IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.207 of 2011
Rajesh Mishra son of Baliram Mishra,
resident of village- Hasanpur, P. S. Kotwa,
Distt.- Motihari.
... Petitioner.
Versus
1. The State Of Bihar
2. Smt. Paspati Devi w/o Harish Chandra
Prasad Yadav, resident of village Konhwa,
P. S. Kotwa, District- East Champaran.
.... Opposite parties.
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3. 09.08.2011 The accused-petitioner has preferred
this revision application against the order
dated 11.1.2011 passed by learned Sessions
Judge, East Champaran, Motihari in Cr. Revision
No. 192 of 2010 by which the order dated 15th
June 2010 passed by learned Juvenile Justice
Board, Motihari in Case No. 560 of 2010 arising
out of Kotwa P. S. Case No. 12 of 2010 under
Section 302/34 I.P.C., has been set aside.
The informant lodged an FIR on
1.2.2010 stating therein that on 30.01.2010,
her son Manoj Kumar had gone to play Cricket
and during the game scuffle took place between
the petitioner and Manoj. In the meantime, one
Dukhi Singh along with Surendra Mishra went
there and enquired about the scuffle, hearing
the reason Dukhi Singh caught hold Manoj and
the petitioner assaulted Manoj on his head.
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Manoj was taken to the hospital but he
succumbed to injuries. After investigation
charge-sheet was submitted against the
petitioner under Section 302 I.P.C.. During
trial a petition was filed before Juvenile
Justice Board to declare the petitioner as
Juvenile. After holding enquiry, the Juvenile
Justice Board declared the petitioner as
Juvenile. The informant filed Cr. Revision No.
192 of 2010 in the Court of learned Sessions
Judge. After hearing learned counsel for the
parties, he has been pleased to set aside the
order dated 15.6.2010 passed by learned
Juvenile Justice Board and the Juvenile Justice
Board has been directed to pass a fresh order
with respect to juvenility of the accused-
petitioner after giving an opportunity to the
informant/prosecution to lead evidence.
Learned counsel for the petitioner
has submitted that admittedly the date of
occurrence is 30.1.2010. According to first
attended original admission register of the
school and the school leaving certificate, the
date of birth of the petitioner is 5.1.1995.
The informant/opposite party no. 2 has filed
objection on 18.5.2010 to the petition filed by
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the petitioner for declaration of his
juvenility. The informant-opposite party no.2
has disputed the age of the petitioner and
sought time to produce her evidence in support
of her contention, but in spite of several
adjournments, no oral or documentary evidence
was adduced or produced. After enquiry the
petitioner was declared a juvenile under the
provision laid down in the Juvenile Justice
(Care and Protection of Children ) Act, 2000
and Rules.
He has further submitted that it appears from the impugned order itself that
accused petitioner in his petition has taken a
plea that on the date of occurrence he was
below 18 years of age. His date of birth is
5.1.1995 and as such on the date of occurrence
he was 15 years of age. Accoding to the
informant, the date of birth of accused-
petitioner is 25.10.1992 in the school
admission register of Hasanpur Primary School
and the Juvenile Justice Board did not take
pain to get the accused examined by Medical
Board.
He has also contended that admittedly
the occurrence is 30.1.2010. Even if the date
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of birth given by the informant as 25.10.1992
is taken to be true, even then the petitioner
is a juvenile. He has further submitted that
the report of the medical board is not at all
required in view of the provisions made in the
Juvenile Justice (Care and Protection of
Children) Rules, 2007.
Learned counsel for opposite party
no. 2 has submitted that the impugned order has
been passed after hearing both the parties and
it does not require any interference, but he
could not controvert the contention of the
petitioner that even if according to the
informant the date of birth of the petitioner
is 25.10.1992, even then the petitioner is a
juvenile.
After hearing learned counsel for
both the parties and on perusal of the material
on record it appears that date of occurrence is
30.1.2010. The date of birth of the petitioner
according to school certificate is 5.1.1995.
According to the informant, the date of birth
of the petitioner mentioned in the admission
register of Hasanpur Primary School is
25.10.1992. In that view of the matter also, on
the date of occurrence the age of the
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petitioner is below 18 years. According to Rule
12(3) (a) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007, the date
of birth mentioned in the matriculation or
equivalent certificate or the date of birth
certificate from the school first attended, and
in absence thereof the birth certificate given
by a corporation or a municipal authority or a
panchayat has to be accepted and in absence of
all the three, the medical opinion will be
sought from a duly constituted medical board.
More or less the same provision is under Rule
22 of Bihar Juvenile Justice (Care and
Protection of Children) Rules, 2003.
Accordingly to Rule 22(5) of Bihar Juvenile
Justice (Care and Protection of Children)
Rules, 2003, the medical opinion regarding the
age will be taken only in absence of; (i) a
birth certificate given by a corporation or a
municipal authority; or (ii) a date of birth
certificate from the school first attended; or
(iii) matriculation or equivalent certificate,
if available. It appears from the order dated
15.6.2010 passed by learned Juvenile Justice
Board that informant had filed objection dated
18.5.2010 regarding the age of the accused but
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even after having being given sufficient time,
no document was filed on behalf of the
informant. After considering the materials on
record, learned Juvenile Justice Board has held
that the age of the petitioner was less than 18
years on the date of occurrence and as such he
was declared a juvenile.
Considering the facts and
circumstances stated above, in my opinion, the
impugned order passed by learned Sessions
Judge, East Champaran Motihari is not fit to be
sustained. The impugned order is set aside.
The order dated 15.6.2010 passed by learned
Juvenile Justice Board, Motihari, is restored.
In the result, this revision
application is allowed.
Kanchan (Amaresh Kumar Lal, J.)