions Court vide impugned judgment and order dated 4th April 2009. In the said order, it is clearly mentioned that the petitioner had not filed any document to indicate his birth date. The Sessions Court then proceeded to refer to the documents, which were already on record at the time of trial of the criminal case against the petitioner. The record included ossification test, dated 19th August 1997, which mentioned the age of the petitioner as between 21 to 22 years on the date of examination. In that view of the matter, the Sessions Court proceeded to hold that the petitioner was not below the age of 18 years, on the date of offence. For which reason, the relief claimed in the application was devoid of merits. 3 WP :1642.2010 4. In this petition, the petitioner has now relied on birth certificate Exhibit E issued by Prathamik Vidyalaya, Shahapur. “ ” The petitioner claims that the said school is government school and therefore, the birth date mentioned in the said certificate ought to prevail in the light of express provision in Rules 12(3) (a) of the Juvenile Justice (Care and Protection of Children) Rules 2007. It is further submitted that assuming that the said certificate were to be discarded, even then, the Sessions Court committed manifest error in proceeding to answer the matter in issue on the basis of ossification test report dated 19th August 1997. In that event, the Court was obliged to seek medical opinion of the duly constituted medical board, which is competent to declare the age of juvenile or child, by virtue of Rule 12(3)(b) of the Rules of 2007. 5. As aforesaid, the Sessions Court while disposing the application filed by the petitioner has proceeded on the basis of the documents, which were part of record in Sessions Case No.91 of 1998 i.e. ossification test report dated 19th August 1997 given by the Police Surgeon. No fault can be found with the approach 4 WP :1642.2010 of the Sessions Court, if the applicant had failed to produce any document in support of his date of birth, but in that situation, the Court was obliged to proceed in the matter, as per the procedure prescribed under Rule 12(3)(b). That procedure admittedly has not been followed in the present case. 6. The mandate of Rule 12 is that in such a situation the Court has to seek medical opinion of duly constituted medical board, which can assess the age of the juvenile or child. In the circumstances, without examining the other issues raised by the petitioner, in the present petition, we are inclined to set aside the impugned order passed by the Sessions Court and instead restore the Miscellaneous Application No.58 of 2009 to its’ original number on the file of the Sessions Court for being decided afresh on its own merits, in accordance with law. 7. Needless to observe that the Sessions Court would give one more opportunity to the petitioner/applicant before it to produce the birth certificate Exhibit E to this petition and “ ” after due enquiry, if it is convinced about the genuineness and authenticity thereof may proceed to pronounce on the basis of 5 WP :1642.2010 that certificate. However, if the birth certificate produced by the petitioner is unacceptable for some tangible reason, it would be open to the court to then take recourse to the procedure under Rule 12(3)(b) of the Rules of 2007 by seeking opinion of the duly constituted medical board, which will declare the age of the petitioner. On receipt of such report, it will be open to the Court to proceed with the matter by giving an opportunity to the petitioner as well as the prosecution and pass final order as may be advised. This, however, be done expeditiously. It will be open to the Court to consider whether personal production of the petitioner is necessary before the Court for answering the matter in issue. All questions are left open. 8. In view of the above, R. and P. be returned to the Sessions Court forthwith. 9. The petition succeeds on the above terms. Nothing survives in the companion application and the same is also disposed off. (P.D. Kode, J.) ( A.M. Khanwilkar, J.)