JUDGMENT
S.K. Agarwal, J.
1. Heard learned counsel for the applicant and learned A.G.A.
2. This bail application was pressed only on the ground of age. On 29.5.2003 it was directed by this Court that the Sessions Judge, Baghpat may put the applicant to radiological test for the determination of his age. The report is dated 28.6.2003, which was received on 4.7.2003 in this Court but since I was sitting in Division Bench, therefore, it was not possible to hear the bail application expeditiously. The report shows that from the medical examination (radiological test) the approximate age of the applicant was determined to be 19-1/2 years by the Chief Medical Officer, Meerut. However, the report further indicates that the applicant had disclosed his age to the Doctor as about 17 years for the present. A school leaving certificate of Intermediate College, Saroorpur Khedki, district Meerut, was also filed in support of his contention by the applicant as Annexure ‘4’ to this bail application wherein his date of birth is shown as 6.3.1986. Before that the applicant had also studied in another school, viz. Shivganj Kishan Madhyamik School, Saroorpur Kalan. In the character certificate also the Principal of the Intermediate College, Saroorpur, indicates the same date of birth. It is now accepted in law that the school-leaving certificate is to be given precedence over the medical report. There is always a possibility of variation of two years either way on various grounds in the medical estimation.
3. So far as the Code of Criminal Procedure is concerned, the applicant had exceeded the minimum permissible limit of age (16 years) for consideration of bail on this ground. However, the applicant has been seeking benefit of the Juvenile Justice (Care and Protection of Child) Act, 2000 wherein the age was raised to 18 years from the previous Act of 1986, which had prescribed the age, i.e. 16 years in the case of male child and 18 years in the case of a female child. In; the present Act the age has been made uniform.
4. In the State of U.P., as yet, no Juvenile Board, as required under; the provisions of Section 4 of the Act, has been constituted. The Courts are in a quandary because there is no provision in this enactment permitting the courts to determine the age of a juvenile. In the absence of constitution of a Board this Court has no option but to permit the trial court, where the trial of this applicant is pending, to determine the same. In the enquiry, the board has to adhere the procedure laid down in the Code of Criminal Procedure, 1973 if no procedure is prescribed. In the repealed Act the power was vested in Juvenile Court, which was especially appointed under the provisions of that Act. That provision has been done away with now. The trials of such juvenile are in jeopardy for non-constitution of the said Board.
5. In view of these facts and circumstances, I direct the applicant to apply before the trial court which will determine the proper age of the applicant after taking the evidence as prescribed by Section 33 of this enactment for the Board and if the applicant is found to be a juvenile in conflict with law after examining the relevant evidence, appropriate orders be passed by the said court on the application.
6. The Government of U.P. is hereby directed to expedite constitution of the Boards as provided under the law. The Boards may be district level Boards or a Juvenile Justice Board for group of districts. Nearly four years are going to elapse but the State is dilly dallying the constitution of such Boards for no rhyme or reason. If the Government does not find it suitable to constitute the Boards for the reasons which it may elaborate, it may recommend for some amendment in the provision empowering the concerned courts where the trials are sent up of such juveniles along with offenders who have attained majority to determine the age of such juveniles in conflict with law once the question is raised about their juvenility before them in accordance with the provision of Section 33 of the Act. The power to remove difficulties is vested with the Central Government, as provided by Section 70 of the Act.
7. With the above direction, this application is disposed of finally.
8. A copy of this order be sent forthwith to the Chief Secretary of the State for taking necessary steps as per direction made above.