1 WP :1642.2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1642 OF 2010
Jagdish @ Sagar Hari Choudhary ... Petitioner
Vs.
State of Maharashtra
ig ... Respondent
Mr. Vijay Hiremath i/by Ms. Rebecca Gonsalvez for petitioner.
P.S. Hingorani, APP for respondent-State.
Coram : A.M. Khanwilkar, &
P.D. Kode, JJ
Date : 2nd September 2011
PC :
1. By consent, taken up for hearing forthwith.
2. This petition filed under Article 226 of Constitution of
India seeks to challenge the order passed by the 1st Ad-hoc
Additional Sessions Court, Greater Mumbai, at Mumbai dated 4th
April 2009 in Miscellaneous Application No.58 of 2009 in Sessions
Case No.91 of 1998. The petition is also seeking directions
against the Sessions Court to reconsider the petitioner’s claim of
::: Downloaded on – 09/06/2013 17:41:26 :::
2 WP :1642.2010
juvenility based on school leaving certificate, which is annexed as
Exhibit “E” to this petition.
3. It is not in dispute that the petitioner had filed formal
application before the Sessions Court to extend him the benefit
of the provisions of Juvenile Justice (Care and Protection of
Children) Act 2000. That application has been rejected by the
Sessions Court vide impugned judgment and order dated 4th
April 2009. In the said order, it is clearly mentioned that the
petitioner had not filed any document to indicate his birth date.
The Sessions Court then proceeded to refer to the documents,
which were already on record at the time of trial of the criminal
case against the petitioner. The record included ossification test,
dated 19th August 1997, which mentioned the age of the
petitioner as between 21 to 22 years on the date of examination.
In that view of the matter, the Sessions Court proceeded to hold
that the petitioner was not below the age of 18 years, on the
date of offence. For which reason, the relief claimed in the
application was devoid of merits.
::: Downloaded on – 09/06/2013 17:41:26 :::
3 WP :1642.2010
4. In this petition, the petitioner has now relied on birth
certificate Exhibit “E” issued by Prathamik Vidyalaya, Shahapur.
The petitioner claims that the said school is government school
and therefore, the birth date mentioned in the said certificate
ought to prevail in the light of express provision in Rules 12(3)
(a) of the Juvenile Justice (Care and Protection of Children)
Rules 2007. It is further submitted that assuming that the said
certificate were to be discarded, even then, the Sessions Court
committed manifest error in proceeding to answer the matter in
issue on the basis of ossification test report dated 19th August
1997. In that event, the Court was obliged to seek medical
opinion of the duly constituted medical board, which is
competent to declare the age of juvenile or child, by virtue of
Rule 12(3)(b) of the Rules of 2007.
5. As aforesaid, the Sessions Court while disposing the
application filed by the petitioner has proceeded on the basis of
the documents, which were part of record in Sessions Case No.91
of 1998 i.e. ossification test report dated 19th August 1997 given
by the Police Surgeon. No fault can be found with the approach
::: Downloaded on – 09/06/2013 17:41:26 :::
4 WP :1642.2010
of the Sessions Court, if the applicant had failed to produce any
document in support of his date of birth, but in that situation,
the Court was obliged to proceed in the matter, as per the
procedure prescribed under Rule 12(3)(b). That procedure
admittedly has not been followed in the present case.
6.
The mandate of Rule 12 is that in such a situation the
Court has to seek medical opinion of duly constituted medical
board, which can assess the age of the juvenile or child. In the
circumstances, without examining the other issues raised by the
petitioner, in the present petition, we are inclined to set aside
the impugned order passed by the Sessions Court and instead
restore the Miscellaneous Application No.58 of 2009 to its’
original number on the file of the Sessions Court for being
decided afresh on its own merits, in accordance with law.
7. Needless to observe that the Sessions Court would give
one more opportunity to the petitioner/applicant before it to
produce the birth certificate Exhibit “E” to this petition and
after due enquiry, if it is convinced about the genuineness and
authenticity thereof may proceed to pronounce on the basis of
::: Downloaded on – 09/06/2013 17:41:26 :::
5 WP :1642.2010
that certificate. However, if the birth certificate produced by the
petitioner is unacceptable for some tangible reason, it would be
open to the court to then take recourse to the procedure under
Rule 12(3)(b) of the Rules of 2007 by seeking opinion of the duly
constituted medical board, which will declare the age of the
petitioner. On receipt of such report, it will be open to the
Court to proceed with the matter by giving an opportunity to
the petitioner as well as the prosecution and pass final order as
may be advised. This, however, be done expeditiously. It will be
open to the Court to consider whether personal production of
the petitioner is necessary before the Court for answering the
matter in issue. All questions are left open.
8. In view of the above, R. and P. be returned to the Sessions
Court forthwith.
9. The petition succeeds on the above terms. Nothing
survives in the companion application and the same is also
disposed off.
(P.D. Kode, J.) ( A.M. Khanwilkar, J.)
::: Downloaded on - 09/06/2013 17:41:26 :::
