D.G.R.PATNAIK, J. - (1.) PETITIONER has filed the instant revision application under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 for setting aside the order dated 10.6.2008 passed by the Additional Sessions Judge, FTC - VIth, Dhanbad whereby the petitioners prayer for sending his case for consideration of trial by the Principal Magistrate, Juvenile Justice Board, Dhanbad, on the ground that the petitioner is below 18 years of age, was rejected.
(2.) THE petitioner was arrested in connection with the case registered for the offences under Sections 20, 22 and 29 of the N.D.P.S. Act. He was produced on arrest before the learned Chief Judicial Magistrate. Considering the petitioner to be an adult above 18 years of age by his physical appearance, the learned Chief Judicial Magistrate remanded the petitioner to judicial custody. The case was eventually transferred to the court of Additions Sessions Judge, FTC -VIth - cum Special Judge, Dhanbad who was competent to try the offences under the N.D.P.S. Act. The petitioner filed a petition before the learned Additional Sessions Judge, stating that he is a juvenile below the age of 18 years of age and therefore, his case should be sent to the Principal Magistrate, Juvenile Justice Board, Dhanbad for trial. In support of his age, the petitioner had filed school leaving certificate and birth certificate issued by the municipal authority. The learned Special Judge proceeded to inquire into the issue regarding the age of the petitioner and examined witnesses produced by the petitioner. However, after recording his observation that witnesses are not reliable and their evidences cannot be accepted, the learned court below referred the petitioner to the Medical Board for assessment of his age. The Medical Board submitted its report opining that the petitioners age was about 20 years. On the basis of the medical evidence, the learned Special Judge rejected the petitioners prayer for remanding his case to the Juvenile Justice Board and retained the case in his own file for proceeding. The petitioner has challenged the impugned order of the court below on the ground that it is totally against the provisions of law under the Juvenile Justice Act and the procedure adopted by the learned court below for inquiry for assessment of age is against the guidelines laid down in the Act. Learned Counsel for the petitioner argues that when the petitioner had raised a plea that he was a juvenile and that his case should be sent to the Juvenile Justice Board for trial, it was incumbent upon the court below to refer the petitioners case to the Juvenile Justice Board for assessment of the petitioners age since such power under the Act is vested with the Juvenile Justice Board only. It is further argued that under Sub -rule 5 of Rule 20 of the Juvenile Justice (Care and Protection of Children) Rules, 2001, procedure has been laid down for the assessment of the age of the person referred to the Board. The provision envisages that for the purpose of assessment of the age, the Board shall obtain a Birth certificate issued by the Municipal Authority or date of birth certificate of the school first attended or matriculation certificate or equivalent certificate, if available. It is only in absence of any of these documents, that the Board can refer the person to the Medical Board for assessment of the age. In the instant case, despite the fact that the petitioner had produced not only the school certificate but also the birth certificate issued by the municipal authority and yet, the learned court below has ignored these two documents on presumption that these two documents are unreliable and has proceeded to refer the petitioner to the Medical Board for assessment of his age. Learned Counsel refers in this context a judgment in the case of Dablu @ Manish Kumar v. State of Bihar reported in (2004) (1) East Cr.C 651 (Jhr).
(3.) COUNSEL for the State on the other hand, while controverting the grounds advanced by the petitioner, would offer support to the finding recorded by the court below in the impugned order. Learned Counsel submits that the learned court below was competent enough to make an inquiry regarding the age of the petitioner and for the purpose of such inquiry, it had the authority to refer the petitioner to the Medical Board for assessment of the petitioners age and therefore, there is no illegality or impropriety in the impugned order.;