ASHU @ ASHUTOSH KUNDEY Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This petition is against the order dated 09.01.2018 passed in Criminal Revision No.04/2018 by the VIIth Additional Sessions Judge, Raipur, whereby the revision preferred by the petitioner was dismissed by affirming the order dated 25.11.2017 passed by the Principal Magistrate, Juvenile Justice Board, Raipur. By the original order, the Principal Magistrate, Juvenile Justice Board has dismissed the application filed by the petitioner for ossification test.

(2.) As per the prosecution case, the petitioner is arrested by the Police Station Tikrapara for commission of offence under Section 376 , 450 , 342 , 506 of I.P.C. and Section 3 & 4 of POCSO Act. Pursuant to the FIR No.375/2017 dated 20.07.2017, he was produced before the Court of J.M.F.C. and was remanded to judicial custody. On 31.07.2017 an application was moved by the petitioner to send him to Child Observation Home claiming himself to be a juvenile. The said application was dismissed by the Magistrate by an order dated 09.08.2017. Subsequently, another application on behalf of the petitioner was moved before the Additional Sessions Judge on 18.08.2017 for his ossification test. The said application was dismissed by the Court on 25.09.2017 and the charge sheet was filed on 13.10.2017. On 09.11.2017 another application was moved by the petitioner with a prayer to send him to Juvenile Justice Board for ascertaining his age by conducting ossification test. The said application was dismissed by the Sessions Court on 14.11.2017. Thereafter, the petitioner had moved an application before the Juvenile Justice Board, Raipur, for ascertaining his age and prayer was made for ossification test. The said application was dismissed by the Juvenile Justice Board Raipur vide order dated 25.11.2017. The said order was subject of challenge in the revision and the revisional Court of VII th Additional Sessions Judge Raipur by the impugned order affirmed the dismissal of claim whereby prayer was made to conduct the ossification test.

(3.) Learned counsel for the petitioner would submit that in the instant case, two documents are on record as the date of birth in the School register has been shown as 10.01.1999 and the birth certificate issued by the Municipal Corporation Raipur shows the date of birth on 10.01.2000. It is contended that since the date of incident in this case is stated to be 19.07.2017, as such, the ambiguity has been created and eventually the date of birth which is issued by the Municipal Corporation which shows it is on 10.01.2000 should have been accepted and in order to fortify the same, the ossification test should have been ordered for. The counsel referred to (2016) 12 SCC 744 and submits that in view of the ratio laid down in that case in order to determine the correct age, order for ossification test should have been ordered. It is stated that it was necessary to determine the age of the person i.e. the petitioner who claims to be a juvenile. She further submits that it was the Juvenile Justice Board which is alone empowered to order for ossification test to determine the age of the petitioner, therefore, even if any application was filed before any other Court that would be without any jurisdiction and any order will not affect on merit. It is stated when the application for ossification test was refused by Juvenile Justice Board the validity of the same can always be challenged.