Sameer Lakra vs State of Jharkhand

Harish Chandra Mishra, J.—Heard learned counsel for the petitioner and learned counsel for the State. Petitioner is aggrieved by the order dated 3.2.2014 passed by the learned Sessions Judge, Gumla, in S.T. No. 241 of 2011, whereby the application filed by the petitioner to declare him juvenile was rejected by the Court below.

Prior to this order, the claim of the petitioner was rejected by the Trial Court below earlier also, against which the petitioner had filed Cr. Revision No. 312 of 2013, which was allowed by order dated 10.5.2013, in view of the fact that this Court found that the Court below had not followed the procedure prescribed under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, for determining the age of the petitioner, which was required to be done. By the said order dated 10.5.2013, the Court below was directed to take step for determining the age of the petitioner in accordance with the procedures prescribed under the said Rules. Thereafter by order dated 3.2.2014, the application of the petitioner to declare him juvenile was again rejected by the Court below, stating that the petitioner had claimed the plea of juvenility on the basis of the date of birth certificate from the school first attended, but the Court below, for the reasons detailed in the impugned order, has not placed reliance upon the said certificate stating that the same was not validly proved and accordingly, rejected the application filed by the petitioner.

Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal and still the procedure prescribed under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 has not been followed by the Court below. Learned counsel accordingly, submitted that the impugned order cannot be sustained in the eyes of law.

Learned counsel for the State has opposed the prayer.

Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 reads as follows:

"12. Procedure to be followed in determination of age------

(1) *** *** ***

(2) *** *** ***

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. 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,

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

Thus, from plain reading of the said Rules, it is apparent that if the Court below did not rely upon the birth certificate given by the school and in case the certificates as detailed in this Rule are not available, it was incumbent upon the Court below to follow the provision in Rule 12(3)(b) by obtaining the medical opinion from a duly constituted Medical Board to declare the age of the petitioner. Admittedly, this provision has not been followed by the Court below while rejecting the application of the petitioner.

In that view of the matter there is a patent illegality in the impugned order, for which the impugned order cannot be sustained in the eyes of law.

Accordingly, the impugned order dated 3.2.2014 passed by the learned Sessions Judge, Gumla, in S.T. No. 241 of 2011, is hereby, set aside and the Court below is directed to pass the order afresh after strictly following the procedures prescribed under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007.

At this stage, it has been submitted by the learned counsel for the petitioner that the petitioner is in custody for more than 3 1/2 years for deciding the age of the petitioner only. It is expected that the Court below shall decide the plea of the petitioner expeditiously, and in any case with a period of two months.

This application is accordingly, allowed with the directions as above. Let this Order be communicated to the Court concerned through FAX at the cost of the petitioner.