SEKHAR BALA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Challenge is to the order dated 23.09.2008 passed by the learned Additional Sessions Judge, Fast Track Court No.IV, Krishnagar, District Nadia in Sessions Case No.129(7) of 2007 thereby disposing of the petition of the accused / petitioner rejecting his prayer for trial before the Juvenile Court on the ground that he was minor on the date of incident.

(2.) Being aggrieved by the order, the petitioner has come up with this application under Section 401 read with Section 482 of the Code of Criminal Procedure. The petitioner was arrested on 12.06.2007 on the allegation that he came to India from Bangladesh without any valid passport or document and thereby he committed an offence punishable under Section 14 A of the Foreigner Act and Section 12 of the Passport Act. Police submitted chargesheet against the petitioner under the above Sections. The contention of the petitioner is that he was below 18 years of age at the time of incident and so he should be tried by the Juvenile Justice Board. His prayer was rejected by the impugned order on the ground that he was not minor at all on the date of the incident. Having considered the submission of the learned Advocate for the petitioner and on perusal of the materials on record, I find that the petitioner did not come to Court with clean hands. His only intention is to drag the trial before the Sessions Court any how. Chargesheet was submitted against the accused person showing that the petitioner was 18 years of age on the date of occurrence. Previously, the petitioner claimed before the learned Trial Judge that he is a citizen of India and he filed one certificate from the Headmaster of a school, namely, Purba Vaina Primary School and one birth certificate from the Badkulla P.H.C. issued by Dr. Biswajit Dey to show that he was a citizen of India and that he was minor on the date of occurrence. Those documents were sent to the concerned authorities for verification and those authorities informed the Trial Court that those documents were fake. The Headmaster of the school also intimated that he was not a student of that school. The school certificate was not issued at all by that Institution. The petitioner was not born in the said hospital. Thereafter as the petitioner insisted that he was minor, ossification test was done on 20.06.2008 at the instance of the Court and the Medical Officer after holding the ossification test came to a conclusion that the applicant was more than 20 years of age on 20.06.2008. So, according to the report of the ossification test conducted by a Medical Officer, the petitioner was more than 19 years of age on the date of occurrence, that is, on 12.06.2007. Mr. Chowdhury, learned Advocate for the petitioner, contended that since the doctor opined that the petitioner was 20 years of age on 20.06.2008 and if the margin of two years on either side is taken into consideration and if the benefit is given to the petitioner on that count, the age must come below 18 years on the date of occurrence, that is, on 12.06.2007. With due respect to the learned Advocate for the petitioner, I am of the view that the Medical Officer opined that the age of the petitioner was more than 20 years on 20.06.2008. Such determination of age by the Medical Officer is arrived after taking all aspects of the ossification test which lay down various age groups for different tests. Taking into average of such margins, the age of the petitioner was determined as more than 20 years on 20.06.2008. So, one year back the age of the petitioner must be 19 years plus. Therefore, the petitioner could not be considered at all as a juvenile on the date of incident.

(3.) The learned Advocate for the petitioner also contended that according to Section 7A of the Juvenile Justice (Care & Protection of Children) Act, 2000 as amended in 2006 and the rules made thereunder in 2007 particularly Rule 12 a separate enquiry is to be conducted for determination of the age. In this respect, upon due consideration of Section 7A of the Act along with Rule 12 of the Rules of 2007 thereunder, I am of the view that in fact, the documents as produced by the petitioner were considered first and those were found to be fake by the learned Trial Court. Thereafter, in order to ascertain the age of the petitioner, medical test was conducted at the Government hospital and it was found that the petitioner was more than 18 years of age at the time of occurrence. In fact, if all these steps are taken into consideration together, the result remains that actually enquiry was conducted by the learned Trial Judge under Section 7A of the Act read with Rule 12 of the Rules of 2007 thereunder. So, I am of the view that such submission of the learned Advocate for the petitioner cannot be accepted. In view of my findings, I am of the view that the application is without any substance. It is, therefore, dismissed.