IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL REVISION No.1029 of 2009 RAJESH YADAV , S/o – Mahendra Yadav, resident of village – Chakkadih, P.S – Banka, District – Banka. --------- Petitioner. Versus The State of Bihar --------- Opposite Party. ******* Appearance : For the Petitioner/s: Mr. Ajay Mukherjee, Adv. For the State : Mr. G.P. Jaiswal, APP ******* 2 11-07-2011 Learned counsel for the petitioner seeks permission to delete the Opposite Party no. 2 from the array of the party. Prayer is allowed. The accused petitioner has preferred this criminal revision petition against the order dated Ist June 2009 passed by the learned Additional Sessions Judge, F.T.C. II, Banka in Sessions Trial no. 975 of 2007 by which his petition dated 19th May 2009 filed by the petitioner to declare him a juvenile and to separate the trial has been rejected. Heard Mr. Ajay Mukherjee the learned counsel for the petitioner and learned counsel for the State Sri G.P. Jaiswal, A.P.P. The learned counsel for the petitioner submits that the petitioner was facing trial in the aforesaid Sessions Trial no. 975 of 2007 arising out of Banka P.S. Case no. 341 of 2006. G.R. no. 1329 of 2006 and the petition dt. 19th May 2009 was filed on behalf of the petitioner for separating the trial and the petitioner may be declared juvenile. The prayer of 2 the petitioner has been rejected by the impugned order passed by the learned Additional Sessions Judge on the ground that the plea of juvenile was rejected by the learned Chief Judicial Magistrate on 21st July 2007 and also by the Additional Sessions Judge vide order dated 18th July 2008 and also on the ground and under examination u/s 313 Cr. P.C. the petitioner has stated his age about 25 years and his facial appearance also shows that the petitioner is not a juvenile. He has further submitted that never full-fledged inquiry was made to consider as to whether the petitioner was a juvenile at the time of occurrence. He has submitted that the date of the birth of the petitioner is 15th June 1993 and the date of occurrence is 6th November 2006. He has further submitted that the petitioner is also an accused in Case no. 417/2008. In Sessions Trial no. 786/2007 also the learned Additional Sessions Judge, F.T.C.- III, vide order dated 27th May, 2009 has declared the petitioner as a juvenile. He has also submitted that in view of the provision contained in Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 the Claim of juvenility can be raised before any Court. The opinion whether accused person was a juvenile on the date of commission for the offence, the Court shall make an inquiry, take such evidence as may be necessary. “So as to determine the age of such person, and shall record the finding whether the person is juvenile or a child or not stating his age as nearly as may be.” 3 He has further submitted for holding an inquiry regarding the determination of age there is procedure for the determination of age under the provisions contained in Rule 22. The procedure to be followed by a Board in holding inquiry and the determination of age is contemplated under Sub-rule-5, Rule-22 of the Bihar Juvenile Justice (Care and Protection of Children) Rules 2003. It has been mentioned in Rule 22 (5) that in every case concerning a juvenile or a child the Court shall either obtain. (i) a birth certificate given by a Corporation or a Municipal Authority; (ii) a date of birth certificate from the school first attended or, (iii) matriculation or equivalent certificate if available; and (iv) in the absence (i) to (iii) above, the medical opinion may be obtained by a duly constituted medical 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 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. It is further submitted that the aforesaid procedure have not been followed in determining the age of the petitioner by the learned Court below as it appears from the impugned order. The learned counsel for the State could not controvert the contention of the learned counsel for the petitioner while opposing the prayer of the petitioner. 4 After hearing the learned counsel for both the parties and on perusal of the impugned order, it appears that the contention of the learned counsel for the petitioner is correct. The learned trial Court has not taken into consideration the aforesaid procedures for the determination of the age of the petitioner. In this view of the matter, in my opinion, the impugned order is not fit to be sustained and is liable to be set aside. It is set aside. The matter for the determination of the age is remanded back to the learned Additional Sessions Judge, FTC-II, Banka in view of the provision contained in Section 7A of the aforesaid Act and the Rule 22 of the Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003 and will proceed with the case in accordance with law. In the result, this petition is allowed. Kamlesh (Amaresh Kumar Lal, J.)