Hon'ble Ashok Shrivastava - (1.) -this revision has been filed by the revisionist under the provisions of Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000,(for short the Act) feeling aggrieved by the judgment and order dated 2.8.2008 passed by the learned Sessions Judge, Mathur, while disposing of Criminal Appeal No. 101 of 2008.
(2.) THE brief facts of the case are that the revisionist is involved in case crime No. 201 of 2006 under Sections 302, 5041.pc, P.S.Kosi Kalan, District Mathura. He has been named in the F.I.R. After investigation a charge sheet was filed against him which was submitted by the investigating officer in the Court of learned Magistrate. THEreafter the case was committed to the Court of Addl. Sessions Judge, Mathur where the case was transferred by the learned Sessions Judge. THE revisionists moved an application before the learned Judge on 29.11.2007 that he was a juvenile on the date of the alleged offence and he further prayed that his matter may be referred to the Board, vide his order dated 29.1.2008 the learned . Judge referred the matter to the Board. THE Board considered the application of the revisionist relating to his claim of juvenility and thereafter vide its order dated 4.7.2008 the Board held that on the relevant date the age of the revisionist was about 17-1/2 years and therefore he was a juvenile on that date. Feeling aggrieved by this finding opposite party No. 2 filed an appeal under Section 52 of the Act. THE learned Sessions Judge after hearing both the parties quashed the order passed by the learned Board dated 4.7.2008 and held that on the relevant date the revisionist was not a juvenile. Hence this revision. On 12.7.2010 this revision was listed for hearing. On that date the learned counsel for the revisionist and learned AGA were present but no one was present from the side of opposite party No. 2. From a perusal of the office report dated 16.7.2009 it is evident that opposite party No. 2 has been served personally by the notice issued by this Court despite he remained absent.
(3.) I have heard learned counsel for the revisionist and the learned AGA and perused the records. It should be mentioned here that lower Court record has been received and is tagged with the file of this revision. The date of the order passed by the Board is 4.7.2008. This indicates that the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short the Rules) had come into force on that date. Rule 12 of the Rules deals with the procedure to be followed in determination of age. The relevant portion is as follows "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 can not 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." ;