IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.785 of 2011 Anish Kumar @ Antu, son of Akhileshwar Singh, resident of village- Daulatpur Gandhi Tola, P.S.-Gaurichak, District- Patna. ………….Petitioner Versus The State Of Bihar ………Opposite Party ----------- 2. 17.11.2011 The learned counsel for the petitioner is permitted to make necessary correction in the provision of law. The accused petitioner has preferred this revision application under Sections 397 and 401 of the Cr.P.C. read with Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) against the order dated 15.06.2011 passed by the learned Additional Sessions Judge, F.T.C.I, Patna in S.T.No.223/2008 by which the prayer for declaring him as a juvenile under Section 7 (A) of the Act and under Section 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the Rules) has been rejected. Heard Mr. Akhileshwar Prasad Singh, the learned Senior counsel for the petitioner and Mr. P.K.Jha, the learned A.P.P. for the State. 2 It is submitted by the learned counsel for the petitioner that Kankarbagh P.S. Case No.153/2007 dated 3.08.2007 under Section 364 A of the I.P.C. was instituted against unknown. After investigation, charge-sheet was submitted against the accused including the petitioner. Cognizance was taken. The case was committed to the court of sessions. The date of occurrence is 3.08.2007, whereas, the date of birth of the petitioner is 1.03.1990. As such, the petitioner was below 18 years at the time of occurrence. A petition was filed for declaration of the petitioner as a juvenile before the learned Additional Sessions Judge, F.T.C.I, Patna in Sessions Trial No.223/2008. Inadvertently, the said petition was filed under Section 7 of the Act and the learned court below could not notice that petition under Section 7 is to be filed before the learned Magistrate and the learned Additional Sessions Judge wrongly held an inquiry by directing the authority of the school to produce the admission register. The school admission register could not be produced as it had been destroyed by white ants and the learned court below has wrongly ignored the matriculation certificate produced by the petitioner and refused to declare the 3 petitioner as a juvenile vide order dated 5.04.2011. He has further submitted that realizing the mistake, the petitioner filed a petition under Section 7 A of the Act before the learned Additional Sessions Judge on 3.05.2011 under Section 7A of the Act and Rule 12 of the Rules, which has also been rejected on the ground that the school authority failed to produce the admission register and also on the ground that the matter of juvenility has earlier been rejected by that court vide order dated 5.04.2011. The main contention of the learned counsel for the petitioner is that under Section 7 A of the Act, the claim of juvenility can be raised before any court certainly the aforesaid case has been committed to the court of sessions and is pending before the learned Additional Sessions Judge for trial. As such, a petition was filed under Section 7A of the Act. In Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the guidelines have been given to the court or the Board as the case may be for the consideration of the documents for considering the juvenility matter of a person. It is better to quote Rule 12 (3) : 4 “12. Procedure to be followed in determining of age- (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; (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 be 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.” 5 He has further submitted that the matriculation certificate was produced before the learned court below in support of the age of the petitioner. But, the date of birth mentioned in the matriculation certificate has been ignored and the learned court below has misdirected itself for calling for the school admission register, if the matriculation certificate is available, then the court is not required to see any other documents relating to the age of a person claiming juvenility. In support of his contention, the learned counsel for the petitioner has referred to a decision in the case of Shah Nawaz Vs. State of U.P. and Anr. reported in 2011 (4) PLJR 172 (SC) in which it has been held that the mark-sheet of high school examination and school leaving certificate duly signed by the competent authority and bearing seal are valid proof for determination of age. Medical opinion of Medical Board is necessary only when matriculation certificate, school leaving certificate or any other like certificate are not available. He has further submitted that no one has raised any objection regarding fake or forged matriculation certificate produced by the petitioner. As such, the learned 6 trial court should have considered the matriculation certificate as the proof of the age of the petitioner. The learned counsel for the State could not controvert the contention of the petitioner. After hearing the learned counsel for both the parties and on perusal of the materials on the record, it appears that the order dated 5.04.2011 and 15.06.2011 passed by the learned court below are not fit to be sustained. Accordingly both these orders are set aside and the matter is remanded to the learned trial court to consider the matter afresh in view of the provisions of Section 7A of the Act and the Rule 12 of the Rules and pass orders in accordance with law. In the result, this application is allowed. V.K. Pandey ( Amaresh Kumar Lal, J.)