- (1.) Parcha filed by Sri Manish Tiwary and Sri A.K. Awasthi on behalf of opposite party No. 2 is taken on record. This revision under Section 397 /401 Cr.P.C. read with Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (here-in-after referred to as the 'Act') is directed against the order dated 18.2.2013 passed by Additional Sessions Judge, Court No. 2, Varanasi in Criminal Misc. Bail Application No. 2213 of 2012 arising out of crime No. 233 of 2012 under Sections 376 and 506 IPC, P.S. Lohata, District - Varanasi, whereby the opposite party No. 2 - Santosh Kumar @ Pakalu was declared to be a juvenile in conflict with law and bail application was referred to Juvenile Justice Board, Varanasi for disposal. Heard Sri R.P. Dubey, learned counsel for the revisionist, learned A.G.A. for the State, Sri Manish Tiwary, learned counsel for opposite party No. 2 and perused the material available on record. Opposite party No. 2 is an accused in the aforesaid case. An application for bail was moved by him before the Sessions Judge, Varanasi, which was transferred to Additional Sessions Judge, Court No. 2, Varanasi for disposal. During hearing of the bail application, a plea was raised on behalf of the opposite party No. 2 that he was a juvenile and his date of birth as recorded in the High School Certificate is 21.10.1994 and, therefore, on the date of incident i.e. on 13.7.2012, his age is about 17 years, 8 month and 22 days. The plea was opposed by learned counsel for the complainant-revisionist on the ground that according to the High School Certificate, the date of birth of Sunita Yadav, elder sister of opposite party No. 2 was 8.8.1994 and, therefore, brother and sister could not have born within a span of three months and 13 days and, therefore, date of birth recorded in the High School Certificate was not reliable. It was also contended that earlier, an application for declaring the accused as juvenile was moved before the Magistrate, which was subsequently not pressed.
(2.) Learned Additional Sessions Judge relied upon Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 (here-in-after referred to as the 'Rules') and came to the conclusion that the date of birth recorded in the High School Certificate is conclusive and accordingly opposite party No. 2 was declared to be a juvenile in conflict with law. Feeling aggrieved, the complainant has come up before this Court in this revision.
(3.) It is submitted by learned counsel for the complainant-revisionist that no application was moved on behalf of opposite party No. 2 before the learned Additional Sessions Judge for declaring him to be a juvenile and, therefore, learned Additional Sessions Judge was not justified in holding an inquiry under Section 7A of the Act. It was further submitted that even if the plea of juvenility of opposite party No. 2 was raised before learned Additional Sessions Judge at the time of hearing of the bail application, learned Additional Sessions Judge should have made an inquiry as contemplated by Section 7A of the Act and should have gone deeper into the evidence and opportunity of hearing by leading evidence should have been provided to the complainant, the State as well as the accused but no such action was taken by the Court below. Learned AGA supports the contention raised by learned counsel for the revisionist.;