INDRAJIT MAHANTY, J. CRLMC. NO.3396 OF 2010 (Decided on 04.03.2011) GANGA @ GANGADHAR SETHY … …. Petitioner. .Vrs. STATE OF ORISSA ……… Opp.Party. JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN ACT, 2000) (ACT NO.56 OF 2000) – S.7-A, r/w Rule 12 of the Relevant Rules. For Petitioner - M/s. M.Kanungo, S.Das & P.R.Singh. For Opp.Party - Additional Government Advocate I. MAHANTY, J. This application under Section-482 Cr.P.C. has been filed by the petitioner-Ganga @ Gangadhar Sethy seeking to challenge the order dated 02.01.2009 passed by the learned J.M.F.C., Aska in G.R. Case No.114 of 2008, whereby, a petition filed by the accused-petitioner claiming to be a juvenile as on the date of occurrence came to be rejected. 2. It appears from the case record that an F.I.R. was registered on 28.3.2008 for alleged commission of offence under Sections 302, 307, 326, 109, 120-B I.P.C. read with Sections 25(1-B) (a) & 27 of the Arms Act. In course of investigation, the present petitioner along with other accused persons were arrested and forwarded to the judicial custody. The present accused-petitioner filed a petition before the learned J.M.F.C., Aska on 26.06.2008 claiming therein that his date birth is 12.05.1991 and as such prayed to be declared as a ‘juvenile’ and to be provided with the benefits under the Juvenile Justice (Care and Protection of Children) Act, 2000. This petition came to be rejected by order dated 02.01.2009, which is the subject matter of challenge in the present proceeding. 3. Mr. M. Kanungo, learned counsel for the accused-petitioner placed reliance on Rule-12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and in particular Sub-Rule-3 thereof which is quoted herein below. “Rule-12(3) In every case concerning a child or juvenile in 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; (i) 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. Mr. Kanungo, learned counsel for the petitioner submits that Rule-12(3)(b) of Juvenile Justice (Care and Protection of Children) Rules, 2007 clearly stipulates that medical opinion can only be sought for from a duly constituted Medical Board, in the absence of evidence of either (i), (ii) or (iii) of Sub-Clause(a) of Rule 12 of the said Rules. 4. It is asserted by the learned counsel for the petitioner that in the present case, admittedly, the documentary evidence as contemplated under Rule-12 (3)(a)(ii) of Juvenile Justice (Care and Protection of Children) Rules, 2007 i.e. date of birth certificate from the school (other than a play school) first attended, is available on record. Therefore, once such evidence is available, the same ought to have been relied upon and accepted by the learned J.M.F.C., Aska but instead of doing so, the learned J.M.F.C., sought for medical opinion when such opinion ought not have been called for in terms of the aforesaid rule. 5. Mr. K.K. Mishra, learned Additional Government Advocate on behalf of the State, fairly admitted that Rule-12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 applies to the facts of the present case. But Mr. Mishra raised a further contention that, the determination of age ought not to have been made by the learned J.M.F.C. and the learned J.M.F.C. ought to have referred the matter to the Board constituted under the said Act for determination of the age. He further submits that Section-6 of the Juvenile Justice (Care and Protection of Children) Act, 2000 clearly stipulates that a Board has been constituted for any district and such Board has the power to deal “exclusively” with all proceedings under this Act relating to juvenile in conflict with law and, therefore, submits that the matter should be remitted to the Board for determination of the age of the petitioner. 6. Mr. Kanungo, learned counsel for the petitioner on the other hand submits that, Section-7-A was brought into statute by way of amendment with effect from 22.8.2006. In this respect Mr. Kanungo, placed reliance on a judgment of the Hon’ble Supreme Court in the case of Hari Ram v. State of Rajasthan and another, (2009) 13 Supreme Court Cases 211. In the said judgment the Hon’ble Supreme Court took note of the fact that after the decision of a Constitutional Bench of the Hon’ble Supreme Court in the case of Pratap Singh v. State of Jharkhand, A.I.R. 2005 S.C. 2731, the legislature amended the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and incorporated Section-7-A into the statute. The same is noted herein below: 2 “7-A. Procedure to be followed when claim of juvenility is raised before any court-(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under Sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect.” While Section-7-A provided that a claim of juvenility could be raised before “any court” or if a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall require