High Court Patna High Court - Orders

Rajesh Yadav vs State Of Bihar & Anr on 11 July, 2011

Patna High Court – Orders
Rajesh Yadav vs State Of Bihar & Anr on 11 July, 2011
                  IN THE HIGH COURT OF JUDICATURE AT PATNA

                          CRIMINAL REVISION No.1029 of 2009

RAJESH YADAV , S/o - Mahendra Yadav, resident of village - Chakkadih, P.S - Banka, District
- Banka.
                                                                           --------- Petitioner.
                                        Versus
The State of Bihar                                                  --------- Opposite Party.
                                         *******

Appearance :

For the Petitioner/s: Mr. Ajay Mukherjee, Adv.

For the State : Mr. G.P. Jaiswal, APP
*******

2 11-07-2011 Learned counsel for the petitioner seeks permission

to delete the Opposite Party no. 2 from the array of the party.

Prayer is allowed.

The accused petitioner has preferred this criminal

revision petition against the order dated Ist June 2009 passed

by the learned Additional Sessions Judge, F.T.C. II, Banka in

Sessions Trial no. 975 of 2007 by which his petition dated 19th

May 2009 filed by the petitioner to declare him a juvenile

and to separate the trial has been rejected.

Heard Mr. Ajay Mukherjee the learned counsel for

the petitioner and learned counsel for the State Sri G.P.

Jaiswal, A.P.P.

The learned counsel for the petitioner submits that

the petitioner was facing trial in the aforesaid Sessions Trial

no. 975 of 2007 arising out of Banka P.S. Case no. 341 of

2006. G.R. no. 1329 of 2006 and the petition dt. 19th May

2009 was filed on behalf of the petitioner for separating the

trial and the petitioner may be declared juvenile. The prayer of
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the petitioner has been rejected by the impugned order passed

by the learned Additional Sessions Judge on the ground that

the plea of juvenile was rejected by the learned Chief Judicial

Magistrate on 21st July 2007 and also by the Additional

Sessions Judge vide order dated 18th July 2008 and also on the

ground and under examination u/s 313 Cr. P.C. the petitioner

has stated his age about 25 years and his facial appearance also

shows that the petitioner is not a juvenile. He has further

submitted that never full-fledged inquiry was made to consider

as to whether the petitioner was a juvenile at the time of

occurrence. He has submitted that the date of the birth of the

petitioner is 15th June 1993 and the date of occurrence is 6th

November 2006. He has further submitted that the petitioner

is also an accused in Case no. 417/2008. In Sessions Trial no.

786/2007 also the learned Additional Sessions Judge, F.T.C.-

III, vide order dated 27th May, 2009 has declared the petitioner

as a juvenile. He has also submitted that in view of the

provision contained in Section 7A of the Juvenile Justice (Care

and Protection of Children) Act, 2000 the Claim of juvenility

can be raised before any Court. The opinion whether accused

person was a juvenile on the date of commission for the

offence, the Court shall make an inquiry, take such evidence as

may be necessary.

“So as to determine the age of such person, and shall

record the finding whether the person is juvenile or a child or

not stating his age as nearly as may be.”

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He has further submitted for holding an inquiry

regarding the determination of age there is procedure for the

determination of age under the provisions contained in Rule

22. The procedure to be followed by a Board in holding

inquiry and the determination of age is contemplated under

Sub-rule-5, Rule-22 of the Bihar Juvenile Justice (Care and

Protection of Children) Rules 2003. It has been mentioned in

Rule 22 (5) that in every case concerning a juvenile or a child

the Court shall either obtain. (i) a birth certificate given by a

Corporation or a Municipal Authority; (ii) a date of birth

certificate from the school first attended or, (iii) matriculation

or equivalent certificate if available; and (iv) in the absence

(i) to (iii) above, the medical opinion may be obtained 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

order 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.

It is further submitted that the aforesaid procedure

have not been followed in determining the age of the petitioner

by the learned Court below as it appears from the impugned

order.

The learned counsel for the State could not

controvert the contention of the learned counsel for the

petitioner while opposing the prayer of the petitioner.
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After hearing the learned counsel for both the parties

and on perusal of the impugned order, it appears that the

contention of the learned counsel for the petitioner is correct.

The learned trial Court has not taken into consideration the

aforesaid procedures for the determination of the age of the

petitioner. In this view of the matter, in my opinion, the

impugned order is not fit to be sustained and is liable to be set

aside. It is set aside. The matter for the determination of the

age is remanded back to the learned Additional Sessions

Judge, FTC-II, Banka in view of the provision contained in

Section 7A of the aforesaid Act and the Rule 22 of the Bihar

Juvenile Justice (Care and Protection of Children) Rules, 2003

and will proceed with the case in accordance with law.

In the result, this petition is allowed.

Kamlesh                              (Amaresh Kumar Lal, J.)