- (1.) Heard learned counsel for the revisionist, Sri R.N. Rai for the opposite party No. 2 and the learned A.G.A. for the State. By this revision application, the revisionist has challenged the order dated 22.3.2012 passed by the Additional Sessions Judge, Court No. 1, Ghaziabad in S.T. No. 1082 of 2011, whereby the revisionist's claim of juvenility with reference to case Crime No. 634 of 2011, P.S. Kavinagar, District Ghaziabad, has been denied. The contention of the learned counsel for the revisionist is that the claim of juvenility has not been considered in the light of the provisions of sub-rule (3) of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as Rules, 2007). It is contended that in absence of any reliable certificate with respect to the date of birth of the revisionist, the Court was under a legal obligation to take into consideration the medical opinion of a duly constituted medical board with regards to the age of the revisionist for the purpose of deciding the claim of juvenility. But the Court below instead of relying on the medical opinion of the Chief Medical Officer, which disclosed his age as 17 years, took into consideration the physical appearance of the revisionist and arbitrarily added two years to the age determined through medical examination and rejected the claim of juvenility by, holding the revisionist as 19 years of age. It is, accordingly, contended that the order of the Court below is not legally justified and deserves to be set aside.
(2.) Per contra, Sri R.N. Rai, learned counsel for the opposite party No. 2 submitted that under sub-rule (2) of Rule, 12 of, the Rules, 2007, the Court is required to form an opinion on the basis of physical appearance as well as documents. It is contended that since the Court below has formed an opinion on the basis of physical appearance of the claimant, the order passed by the Court below cannot be said to be illegal or perverse. It has also been submitted that in the instant case, the medical opinion was not sought from a duly constituted medical board as contemn plated by clause (b) of sub-rule (3) of Rule 12 of the Rules, 2007, therefore, the opinion rendered by the Chief Medical Officer was of no relevance.,
(3.) Before examining the respective weight of the rival submissions it would be useful to examine the provisions governing the procedure to be followed in determination of age of an accused claiming juvenility. The procedure to be followed is laid in Rule 12 of the Rules, 2007. Sub-rule (1) of Rule 12 provides that the age of a juvenile in conflict with law shall be determined by the Court or the Board or as the case may be the Committee within a period of thirty; days from, the date of making of the application for that purpose. Sub-rule (2) of Rule 12 provides as follows: (2) The Court or the Board or, as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents if available, and send him to the observation home or in jail. Whereas sub rule (3) of the Rules, 2007 provides as follows: (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 absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a Panchayat; (b) and only in 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. Incase exact assessment of the age an 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 cases 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.;