to conduct an inquiry, take evidence and determine the age of a person by recording a finding whether the person in question is a juvenile or not. 7. The manner in which determination would take place was provided by legislature by enacting the Juvenile Justice (Care and Protection of Children) Rules, 2007 and providing Rule-12 thereunder, which provides for the procedure to be followed by the Court, the Board and the Child Welfare Committee for the purpose of determination of age in every case. In the case of Hari Ram (supra), Hon’ble Supreme Court held that to determine the special clause of Rule-12 was that, once the age of juvenile is found to less than 18 years on the date of offence on the basis of any proof specified under Sub-Rule(3), the Court or the Board or as the case may be, the Child Welfare Committee has to pass written order stating the age of the Juvenile and no further inquiry is to be conducted by the Court or Board after obtaining any documentary proof referred to under Sub-Rule(3) of Rule-12. Rule-12, therefore, indicates the procedure to be followed to give effect to a petition filed under Section-7-A when a claim of juvenile is raised. 8. In the light of the judgments of the Hon’ble Supreme Court and on a plain reading of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 with Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, it would be clear there from that, the contention advanced by the learned counsel for the State, that the learned J.M.F.C., Aska had no power to determine the age of the accused-petitioner has no substance. The term ‘any court” has also been earlier 3 determined by the Hon’ble Apex Court, in the case of Pratap Singh v. State of Jharkhand and in paragraph 31 thereof which is quoted below. “The term “any court” would include even ordinary criminal Courts”. 9. In view of the above, I am of the considered view that the learned J.M.F.C., Aska being the court before whom the accused-petitioner was produced by the prosecution, therefore, the said court is competent to determine the age of the accused-petitioner since he raised his claim to be a juvenile before such court. 10. Now on perusal of the impugned order, it is seen that the School Admission Register of U.P. School, Dhanantar and Natheswar High School, Dhanantar were exhibited. The School Admission Register of Natheswar High School was produced and exhibited as Ext.1. From the said exhibit, it reveals that the date of birth of the accused- petitioner was 12.5.1991 and in the Transfer Certificate issued in favour him, the date of birth was also indicated as 12.5.1991. An Assistant Teacher of Natheswar High School, who had produced the School Admission Register and had been examined as P.W.2. Where after the learned J.M.F.C., called upon the Admission Register of U.P. School, Dhanantar. The same was produced through P.W.3 and was marked as Ext.2. The said register also reveals that the date of birth of the accused-petitioner was 12.5.1991. These limited facts alone clearly indicate that Rule-12(3)(a)(ii) was satisfied, although certain suspicion was raised by the learned J.M.F.C. on the basis of the said entries and also on the oral evidence given by the mother of the accused-petitioner, but the same, could not form a lawful basis for directing the ossification test of the accused-petitioner. Rule-12(3)(b) clearly mandates that medical opinion would be sought for from a duly constituted Medical Board only in the absence of evidence as contemplated under Rule- 12(3)(a)(i),(ii) or (iii). In the present case since the School Admission Register of the U.P. School, Dhanantar had been exhibited under Ext.2 and the said register revealed that the date of birth of the petitioner as 12.5.1991, there was no lawful justification for the learned J.M.F.C. to seek for any medical opinion far less an ossification test as directed. 11. In view of the judgment of the Hon’ble Supreme Court referred hereinabove and the facts of the present case, I quash the impugned order dated 2.1.2009 passed by the learned J.M.F.C., Aska in G.R. Case No.114 of 2008 to the extent of direction relating to determination of the age of the accused-petitioner is concerned and hold that the date of birth of the petitioner is being 12.5.1991 and since the alleged occurrence was on 28.3.2008, the accused-petitioner is clearly below 18 years of age as on the date of occurrence and is, therefore, declared to be a juvenile in conflict with law, since he had not completed 18 years of age as on the date of the commission of the alleged offence. Therefore, the accused-petitioner shall be forwarded to the Board to pass appropriate orders and to conduct the further proceeding against the juvenile. 12. Accordingly, the CRLMC is allowed & disposed of in terms of the directions noted hereinabove. Application allowed. 4