Mohd. Ajeem vs State NCT of Delhi

Hima Kohli, J.—The present petition is filed by the petitioner u/s 397/401 read with Section 482 Cr.P.C. and Section 53 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (in short ''the Act'') praying inter alia for setting aside the order dated 3.4.2010 passed by the learned ASJ, dismissing the application filed by the petitioner u/s 7A of the Act for transferring his case to the Juvenile Justice Court in case FIR No. 79/2007 lodged with PS Ambedkar Nagar u/s 302/34 IPC.

Briefly stated, the facts of the case are that a FIR was registered on the complaint of one Shri Anish Malik with PS Ambedkar Nagar on 30.1.2007, stating inter alia that the petitioner and another accused, namely Salim, had an altercation with one Shri Sakir, known very well to the complainant, and they jointly assaulted Shri Sakir in his presence. The complainant stated that the petitioner and the other co-accused ran away from the spot while he and his brother rushed the victim to Safdarjung Hospital, where he died on account of the fatal assault. The petitioner and the other co-accused were arrested in February 2007.

An application was filed by the petitioner on 22.11.2008 u/s 7A of the Act for holding an inquiry to determine his age. Vide order dated 04.02.2009, the trial court held that the petitioner was not a juvenile on the date of the incident and dismissed his plea for medical examination to ascertain his age. Aggrieved by the said order, the petitioner filed a revision petition before this Court, registered as Crl. Rev. P. No. 258/2009, which was allowed vide order dated 16.7.2009. The trial court was directed to conduct an inquiry as to the age of the petitioner, in accordance with the mandate of Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short ''the Rules'').

It is submitted that in compliance of the aforesaid order, the trial court got an ossification test of the petitioner conducted. In the report of the DDU Hospital dated 31.8.2009, it was opined that the age of the petitioner was more than 20 years, but less than 22 years. A certified copy of the said report is handed over by the counsel for the petitioner, and is taken on the record.

In the present petition, the grievance of the petitioner is limited to the extent that despite the aforesaid observation made by the Medical Board, the learned ASJ, while giving the petitioner, the benefit of Rule 12(3)(b) of the aforesaid Rules, did not declare him to be a juvenile on the date of the incident. Rule 12(3)(b) mandates that in case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

I have heard counsel for the petitioner and have perused the record, including the ossification test report of the petitioner. The limited controversy in the present case hinges on the age of the petitioner as on the date of the offence, i.e., 30.1.2007, after grant of the benefit of age to him under Rule 12(3)(b) of the Rules.

Perusal of the impugned order reveals that the learned ASJ had decided to give the petitioner, the benefit of age relaxation under the aforesaid Rules. The ossification test of the petitioner was conducted by the Medical Board on 31.8.2009. As on the said date, the age of the petitioner was opined to be more than 20 years, but less than 22 years. In such circumstances, Rule 12(3)(b) permits benefit to be given to the child or the juvenile by considering his age on the lower side, within the margin of one year. If such a latitude was given by the learned ASJ, then on 31.8.2009, the age of the petitioner could be considered 19 years. Considering the fact that the incident in question relates back to 30.1.2007, a period of about 2 1/2 years has to be excluded from the aforesaid timeline. As a result, as on the date of the incident, i.e., on 30.1.2007, the age of the petitioner would be approximately 16 1/2 years.

In this view of the matter, the impugned order, limited to the conclusion arrived at that the petitioner was not a juvenile, is set aside. Having regard to the fact that the learned ASJ has given the benefit of Rule 12(3)(b) to the petitioner, his age on the date of the occurrence of the offence comes to 16 1/2 years (approx.). Consequently, the petitioner has to be treated as a juvenile as on 30.1.2007. Ordered accordingly.

The present petition is therefore allowed.