IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1183 of 2010 PAPPU CHOUDHARY …Petitioner Versus 1. STATE OF BIHAR 2. BAIJU PRASAD, SON OF LATE DEOKI YADAV …Opposite parties …Opposite party For the Petitioner: Mr. Parthasarthy For the State : Mr. Jharkhandi Upadhyay,APP ----------- 02. 07.09.2010 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner is aggrieved by the order dated 9.02.2010, passed by learned Addl. Sessions Judge-III, Barh in S.T.No.1644/2008, whereby on a consideration of materials brought on record in course of enquiry, made under section 7A of the Juvenile Justice (Care and Protection of Children) Act (hereinafter referred to as the „Act‟) it has been held that the petitioner is not a juvenile within the meaning of the Act. The petitioner was made accused in a case instituted under section 376 IPC with an allegation that on 18.05.2008 he had committed rape on a three-year-old girl. The petitioner raised a claim that he was juvenile on the date of occurrence and, as such, he should be declared juvenile. The application was considered and rejected by order dated 22.04.2009. Aggrieved by the aforesaid order, petitioner filed Cr. Rev. No.1030/09(Pappu Choudhary vs. State of Bihar) (Annexure-4) which was heard and disposed of in the following manner: “Let the trial court get the petitioner examined by a Medical Board as per its 2 own observation made under order dated 22.04.2009 within six weeks from the date of receipt/communication of a copy of this order in the court below and thereafter the matter shall be decided in accordance with law. It is expected that the Jail Superintendent, Barh and the Civil Surgeon, Patna shall act with promptitude in the matter.” The matter thereafter was again taken up by learned trial court(Addl. Sessions Judge-III, Barh). A Medical Board was constituted consisting of eminent doctors and the report whereof was submitted on 11.12.2009. Let it be clarified that on the earlier occasion the claim for juvenility was raised based on the school leaving certificate. The said matter was considered with reference to the document and the evidence brought on record whereafter learned trial court by order dated 22.04.2009 found that the age of the petitioner cannot be determined based on those documents and the evidence brought in support thereof and, as such, it was deemed necessary that the assessment of the age by the Medical Board was to be resorted to. According to the medical Board, the age of the petitioner was assessed between 18 and 20 years on the date of medical examination. On the strength of the aforesaid assessment of age, a submission was advanced on behalf of the petitioner in the court below in the following manner: “The Medical Board has assessed the age of the petitioner between 18 to 20 years on the date of his examination dt. 11.12.2009. This occurrence relates to the occurrence dt. 18.5.08. Benefit of fluctuation in assessment of age is to be given to the accused….” 3 Learned trial court on the basis of materials brought on record has considered the claim of juvenility in the light of ratio laid down by the Apex Court in the case of Jyoti Prakash Rai @ Jyoti Prakash {2008(3) PLJR 280 SC}. It has thus been found and held that the Medical Board has assessed the age of the petitioner on the date of occurrence between 18 to 20 years. Learned trial court has thereafter considered the scope of any fluctuation in the age so assessed by the Board and has come to the conclusion that the petitioner was not a juvenile. Counsel for the petitioner submits that learned trial court has committed an error in not keeping in focus one aspect of the matter which is crucial in deciding the issue. According to him, the assessed age between 18 to 20 years was found on the date of examination before the Medical Board on 11.12.2009, whereas the date of occurrence is/was 18.5.2008. It is stated that even an average of 18 to 20 i.e. 19 years is taken into consideration, the petitioner would be juvenile on the date of occurrence, i.e. 18.05.2008 I have heard both sides and perused the order impugned. It appears learned trial court fell into error in not keeping in focus the provision of the Act that if on an assessment of age it is found that the accused-petitioner was juvenile on the date of occurrence then the benefit/privilege has to go to a juvenile. It appears to me that this aspect of the matter was probably lost sight of. In these circumstances, I am inclined to interfere with the impugned order. 4 Accordingly, the order dated 9.02.2010, passed by learned trial court in S.T.No.1644/08 is hereby quashed and set aside and court below is directed to dispose of the matter in the following manner: Let the trial court once again afford hearing to the petitioner and other interested person/party and thereafter pass a fresh order in accordance with law within six weeks from the date of receipt/communication of this order. Any observation made hereinabove is only for the purpose of disposal of the present application. The trial court shall take all relevant facts and law into consideration while disposing of the application afresh. hr ( Kishore K. Mandal )