Suman vs State of Jharkhand

Jaya Roy, J.—Heard the learned counsel for the petitioner and the learned counsel for the State. The petitioner has filed this revision application against the order dated 03.12.2012 passed by Sri S. K. Dubey, the Judicial Magistrate, Dhanbad, in connection with Chirkunda (Galfarbari) P.S. Case No. 259 of 2012 corresponding to G.R. Case No. 4320 of 2012 whereby the petition filed by the petitioner for declaring him Juvenile after examining him by the Medical Board and determining his age by the said Board, has been rejected.

The Court below allowed his application partly on 10.11.2012 and accordingly the Medical Board was constituted by Civil Surgeon to examine the petitioner. The said board examining him on 22.11.2012 and submitted the report. The said report dated 22.11.2012 shows the age of the petitioner was found as 19 years. The Court below after considering the said report, rejected the plea of being juvenile of the present petitioner (accused). Hence this revision.

The learned counsel of the petitioner has submitted that the Medical Board constituted by the Civil Surgeon, after examining the petitioner, has found his age as 19 years. Therefore, on 22.11.2012 the petitioner was 19 years according the aforesaid report. Admittedly, the alleged date of occurrence is 31.10.2012 and the Medical Board has assessed the age of the petitioner as 19 on 22.11.2012 (the date of the examination). The counsel for the petitioner has contended that according to the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003, provides sub-rule (5) of Rule 22 also lays down the procedure to be followed by a Board in holding inquiries and the determination of age which reads as follows:---

In every case concerning a juvenile of child, the Board shall either obtain, (i) a birth certificate given by a corporation or Municipal Authority; (ii) a date of birth certificate from the School first attended; or (iii) Matriculation or equivalent Certificates, if available; and (iv) in the absence of (i) to (iii) above, medical opinion by a duly constituted medical Board subject to a margin of one year in deserving cases for the reasons to be recorded by such Medical Board, (regarding his age and, when passing orders in such case shall after taking into considerations such evidence as may be available or the medical opinion, as the case may record a finding in respect of his age

The counsel of the petitioner has further contended that if according to the aforesaid rule if the margin of one year is allowed, the age of the petitioner could be 18 years on 22.11.2012. Therefore, the petitioner is definitely is below 18 years on the alleged date of occurrence i.e. 10.11.2012. Therefore, the petitioner should be declared as Juvenile. To support his contention, he has cited the decision of the Hon''ble Apex Court in case of Rajinder Chandra Vs. State of Chhattisgarh and Another, and also a decision of this Court in case of Govind@Govind Turi Vs. The State of Jharkhand, .

The learned counsel appearing for the State has submitted that in the present case the father of the petitioner has admitted the date of birth of the petitioner as 19.9.1995 and the medical board has also assessed the petitioner''s age as 19 years.

Therefore, the petitioner cannot be declared as Juvenile.

From the impugned order, I find as the petitioner has not studied in any School and having no birth certificate, the Court below has referred the matter before the medical board for determining the age of the petitioner. The Civil Surgeon constituted a medical board and the said board examined the petitioner on 22.11.2012 and submitted his report showing the petitioner age as 19 years. Considering this fact and also considering the rule as stated above, if the lower side of the age of the petitioner is taken, it would be 18 years in 22.11.2012 and as the alleged date of occurrence is 10.11.2012 only few days earlier definitely there is some doubt whether the petitioner has completed his 18 years of age on 10.11.2012 or 22.11.2012. Though it is very marginal case and the difference of few days only but there is some doubt therefore, the benefit of doubt, should go in favour of the accused petitioner.

The aforesaid decision cited by the petitioner has also held that in the matter of determination of the age of the accused for the purpose of finding out whether he is juvenile or not, any hyper technical approach should not be adopted.

Considering the all these aspect, I declare the petitioner as Juvenile and set aside the impugned order dated 03.12.12 passed by Sri S.K. Duybey, Judicial Magistrate, Dhanbad, in connection with Chirkunda (Galfarbari) P.S. Case No. 259 of 2012 corresponding to GR. Case No. 4320 of 2012. The case is remitted back to the Court below for passing an appropriate order for referring the case of the petitioner to the Juvenile Justice Board. Accordingly, this revision application is allowed.