RADHEY SHYAM Vs. STATE

JUDGEMENT

(1.) The petitioner is aggrieved by an order dated 25.7.2009 passed by the learned ASJ, Rohini Court, Delhi, holding inter alia that he is not a juvenile, as defined by the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act'). Before dealing with the submissions of the counsels for the parties, it is necessary to cull out the backdrop of the matter, as the case has a chequered history.

(2.) On 8.9.2005, the petitioner was arrested along with one Sh.Jaipal Singh for commission of an offence punishable under Sections 392/302/411/34 IPC and Section 25 of the Arms Act, in respect of an FIR No.797/2005 lodged by Sh.Puneet Vasudev, son of the deceased victim, Smt. Promila Vasudeva, registered with PS Prashant Vihar, Delhi. After the investigation was completed, a charge sheet was filed in the Court of the learned MM, who in turn, committed the matter for trial to the Sessions Court on 7.1.2006. After a period of 8 months, on 20.9.2006, the petitioner filed an application for transfer of his case to the Juvenile Court claiming himself to be a juvenile. In support of the application, the petitioner enclosed a photocopy of the scholar's register of Adarsh Janta Vidyalaya, Salempur, Khutiana, Firozabad(U.P.) showing his date of birth as 28.11.1988. The IO was directed to verify the documents and submit a report to the Court. As per the report submitted by the IO, the date of birth of the petitioner was found to be correct as per the school record and a statement given by the Principal of the school, was enclosed with the report. The IO also mentioned in the report that the date of birth of the petitioner, as recorded in the "Kutumbwar Register" of the village was 14.9.1988 and that there was variation in both the records.

(3.) Vide order dated 19.3.2007, the learned ASJ directed that an ossification test of the petitioner be got conducted from the All India Institute of Medical Sciences(AIIMS). As per the certificate dated 10.4.2007 issued by the Medical Board, AIIMS, it was opined that the bone age of the petitioner was more than 20 years. However, relying on the school leaving certificate filed by the petitioner and the entry recorded in the Kutumbwar Register, vide order dated 19.4.2007, the learned ASJ concluded that the petitioner was less than 18 years of age as on the date of the alleged offence. The aforesaid order was challenged by the complainant by filing a petition in the High Court, registered as Crl.RP. No.610/2007. Vide judgment dated 27.4.2009, the revision petition was allowed and the impugned order dated 19.4.2007 was set aside. It was directed that the petitioner be produced before the ASJ to hold an inquiry under Section 7-A of the Act in the prescribed manner after giving an opportunity to the petitioner, as also the complainant to cross-examine the witnesses who may be produced, to determine the question as to whether the petitioner was a juvenile at the time of commission of the alleged offence or not.