Ravi Nath Verma, J. - (1.) BY way of this revision application, the petitioner Bimal Gorai takes exception to the order dated 19.02.2015 passed by learned Additional Sessions Judge -V, Dhanbad in Sessions Trial No. 463 of 2012 whereby and whereunder the petition filed by the petitioner under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) read with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the Rules) for declaring him Juvenile, has been rejected.
(2.) IT appears from the record that on the basis of a written report of the informant (14 years old girl), the First Information Report was lodged on 14.06.2012 at 10.00 p.m. on the allegation that while the informant was playing outside her house alongwith his younger brother, the accused, who is the present petitioner, asked her to bring water in "Lota" and when the informant brought water, the accused forcibly took her inside his room and closed the door and committed rape upon her and when her brother reached, alarmed for help and called her mother, the accused did not open the door and after some time he threw the victim out of the room and again closed the room and when the father of the informant came back, the matter was reported to the police station. It further appears that during pendency of the trial, a petition was filed at the instance of the petitioner under Section 7(A) of the Act read with Rule 12 of the Rules claiming himself to be a Juvenile on the date of occurrence i.e. 14.06.2012. It was also stated in the said petition that the petitioner never attended any school and as such he has no school certificate whatsoever and his case may be referred to Medical Board for assessment of his age. But it appears that no order was passed on the said petition dated 07.10.2014 filed by the petitioner rather the court proceeded with the trial. It further appears that during his jail custody the petitioner appeared in Matriculation examination in April, 2014 from jail through National Institute of Open School running under the Government of India and the petitioner was declared successful in the said examination and in the certificate issued by the said school, his date of birth was mentioned as 09.06.1995. After receiving the said Matriculation certificate, the petitioner again filed a petition on 07.01.2015 for determination of his age claiming his juvenility relying upon the date of birth given in the said certificate and this time the court below rejected his both the applications dated 07.10.2014 and 07.01.2015 by the impugned order holding as follows: - "From it's perusal it transpires that both the petitions filed by the accused for declaring him 'juvenile' is self contradictory in nature and there is no consistency in the plea of the accused. The trial is at the fag end and the accused never objected regarding his age since long. Accused has not come before the court with clean hands. So, there is no need of any inquiry regarding the age of accused because the J.M. has had ascertained the age of accused as 21 years at the time of his first remand. Not only that in the memo of arrest the age of the accused has been mentioned as 21 years and the witnesses in the memo of arrest are the sister and brother -in -law of the accused and they have also not objected at that time regarding the age of the accused. The case of the accused is not a marginal case regarding his age and he is 21 years old as assessment made by the Judicial Magistrate at the time of his remand. Hence, the petitions filed by the accused dated 07.10.2014 and 07.01.2015 being self contradictory stands rejected."
(3.) LEARNED counsel appearing for the petitioner seriously contended that the court below while passing the order ignored the Provisions of Act and Rules as envisaged in Section 7(A) of the Act and Rule 12 of the Rules, 2007. It was also submitted that the sub -Rule (3)(b) of Rule 12 clearly stipulates that in absence of any certificate the court will direct the assessment of age by duly constituted Medical Board but the court below on mere conjecture and surmises and relying upon assessment of age of the petitioner at the time of remand, rejected his prayer. Learned counsel in support of his contention has relied on Shah Nawaz v. State of U.P. : (2011) 13 SCC 751 and Vicky Sao Vs. State of Jharkhand: : 2008(3) JLJR 203.;