MURTAZA TARIQ Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) The petitioner, who is facing trial in FIR No.44/2018 registered in Police Station, Kreeri for offences under Section 376 RPC and Section 4 of Protection of Child from Sexual Offences Act, 2012, claims juvenility and feels aggrieved of the orders dated 07.12.2018 and 02.02.2019, both passed by the Court of learned Sessions Judge, Baramulla ("the trial Court") and seeks a direction to the trial Court to refer the trial to Juvenile Justice Board.

(2.) In terms of order dated 07.12.2018, the trial Court with a view to ascertain his age and dispose his claim of juvenility referred the petitioner to a medical board for determination of his age. In terms of order dated 02.02.2019 passed in the same proceedings, the trial Court, upon receipt of the report/medical opinion from the board of doctors, has rejected the petitioner's plea of juvenility and has held him major at the time of commission of offence. Pertinent to note that the order impugned dated 07.12.2018 was initially accepted by the petitioner and no proceedings against it were taken. It was only when adverse opinion by the Medical Board was received by the Court and pursuant thereto, the petitioner's plea of juvenility was rejected by the trial Court vide order dated 02.02.2019, the petitioner thought of challenging the basic order.

(3.) The impugned orders have been assailed by the petitioner on various grounds but before appreciating the same, a brief reference to the factual antecedents would be worthwhile. Police Station, Kreeri registered FIR No.44/2018 against the petitioner on the allegation of commission of offences under Section 376 RPC and Section 4 POCSO and set the investigation in motion. During investigation, offences under Section 376 RPC and Section 4 of POCSO were established and a final report in this regard was submitted before the trial Court. The petitioner moved an application before the trial Court for seeking his trial under the Juvenile Justice (Care and Protection of Children) Act, 2013 on the ground that he was juvenile on the date of commission of offence as substantiated by the date of birth/school leaving certificate issued by the Headmaster, Govt. Middle School, Hail, Zone Bagoora. The petitioner also moved another application claiming that his name was wrongly reflected in the challan as Nazir Ahmad Parray instead of his actual name i.e. Murtaza Tariq. The trial Court, after finding variations in various documents pertaining to the age of the petitioner and also taking note of the admission by the petitioner while recording his statement under Section 242 Cr.P.C. that he was 21 years old, thought it appropriate to get the petitioner medically examined by a Medical Board for determination of his age. The trial Court vide order dated 07.12.2018 directed the Chief Medical Officer, Baramulla to constitute a Medical Board to determine the age of the petitioner and submit his report within two days. In compliance, the Medical Board was constituted, which, after examination of the petitioner, opined that the petitioner appears to be more than 18 years and less than 25 years of age. The trial court placing reliance on the opinion of the Medical Board and after affording opportunity of being heard to the petitioner, declined to accept the plea of juvenility raised by the petitioner and, accordingly, dismissed his application.