Nisha Gupta, J. - (1.) THIS Misc. petition under Sec. 482 Cr.P.C., has been filed against the order dt. 21.11.2012 whereby the application of the petitioner for sending the case to the Juvenile Justice Board has been rejected. The short facts of case giving rise to this petition are that on 08.03.2011, Om Prakash submitted a written report at Police Station Diholi, Dholpur regarding the incident alleged to have taken place on 07.03.2011 against unknown persons for rape with his minor daughter on which FIR No. 27/2011 has been registered and after investigation charge -sheet has been filed. The Sessions Judge committed the case to Court of Sessions Judge, Dholpur. During the trial, the petitioner moved an application for enquiry regarding the juvenility of the present petitioner and after enquiry the Principal Magistrate, Juvenile Justice Board declared him juvenile vide order dt. 19.03.2012. Thereafter, the petitioner moved an application before Sessions fudge, Dholpur for sending his case to Juvenile Justice Board which was declined, hence this petition.
(2.) THE only contention of the petitioner is that when present petitioner has been declared juvenile, the only option left with the Sessions Judge is to make over the case to the Juvenile Justice Board and order of the Sessions Judge for declining the same is perverse and be quashed. On the other hand, the learned Public Prosecution has submitted that mere is no quarrel about the fact that if the present petitioner is juvenile, he should have been tried by Juvenile Justice Board but the enquiry which has been conducted by the Juvenile Justice Board is per verse illegal and not according to Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000.
(3.) HEARD the learned counsel for the petitioner and learned Public Prosecutor and perused the impugned orders. The Juvenile Justice Board has declared the age of the petitioner as 16 years and 1 months on the basis of Birth Certificate from Smt. Sudamadevi Bal Vidyalaya and Principal of the School has also been examined before the Court. Rule 12 provides a scheme under which the age of a child or a juvenile in conflict with law or the victim could be determined and reliance could be placed on Jarnail Singh v. State of Haryana, : (2013) 7 SCC 263 in which it was held: "The manner of determining age conclusively, has been expressed in Sub -rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the Scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the Scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the School first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a Birth Certificate issued by a corporation or a Municipal Authority or a Panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion." The Court below has not conducted the enquiry as envisaged under Rule 12 of the Act and relied upon School Certificate of Class V and evidence of Pooran Singh, the School Headmaster as the Court has relied on the Birth Certificate from the School which is not the School first attended by the juvenile. The juvenile Girandpal has been examined during the enquiry and he has stated that he first studied in the School of his village but no certificate from that School has been obtained on record and Rule 12 of the Act clearly says that firstly matriculation or equivalent certificate would be relied upon and in absence of that, Birth Certificate from the School which has been first attended by the child would be relied upon and the Court below has relied upon the certificate where the child has studied in Class V which cannot be considered under the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Oral evidence has also been considered which could not be looked into as per the provisions of Rule 12 of the Act. Hence, the order dt. 19.03.2012 of Juvenile Justice Board and order dt. 21.11.2012 of Sessions Judge are quashed and set aside and Juvenile Justice Board is directed to enquire about the juvenility of the petitioner as provided under Rule 12 of the Act. With these directions, the petition is disposed of. Record of the Court below be also send forthwith.;