BIRENDER KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure has been directed by the petitioner Birendra Kumar Singh said to be the father of Manish the deceased of this case for quashing of the order dated 27/7/2000 passed by Sri A.K. Jaiswal. Judicial Magistrate, Ranchi in G.R. Case No. 948/99/2000 pending in the Court of 8th A.J.C., Ranchi whereby accused O.P. No. 2 Ashish Kumar was declared to be a juvenile aged about 14 year 2 months and 15 days old on the date of the occurrence.

(2.) The facts giving rise to this application are as follows. On the basis of fardbeyan of informant Binod Kumar Mishra, I/C Headmaster of Saraswati Vidya Mandir, Dhurwa, Ranchi a case under Section 302. IPC and Sections 26 and 27 of Arms. Act was registered against O.P. No. 2 Ashish Kumar on 29/4/1999 at 10.00 a.m. regarding the occurrence which is said to have taken place at 6.15 a.m. for commission of the murder of Manish Kumar Singh in the campus of the school. O.P. No. 2 Ashish Kumar surrendered before the Court of A.C.J.M., Ranchi on 7/5/1999 and he was remanded to judicial custody and on the very day of his surrender it was stated on behalf of accused on petitioner that he was a juvenile aged about 14 Years but the learned A.C.J.M. assessed that O.P. No. 2 is aged about 19 years and he was remanded to judicial custody. Thereafter the learned C.J.M. directed the Civil Surgeon-cum-Chief Medical officer, Ranchi to determine the age of O.P. No. 2 by constituting a Medical Board vide letter No. 1259 dated 3/7/ 1999 and the Medical Board found O.P. No. 2 aged about 18 to 19 years on 5/8/1999. Charge-sheet in this case has been submitted on 30/6/1999. The learned C.J.M., Ranchi had also called for a report from the Principal, Saraswati Vidya Mandir, Dhurwa, Ranchi regarding the age of O.P. No. 2 and according to the admission register of the said school the date of birth of O.P. No. 2 is 14/2/1985. Thereafter cognizance in the case was taken and the case was transferred to the Court of Sri B.N. Prasad. Judicial Magistrate, Ranchi for commitment. A petition was filed on behalf of O.P. No. 2 before the Court of Sri B.N. Prasad, Judicial Magistrate, Ranchi that O.P. No. 2 is a juvenile within the meaning of Section 2(h) of Juvenile Justice Act, 1986 (in short the Act) on the ground that as per school admission register the date of birth of O.P. No. 2 is 14/2/1985. Thereafter evidence was recorded on the question as to whether O.P. No. 2 is a juvenile or not. After hearing both the parties and the evidence on the record Sri AK. Jaiswal. Judicial Magistrate. Ranchi vide impugned order dated 27/7/2000 held that O.P. No. 2 is a juvenile under Section 2(h) of the Act and on the date of the occurrence he was 14 years 2 months and 15 days old. Thereafter vide order dated 10/8/2000 he has committed the case to the Court of Sessions and this case is pending before the Court of Sri S.P. Rai, 13th A.J.C., Ranchi and it bears Sessions Trial No. 459 of 2000.

(3.) Learned counsel for the petitioner has submitted that the impugned order is illegal as Sri A K. Jaiswal. Judicial Magistrate, Ranchi is not a competent court under Section 5 of the Act and the impugned order passed by him is without jurisdiction and abuse of the process of Court and the learned Magistrate ought to have forwarded the matter to the competent Juvenile Court having jurisdiction in respect thereof for ascertaining the age of O.P. No. 2 for coming to a finding as to whether O.P. No. 2 is a juvenile under Section 2(h) of the Act. It has also been submitted that in view of the materials on record in course of enquiry though conducted without jurisdiction by the learned Judicial Magistrate there are three dates of birth of the petitioner i.e., 14/2/1985. 2/4/1984 and 14/2/1983 and the evidence off other and mother of O.P. No. 2 clearly indicates that the date of birth, as recorded in the school certificate, is quite erroneous. It has also been contended that the learned Magistrate has overlooked the fact that the A.C.J.M. has assessed the age of O.P. No. 2 being 19 years and the Medical Board has assessed his age between 18 to 19 years. Learned counsel for the petitioner has placed reliance in the case of Rama Kant v. State of U.P.1, and has submitted that the entries made in school register are not at all reliable and the medical opinion showing the accused to be between 18 to 19 years coupled with the observation of the Court on the date of surrender of O.P. No. 2 has to be given due weight whereby it is crystal clear that O.P. No. 2 was not a juvenile on the date when he had surrendered before the. Court. Relying upon another case law reported at Amit Das v. State of Bihar2, it has been submitted that crucial date for determination of age of O.P. No. 2 is the date when he is brought before the competent authority and not the date of commission of offence in view of Section 32(1) of the Act. Further reliance has been placed on another case law reported at 2000(1) East Cr C 548 (Pat), in which it has been held that it would be safer to rely upon the medical option based on radio logical and other physical characteristics than the school certificate for determining the age more accurately when there is conflicting evidence relating to the age from the school certificate and it has been submitted that specially the evidence of father and mother of O.P. No. 2 clearly indicates that the age, as recorded in the school certificate, is patently incorrect.