BHOJRAJ MANSINGH SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner - original first informant has challenged an order passed by Judicial Magistrate, First Class (Traffic), Rajkot dtd. 24/1/2018 below Exhibit-12 in Criminal Case No. 14190 of 2016, whereby respondent - accused claimed that he was juvenile at the time of commission of an offence as his date of birth is 20/10/1996 and in support of the same, respondent - accused produced a birth certificate and claimed that Investigating Officer be directed to separate the charge-sheet against the respondent - accused and send it before the Juvenile Justice Board under the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "the Act"), which came to be allowed.

(2.) Mr. Jatin Yadav, learned advocate for Mr. P.P. Majmudar, learned advocate for the petitioner, submitted that the impugned order passed by the trial Court, even if it is confirmed, the age has to be determined by the Board afresh, and therefore, the order impugned is required to be quashed and set aside.

(3.) Having heard learned advocate for the petitioner - first informant and having gone through the impugned order as also the documents annexed with the petition and the decision relied on by the learned advocate, it emerges that as such there is no birth, certificate produced by the respondent - accused to determine his age, registered and issued immediately or within reasonable time of the birth of him. What was relied on was the school leaving certificate reflecting his date of birth. However, no material is produced that in the school leaving certificate the date of birth, which is reflected, is entered into based on what material, if at all, the certificate of birth was available at the time of getting admission in the school, it must have been reflected from it that it has been stated on the basis of certificate of birth issued by competent authority. However, as observed by the learned Magistrate, birth certificate has been obtained by the respondent - accused based on the school leaving certificate, in which date of birth is entered in the record on 23/5/2017 and the said certificate is issued by the very authority on that very day. Since there is no reliable evidence on record, based on a document issued by the competent authority evidencing the date of birth of the respondent - accused, as provided under Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the Rules"), when the Magistrate finds that in absence of it, as provided under clause (b) of sub-rule 3 of Rule 12 of "the Rules", there was no option but to resort to find out the age on medical opinion from a Medical Board based on the ossification test so resorted to.