- (1.) The instant Criminal Revision Application has been preferred against the order dated 1.2.2012 passed by District & Sessions Judge, at Ghatsila in ST. No. 312 of 2011 arising out of Chakulia (Shyamsunderpur) P.S. Case No. 15 of 2011 corresponding to G.R. Case No. 127 of 2011, whereby and whereunder the learned court below has been pleased to hold the O.P. No. 2 to be a juvenile and ordered for transfer of records of the case to Juvenile Justice Board, Jamshedpur, for enquiry and trial. Heard learned counsel for the petitioners as well as learned counsel for the O.P. No. 2 and learned counsel for the State.
(2.) Learned counsel for the petitioner while assailing the impugned judgment submitted that it appears from the School Leaving Certificate that the name of the petitioner has been mentioned as Govind Barik whereas the petitioners' name is Govind Barik; that there was no reason as to why the School Leaving Certificate would have been obtained on 25.3.2011 in view of the fact that the occurrence had taken place on 22.3.2011 and the natural conduct of a parent would be first to ensure that necessary steps are to be taken in the case and it is rather unnatural for the parent to rush to the school to obtain School Leaving Certificate. It has been submitted that when the petitioner was produced in the court his age has been noted as 22 years by the court due to this fact the accused was not sent to the remand home; that the Investigating Officer investigated the case and submitted the report that the accused was aged 19 years. It has further been submitted that the alleged offence is heinous in nature of committing rape on a married woman on three consecutive dates i.e. 18.3.2011, 19.3.2011 and 22.3.2011. The Hon'ble Apex Court in the case of Om Prakash v. State of Rajasthan and Another, 2012 5 SCC 201 held that Juvenile Justice (Care and Protection of Children) Act, 2000 is available only to genuine juvenile accused and not to those who raise plea of juvenility merely to create smokescreen to hide the real age so as to escape punishment. Rule 12 Clause provides that the Board or the court shall decide the juvenility on the basis of physical appearance or documents. Accordingly the court has estimated the age as 22 years, and the school certificate is a manufactured document and the court has erred is giving a finding of genunity of such school certificate. Accordingly the order is not sustainable in view of the aforesaid judicial pronouncement and considering the heinous nature of the crime.
(3.) Mr. D.K. Karmakar, learned counsel for the O.P. No. 2 has argued that the impugned order is in accordance with Clause 3 Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 which prescribes the procedure for determining the age of a juvenile. The said Rule prescribes that priority is to be given to the matriculation certificate or its equivalent and in absence whereof certificate issued by school (other than play school) first attended and thirdly birth certificate or registration certificate; and in absence of the above documents, the court can direct the medical examination by a duly constituted Medical Board; that plea of juvenility was taken at the initial stage and the court had inquired into the matter but in terms of Section 7-A of the Act but without determining the age it had committed the case to the court of Session, whereafter the plea was raised before the Session Judge who considered the documents namely Ext. 1 which is entry in the Admission Register of the school and Ext. 2, School Leaving Certificate wherein the date of birth of the petitioner has been mentioned as 1.10.1995; that the date of occurrence is alleged to be on 18.3.2611, 19.3.2011 and 22.3.2011 and the court held that the petitioner was aged below 16 years i.e. a juvenile on the date of alleged offence, and referred the matter to the Juvenile Justice Board. It is argued that the order is in terms of the prescribed rules and requires no interference.;