IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1335 of 2009 SAWAN KUMAR SON OF RAM PRAVESH GUPTA, R/O- MOHALLA HAKIKATPUR, P.S.- BAKHTIYARPUR, DISTRICT- PATNA. Versus THE STATE OF BIHAR For the petitioner : Mr. Satya Prakash, Advocate. For the O.P. : Mr. Nirbhay Kumar Singh, Advocate. ----------- 2 04.10.2010 Petitioner is aggrieved by the order dated 20.8.2007 passed by learned A.C.J.M, Barh in Bakhtiyarpur P.S. case no. 190 of 2007 which reads as follows: Þ20-8-07 vfHk;qDr 'kadj dqekj lksuh rFkk lkou dqekj dk yfEcr vkosnu i= vkt fdUgha vf/koDrk }kjk lapkfyr ugha fd;k x;kA vfHkys[k dk voyksdu fd;kA mijksDr nksuksa vfHk;qDrksa dk mez dk tkap izfrosnu izkIr gSA izfrosnu ds vuqlkj nksuksa vfHk;qDr okfyx gSA bl vkns'k ds lkFk nksuksa vfHk;qDrksa dk yfEcr vkosnu i= dks fuLikfnr fd;k tkrk gSAÞ Relevant facts giving rise to the application may first be noticed. Petitioner was made accused in a case instituted under diverse sections of the Indian Penal Code including Sections 302 and 34 of Indian Penal Code with respect to an occurrence that had taken place on 9.7.2007. On 25.7.2007, an application (Annexure-2) was filed on his behalf claiming himself to be a juvenile on the date of occurrence. A perusal of Annexure-2 shows that such claim was raised based on his date of birth appearing in School Leaving Certificate of Class-VIII issued by Middle School, Bakhtiyarpur dated 27.1.2003 wherein his date of birth found recorded as 5.11.1990. Learned Magistrate directed for constitution of a Medical Board and the assessment of his age by the said Board. The Board so constituted by the Court 2 clinically examined the petitioner and submitted a report on 8.8.2007 (Annexure-4) wherein his age was assessed between 20 to 22 years. The matter was thereafter placed before learned court below on 20.8.2007 when no body appeared and pressed the application wherein he had claimed juvenility. Agreeing with the said report (Annexure-4), learned A.C.J.M., Barh disposed of the said application and found the petitioner not juvenile. Learned counsel for the petitioner submits that the claim of juvenility was raised based on School Leaving Certificate (Annexure-6). Once a claim is raised based on the School Leaving Certificate, the court below was required under the law to proceed in accordance with the provisions contained under Sections 7A and 49 of the Juvenile Justice (Care and Protection of Children Act (for short the Act) read with Rule 22(5) of the Bihar Rules framed under the Act in the year 2003 as also Rule 12(3) of the Central Rule framed under the provisions of the Act. He relies on a judgment of this Court rendered in the case of Sachin Kumar Gupta versus State since reported in 2008 (2) P.L.J.R. 800. Based on the aforesaid provisions of law and the Rules as also the ratio laid down in the case of Sachin Kumar Gupta (Supra), it is contended that it was mandatory upon the Court to proceed in accordance with the provisions which contemplate that if a claim is raised based on School Leaving Certificate, the court below has to proceed with an inquiry as contemplated under the Act and the Rules. Submission is that the 3 procedure adopted by learned Magistrate in getting Medical Board constituted and the petitioner assessed by it, is contrary to the provisions of law. It is next submitted that the law is settled that claim of juvenility can be raised at any stage of the proceeding and once it is raised, the Court has to consider and dispose of the same in accordance with the provisions of the Act and the Rules framed therein. It is stated that the matter is presently pending before the Court of learned Addl. Sessions Judge-III, Barh. It is thus the contention of the petitioner that the order dated 20.8.2007 was passed erroneously and contrary to the provisions of the Act and the Rules framed thereunder. Learned A.P.P., on the other hand, only supported the order. No substantial arguments to controvert the submissions made on behalf of the petitioner was made. He, however, emphasized that the petitioner did not raise any objection when the Court decided to constitute a medical Board for assessment of his age. I have considered the submissions made on behalf of the parties and perused the materials on record. I have also gone through the provisions of law cited and relied upon by Learned counsel for the petitioner. It is seen from Annexure-2 that the claim of juvenility was raised based on the date of birth appearing in the School Leaving Certificate. Rule 12(3) of the Central Rule prioritize the categories of claim on which the Court has to proceed. Rule 12(3) of the Central Rules reads as under: “12(3) In every case concerning a child or juvenile in 4 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, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while 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 and either of the evidence specified in any of 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. “ In my view, considering the provisions of the Act and the Rules as also the ratio laid down in the case of Sachin Kumar Gupta (Supra), learned A.C.J.M., Barh ought to have made an inquiry strictly in terms of Section 7A of the Act read with the Rule framed thereunder. Even if no objection was raised to the order dated 25.7.2007, in my view, the same will not confer a jurisdiction to proceed contrary to the scheme of the Act and the Rules framed thereunder. In that view of the matter, this Court is convinced that the order dated 20.8.2007 passed by learned A.C.J.M., Barh in Bakhtiyarpur P.S. case no. 190 of 2007 requires to be interfered with and set aside. The matter is 5 presently pending before the Addl. District and Sessions Judge, Barh, in Sessions Trial no. 314 of 2008. If the present order is quashed, the matter will have to be re-examined by the learned A.C.J.M., Barh or by the Juvenile Justice Board, if already constituted within the said jurisdiction. Consequently, this Court disposes of the present application by the following order: The order dated 20.8.2007 is quashed and set aside. Learned Addl. Sessions Judge-III Barh is directed to remit the matter back to the Court of learned A.C.J.M. Barh and/or the Court of learned Juvenile Justice Board, Barh for proceeding with the inquiry in accordance with law. pkj ( Kishore K. Mandal, J. )