DABLU ALIAS MANISH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This revision application has been preferred under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 against the order dated 30th September, 2003 passed by the 2nd Additional Sessions Judge, Darbhanga in Criminal Appeal No. 16 of 2003 whereby it has reversed the order dated 25.7.2003 passed by Additional Chief Judicial Magistrate, Darbhanga in Misc. Case No. 8 of 2003 (G.R. 734 of 2003 arising out of Laheriasarai P.S. Case No. 90 of 2003) and held that the petitioner is a juvenile.

(2.) Short facts giving rise to the present application are that the petitioner is an accused in Leheriasarai P.S. No. 90 of 2003 registered under Section 307, 324 and 323/34 of the Indian Penal Code for an occurrence which is alleged to have taken place on 21.4.2003. Petitioner claimed to be a juvenile and for the determination of this age an enquiry as provided under Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short the Act), was held by the Additional Chief Judicial Magistrate. Petitioner in support of his contention that he is a juvenile, produced the school leaving certificate in which his date of birth has been entered as 15th of August, 1986. Petitioner was referred to the Darbhanga Medical College and Hospital for his examination by the Medical Board for determination of his age and in pursuance thereof he was examined by the Medical Board on 18.6.2003 and on that date radiological test and other tests were held and ultimately the Medical Board submitted its report dated 27.6.2003 assessing the age of the petitioner between 18-19 years. The Additional Chief Judicial Magistrate observing that there can be margin of error in determination of age by radiological examination by two years on either side and relying on the entry made in the school leaving certificate as also from the appearance of the petitioner, held the petitioner's age to be about 17 years. Accordingly, he by order dated 25.7.2003 held the petitioner to be a juvenile. Against the said order the informant preferred Criminal Appeal No. 16 of 2003 which was heard by the 2nd Additional Sessions Judge, Darbhanga who by his order dated 30th September, 2003 set aside the order of the learned Magistrate and held the petitioner not to be a juvenile. While doing so the appellate Court observed that the genuineness of the school leaving certificate is doubtful and in the absence of any contemporaneous documents, such as ration card or any official document or horoscope etc. the learned Magistrate ought not to have placed reliance on the school leaving certificate.

(3.) Mr. Rajendra Narayan appearing on behalf of the petitioner submits that there being conflict between the age mentioned in the school leaving certificate and assessed by the medial board, date of birth entered in the school leaving certificate was rightly accepted by the Additional chief Judicial Magistrate which ought not to have been ignored by the appellate Court. He points out that error of two years on either side in respect of the age determined by the medical board is well known. He also highlights that the learned Magistrate nad the opportunity to see the petitioner, which opportunity the appellate Court did not had, and in such circumstance the appellate Court ought not to have reversed the finding of the learned Magistrate. In any view of the matter, Mr. Narayan contends that even if the age of the petitioner was 18 years on 18.6.2003 i.e., on the date of his examination by the Medical Board, on 21.4.2003 i.e., the date of occurrence, he was surely below 18 years of age. In support of the submission, Mr. Naryana has placed reliance on a judgment of the Supreme Court in the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and Ors., AIR 1982 SC 1297, and my attention has been drawn to the following passage from paragraph 9 of the said judgment:--