- (1.) This revision application is directed against the order dated 17.10.2012 passed by the learned District & Additional Sessions Judge - Vth, Ranchi in Cr. Appeal No.159 of 2012 preferred by the petitioner against the order dated 27.06.2012 passed by the learned Chief Judicial Magistrate, Ranchi, whereby the petitioner's plea of juvenility has been rejected.
(2.) Learned counsel, for the petitioner, has submitted that the date of occurrence is 05.08.2009. The petitioner had voluntarily surrendered before the court of learned Chief Judicial Magistrate, Ranchi on 11.08.2009. On completion of investigation, the police on 31.08.2009 submitted charge-sheet under Section 302 of the Indian Penal Code against the petitioner. Thereafter the petitioner filed the application under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short J.J. Act) for declaring him to be a juvenile. In support of the claim of juvenility the petitioner had produced the Admit card of the annual examination conducted by the Jharkhand Academic Council (for short JAC), Ranchi of the year 2007, along with the mark-sheet, provisional certificate and character certificate wherein the date of birth of the petitioner is mentioned as 29.12.1991. That the learned Chief Judicial Magistrate, Ranchi during enquiry, got the documents verified by the Probation Officer, Ranchi and on being satisfied about the genuinity of the documents, declared the petitioner to be a juvenile by order dated 19.11.2009 and transferred the case of the petitioner to the Principal Magistrate, Juvenile Justice Board, Ranchi. Where after since the petitioner was a juvenile, he was enlarged on bail by order dated 08.01.2010. It is contended that the informant/O.P. No.02 preferred an appeal before the learned Judicial Commissioner, Ranchi challenging the order dated 19.11.2009 of the C.J.M., Ranchi on the ground that the petitioner had earlier passed Fauqania Examination in the year 2006 wherein his date of birth is recorded as 10.01.1991 accordingly, on the date of occurrence, i.e., on 05.08.2009, he was not a juvenile rather he was aged above 18 years. It is submitted that the Additional Sessions Judge - Vth, Ranchi while setting aside the order dated 19.11.2009 passed by the learned Chief Judicial Magistrate, Ranchi remanded the matter to the court below with a direction to conduct the enquiry afresh for determining the juvenility of the petitioner. Thereafter the learned Chief Judicial Magistrate, Ranchi again conducted an enquiry under Section 7A of the J.J. Act and ordered for constitution of a Medical Board for determining the age of the petitioner and on the basis of the medical report, held that the petitioner was aged above eighteen years and not a juvenile. Learned counsel has contended that the order dated 19.11.2009, passed by the learned Chief Judicial Magistrate, Ranchi, declaring the petitioner to be a juvenile, did not suffer from any illegality since the enquiry was conducted in accordance to the prescribed procedure under Rule 12 of the J.J. Rules, 2007, for determining the age of a juvenile in conflict with law. It is argued that Rule 12 provides that for determining the age of a juvenile, the court has to first consider the matriculation or any equivalent certificate and in the absence thereof, to consider the date of the birth certificate issued from the school first attended (other than a play school) and in absence, thereof, the birth certificate of the corporation or municipal authority or a panchayat. It is argued that it would be evident that the JAC has not stated that the 2007 certificate issued by JAC, mentioning the date of birth of the petitioner as 29.12.1991, is forged or fabricated and has not denied the genuinity of the document. It is contended that even if it is assumed that the petitioner had appeared for Fauqania Examination in 2006, wherein the date of birth of the petitioner is mentioned as 10.01.1991, then also the petitioner was aged above at 18 years 6 months and 25 days. It is argued that Rule 12(3)(b) of the Juvenile Justice Rule, 2007 stipulates that in such cases one year has to be reduced thus if one year's relaxation is given then the petitioner was aged below 18 years on the date of occurrence. It is contended by the learned counsel that the informant/O.P. No.02 did not raise any objection regarding the genuinity of the certificate produced by the petitioner, even during the hearing of bail application, and it is only after fourteen months that the order dated 19.11.2009 passed by the Chief Judicial Magistrate, Ranchi declaring the petitioner to be a juvenile was challenged in the said Cr. Appeal with allegations that the petitioner had wrongly mentioned his date of birth as 29.12.1991 on the basis of a forged certificate of 2007 and he had passed the Fauqania Examination earlier in 2006 wherein the date of birth is mentioned as 10.01.1991 Learned counsel for the petitioner has argued that in the case of Ashwani Kumar Saxena v. State of M.P., 2012 3 EastCriC 602 (jhr.) the Hon'ble Apex court, has held that the question of obtaining a medical opinion by constituting a medical board arises only when the documents, as enumerated under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 are not available. It has been held by the Hon'ble Supreme Court that for determination of age, the procedure laid down in Rule 12, should be adhered to by the court. It is contended that the Hon'ble Supreme Court has held that if two views are possible then the court should give benefit in favour of the accused by holding him to be a juvenile in border line cases. Learned counsel has contended that in the instant case, it is evident that the margin is of only 6 months and 25 days. Since the present case comes within the purview of border line cases therefore, the order passed by the learned Additional Sessions Judge - Vth, Ranchi as well as the learned Chief Judicial Magistrate, Ranchi are fit to be set aside as they have failed to extend the benefit of one year and the order has been passed against the provisions of law. It is submitted that in the case of Ashwani Kumar Saxena while dealing with the provisions regarding determination of age of a juvenile, the Hon'ble Supreme Court has held in para 35 as follows :- "35. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination." It is contended by the learned counsel that since the learned Chief Judicial Magistrate by order dated 19.11.2009 had, on the basis of the documents produced by the petitioner found the petitioner to be a juvenile, then in terms of Section 49(2) of J.J. Act, subsequent proof could not have been looked into. It is urged by the learned counsel that in view of the settled proposition of law the order passed by the learned Additional Sessions Judge and the learned Chief Judicial Magistrate are bad in the eye of law accordingly they are fit to be set aside.
(3.) Learned counsel, for informant/O.P. No.02, while refuting the contents of learned counsel for the petitioner has contended that, it is not disputed that the petitioner had initially produced the certificate of the Board Examination of JAC of the year 2007 showing the date of birth as 29.12.1991 but the informant/O.P. No.02 came to know that the petitioner had earlier appeared for Fauqania Examination in 2006, which was conducted by the Jharkhand Academic Council. That JAC had issued the certificate of 2006 wherein the date of birth of this petitioner has been as mentioned as 10.01.1991. It is contended by the learned counsel that the decision in the case of Ashwani Kumar Saxena relied on by the learned counsel for the petitioner can be applicable in a matter when there is no dispute regarding the genuinity of the documents mentioning the date of birth. It is contended that in the case at hand, two certificates of JAC are available mentioning varying date of birth. In one of the certificates, i.e., of 2006, the date of birth of the petitioner is mentioned as 10.01.1991 whereas, in the other, i.e., of 2007, the date of birth is mentioned as 29.12.1991. It is submitted that this is explicit of the fact that there are two documents each showing different date of birth of the petitioner. It is urged that since the date of birth in both the certificates are at variance hence the court below had rightly directed the enquiry to be conducted afresh as per procedure prescribed under Rule 12 of the J.J. Rules, 2007. Accordingly learned Chief Judicial Magistrate has rightly ordered for determination of age by constituting a medical board, in view of the ambiguity mentioned in the impugned order which does not require any interference by this court.;