IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No. 47 of 2007. Judgment reserved on: 20.6.2008 Date of decision: 25.6.2008 Ram Bahadur ……Petitioner Vs. State of H.P. …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the petitioner : Mr. Aman Sood, Advocate. For the Respondent : A.K. Bansal, Additional Advocate General. Kuldip Singh, Judge. 1. This revision has been directed against the order dated 8.6.2006 passed by learned Addl. Sessions Judge, Sirmour at Nahan in Misc. No.5-N/40 of 2006 in Sessions trial No.12-N/7 of 2004 , titled as State vs. Kalyan Singh, dismissing the application of the petitioner for referring his case to Juvenile Justice Board (for short Board) under The Juvenile Justice ( Care and Protection of Children) Act, 2000 (for short Act) . 2. The facts in brief are that petitioner an accused in sessions trial No.12-N/7 of 2004 filed an application before the learned Addl. Sessions Judge, Nahan for referring his case to Board Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… under the Act on the grounds that the petitioner was 17 years old at the time of committal of his case by learned Judicial Magistrate Ist Class, Court No.2, Paonta Sahib. According to petitioner the offence was allegedly committed on 5.8.2002 and the petitioner was below 18 years at that time. He submitted that his case be referred to Board for trial in accordance with law. 3. The application was contested by State on the grounds that the petitioner at the time of incident and at the time of committal proceedings was not below 18 years of age. The occurrence took place on 5.8.2002, the petitioner was interrogated/arrested on 8.10.2002 and at that time he had given his age 20 years. 4. Heard and perused the record. Mr. Aman Sood, learned counsel for the petitioner has submitted that on the date of occurrence on 5.8.2002 the petitioner was below 18 years of age, therefore, his trial is to be separated and he can be tried only by Board under the Act. He has heavily relied on copy of order dated 16.9.2004 passed by learned Additional Sessions Judge, Delhi in support of his submission that petitioner was juvenile on 5.8.2002. Mr. Sood has also submitted that the petitioner filed another application on 26.12.2005 in the Court below for placing on record certain more facts in order to show that petitioner was below 18 years of age on 5.8.2002. The application dated 26.12.2005 was not considered by Court below while passing the impugned order. The learned Addl. Advocate General has supported the impugned order. He has submitted that petitioner himself had disclosed his age 20 years on 8.10.2002 when he was interrogated/arrested. He has …3… submitted that ossification test is not enough to come to a definite conclusion regarding the age on a particular date. The result of ossification test depends on many factors, therefore, it is not safe to rely on such test of the petitioner to come to the conclusion of his age on the date of occurrence. The learned Addl. Advocate General has submitted that application dated 26.12.2005 of the petitioner filed in the Court below on material particulars was just the repetition of the earlier application. In the application dated 26.12.2005 the petitioner had again reiterated that he was below 18 years of age on the date of occurrence. 5. Section 2(k) of the Act defines “Juvenile” or “child” means a person who has not completed eighteenth year of age. The Act was enacted to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation and for matters connected therewith or incidental thereto. As per sub section 4 of Section 1, notwithstanding anything contained in any other law for the time being in force, the provisions of the Act shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under any such law. Powers of Board are given in Section 6 and Section 7 A prescribes procedure to be followed when claim of juvenility is raised before any court. According to Section 7A , the Court shall make an inquiry, take such …4… 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. Section-18 prohibits trial of juvenile with a person who is not juvenile. 6. In Pratap Singh vs. State of Jharkhand and another (2005) 3 Supreme Court Cases 551, the Hon’ble Supreme Court has held that date for the determination of the age of the juvenile is the date of the offence and not the date when he is produced before the authority or in the Court. In that case Hon’ble Justice S.B. Sinha in para-78 has also held that an inquiry for the purpose of determination of age of the juvenile need not be resorted to if the person produced is admitted to be a juvenile. An inquiry would be necessary only if a dispute is raised in that behalf. 7. The petitioner filed an application for referring his case to Board on 17.5.2005 and another application on 26.12.2005. In the present case, the petitioner had placed two orders on record in the Court below, one order dated 16.9.2004 passed by learned Addl. Sessions Judge, Delhi. The perusal of order dated 16.9.2004 would show that in that case occurrence took place between 26.7.2002 to 31.7.2002. The report of medical board of the month of August 2004 noticed in that case suggested the bone age of the petitioner 19 to 20 years. In other words as per report of the medical board noticed in the order dated 16.9.2004 the petitioner was 17 to 18 years in August 2002. The prosecution as well as petitioner in that case took stand before the learned Addl. Sessions Judge, Delhi that at the time of occurrence the petitioner was aged about 18 years or less. The …5… learned Addl. Sessions Judge in the order dated 16.9.2004 has held that the petitioner be tried before Juvenile Justice Board. The learned Special Judge, Gangster Act, Dehradun vide order dated 14.9.2005 for offence which was allegedly committed on 5.6.2003 referred the case of the petitioner to Juvenile Justice Board, Dehradun. 8. In the impugned judgment, the learned Court below has recorded a finding that on 8.10.2002 when petitioner was arrested he disclosed his age to be 20 years, but petitioner in the applications dated 17.5.2005, 26.12.2005 has stated that he was below 18 years at the time of alleged occurrence. The learned Court below has also observed that the petitioner has failed to produce any certificate issued on the basis of entry in the birth and death register in order to show that petitioner was below of 18 years of age on the date of occurrence. The medical board opinion noticed in order dated 16.9.2004 regarding the age of the petitioner was not relied by the learned Court below. It has not been appreciated that in a given case it is quite possible that person concerned is not literate and his name also does not find mention in the birth and death register. The law is not helpless to the extent that in such a situation the age of a person cannot be determined by other evidence. Section 7A of the Act makes it clear that whenever a claim of juvenility is raised before any Court, the court shall make an inquiry, take such evidence as may be necessary, but not an affidavit, so as to determine the age of the concerned person. In the present case, the learned Court below did not make any inquiry and gave an opportunity to petitioner to lead evidence in support of his claim that on the date of occurrence he …6… was juvenile. The recording of the evidence was absolutely necessary in the present case in as much as the petitioner has produced at least two orders, one of the Court of learned Addl. Sessions Judge, Delhi and second from the learned Special Judge, Gangster Act. Dehradun declaring petitioner juvenile for the offence committed in between 26.7.2002 to 31.7.2002 and on 5.6.2003. In the present case occurrence allegedly took place on 5.8.2002, therefore, on this ground alone that the learned Court below has not held an inquiry in accordance with Section 7A of the Act regarding the age of the petitioner on the date of occurrence, the impugned order is liable to be set aside. 9. No other point was urged. 10. The result of the above discussion, the petition is allowed, order dated 8.6.2006 passed by learned Addl. Sessions Judge, Sirmour at Nahan in Misc. No.5-N/40 of 2006 in Sessions trial No.12-N/7 of 2004 is set aside. The learned Addl. Sessions Judge Nahan is directed to hold an inquiry regarding the age of the petitioner on the date of occurrence in accordance with Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and then to proceed further in accordance with law. ( Kuldip Singh ) Judge. June 25, 2008 (sks)