Lal Babu Singh vs State of West Bengal

R.K. Bag, J.

The petitioner has preferred this criminal revision challenging the order dated 02.04.2012 passed by Learned Additional Session Judge, 4th Court, Sadar, Burdwan in Sessions Case No. 101 of 2011 arising out of Burdwan P.S. Case No. 127 of 2011 dated 28.02.2011 under Sections 302 of the Indian Penal Code, by which Learned Judge of the trial court rejected the plea of juvenility of the petitioner.

It appears from the materials on record that the petitioner is an accused in Sessions Case No. 101/2011 u/s 302 of the Indian Penal Code. The petitioner filed an application before the trial court on 06.09.2011 praying for sending the case to the Juvenile Board on the ground that the petitioner was juvenile on the date of commission of the offence. It also appears from record that the petitioner disclosed in the petition before the trial court that he was 16 years of age at the time of commission of the offence and that he had no formal education. It appears from the impugned order challenged in the criminal revision that learned Judge of the court below called for the Admission Register of Atagarh Tajpur Primary School at the instance of the de facto complainant for ascertaining the date of birth of the petitioner from the Admission Register of the said school. Learned Judge of the trial court considered the said Admission Register and found that the date of birth of the petitioner was 02-11-92 and on the basis of the mathematical calculation, learned Judge arrived at the conclusion that the petitioner attained majority on the date of commission of the offence and the plea of juvenility of the petitioner was rejected. Mr. Bijoy Adhikary, learned counsel for the petitioner submits that the de facto complainant cannot play any role in the enquiry to be conducted by the learned Judge of the trial court for deciding whether the petitioner was juvenile on the date of commission of the offence. According to Mr. Adhikary, learned Judge of the trial court should not have considered the date of birth as recorded in the Admission Register of the school, because the petitioner has specifically pleaded that he had no formal education. Mr. Adhikary also submits that the enquiry was not conducted by learned Judge of the court below in accordance with the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007.

Mr. Amartya Ghosh, learned counsel representing the State submits that the Admission Register of the school does not fall within the ambit of Rule 12(3)(a) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. According to Mr. Ghosh, the plea of the petitioner that he had no formal education should also be looked into by learned Judge of the trial court, particularly when the de facto complainant has filed an application through the learned Public Prosecutor pleading that the petitioner studied at Atagarh Tajpur Primary School.

Having heard the learned counsels representing the respective parties and on consideration of the impugned order challenged in this criminal revision, I find that learned Magistrate had taken into consideration the date of birth of the petitioner recorded in the Admission Register in Atagarh Tajpur Primary School for the purpose of deciding whether the petitioner was juvenile on the date of commission of the offence. It is relevant to point out whenever the petitioner being the accused of the criminal case has taken the plea of juvenility, learned Judge will have to conduct the enquiry by following the procedure laid down in Section 7A of Juvenile Justice (Care and Protection of Children) Act, 2000. For the purpose of conducting the said enquiry learned Judge will have to consider the documents as laid down in Rule 12(3)(a) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and only in the absence of any document enumerated in Rule 12(3)(a) of the said Rules, learned Judge of the court below can call for medical opinion as laid down in Rule 12(3)(b) of the said Rules for the purpose of determination of the age of the petitioner on the date of the commission of the offence. Since the enquiry conducted by the learned Judge of the court below was not held in conformity with the provision of Section 7A of the Juvenile Justice (Care and Protection of Children), Act 2000 and in accordance with the provisions of Rules 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, I am inclined to set aside the order passed by learned Judge of the trial court. It is pertinent to point out that learned Judge of the trial court relied on the entries made in the Admission Register of the school though the Admission Register is not a document enumerated in Rule 12(3) (a) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. In view of my above findings, the impugned order dated 02.04.2012 passed by Learned Additional Session Judge, 4th Court, Sadar, Burdwan in Sessions Case No. 101 of 2011 is set aside. Learned Judge will conduct the enquiry in accordance with Section 7A of the Juvenile Justice (Care and Protection of Children), Act 2000 and also in compliance with Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 for the purpose of deciding the plea of juvenility of the petitioner.

Criminal revision is, thus, allowed. The application being CRAN No. 1941 of 2013 is disposed of.

Let a copy of this judgment and order be sent down to learned court below for favour of information and necessary action.

Criminal Section is directed to supply urgent Photostat certified copies of this order to the parties, if applied for, after compliance with all necessary formalities.