Patna High Court - Orders
Rakesh Yadav vs The State Of Bihar on 31 August, 2012
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
Patna High Court CR. APP (DB) No.721 of 2011 (10) dt.31-08-2012 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.721 of 2011
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1. Rakesh Yadav S/O Sachidanand Yadav @ Sachida Resident Of Village-
Brindawan P.S.& District- Lakhisarai
.... .... Appellant/s
Versus
1. The State Of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Bhola Prasad, Advocate
Mr. Mukesh Kumar Jha, Advocate
For the State : Mr. A. K. Sinha, APP
For the Informant : Mr. Abhay Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE
SHARMA
and
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA)
10 31-08-2012I. A. No. 1986 of 2011 Heard learned counsel for the appellant, learned APP and the learned counsel representing the informant.
Report of the Juvenile Justice Board, Lakhisarai (hereinafter referred to as the Board) regarding the juvenility of the appellant has been received in this case.
Learned counsel for the appellant submitted that the appellant has been held to be juvenile below the age of 18 years on the date of occurrence, and as such he should be granted benefit of being juvenile.
During trial, plea of juvenility was not raised. Patna High Court CR. APP (DB) No.721 of 2011 (10) dt.31-08-2012 2 Subsequently through the instant interlocutory application, being I. A. No. 1986 of 2011 the appellant claimed to be a juvenile under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. In support of the plea, he produced the original certificate of matriculation issued by the Bihar School Examination Board. The certificate bears no. 94C0287625 and his Roll code was shown as 10031 and Serial No. 0215. In that certificate, the date of birth of the appellant was indicated as 3rd May, 1977. The occurrence of the present case is of 7.6.1994 and on the basis of that certificate he claims himself to be a juvenile.
This court on 29.9.2011 opined that the occurrence was of 7.6.1994 and the matriculation certificate came into existence thereafter, so others circumstances were also considered. The narration of the age given by the accused under section 313 Cr.P.C. was considered when his statement was recorded on 10.7.2003, then the appellant claims himself to be of 29 years of age. The star contrast between the narration of the appellant showing himself to be major and the production of a certificate subsequently, was found to be suspicious. Thereafter, this Court ordered the Board to hold an inquiry. On 19.4.2012 the interim report sent by the Board was considered and interim report of the Board mentioned that the authenticity of the certificate was Patna High Court CR. APP (DB) No.721 of 2011 (10) dt.31-08-2012 3 doubtful. In that view of the matter this Court directed the Board to take steps to secure full report from the Bihar School Examination Board. The Bihar School Examination Board has opined in his report that the matriculation certificate produced by the appellant is forged one but the Board relying upon the report of the Medical Board, declared the appellant to be a juvenile on the date of occurrence and his age was assessed to be 17 years 1 month and 3 days on the date of occurrence.
Learned counsel for the appellant submitted that even if the matriculation certificate was found to be forged, then also the finding of the Board has to be accepted and so the appellant has to be declared juvenile. It has been submitted that for production of matriculation certificate which was claimed to be forged the appellant was not at fault.
The procedure for ascertaining the age, it is mentioned in sub-Rule 5 of Rule 22 of the Bihar Juvenile Justice (Care and Protection of Children) Rules 2003 which is produced hereinbelow:
"22. Procedure to be followed by a Board in holding inquiries and the determination of age.- (1) In all cases under the Act the proceedings shall be conducted in as simple a manner as possible and care shall be taken to Patna High Court CR. APP (DB) No.721 of 2011 (10) dt.31-08-2012 4 ensure that the juvenile or child against whom the proceedings have been instituted is given home-like atmosphere during the proceedings.
(2) When witnesses are produced for examination, the Board shall be free to use the power under section 165 of the Indian Evidence Act, 1872 (1 of 1872), to question them so as to bring out any point that may go in favour of the juvenile or the child. (3) While examining a juvenile or child and recording his statement, the competent authority shall be free to address the juvenile or child in any manner that may seem suitable, in order to put the juvenile or child at ease and to elicit the true facts, not only in respect of the offence of which the juvenile or child is accused, but also in respect of the home and social surroundings and the influence to which the juvenile or child might have been subjected.
(4) The record of the examination shall be in such form as the Board may consider suitable having regard to the contents of the statement and circumstances in which it was made. (5) In every case concerning a juvenile or a child, the Board shall either obtain-
(i) a birth certificate given by a corporation or a municipal authority; or Patna High Court CR. APP (DB) No.721 of 2011 (10) dt.31-08-2012 5
(ii) a date of birth certificate from the school first attended; or
(iii) matriculation or equivalent certificate, if available; and
(iv) in the absence of (i) to (iii) the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving case for the reasons to be recorded by such Medical Board regarding his age; and, when passing orders 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. (6). The State Government shall recognize registered voluntary organizations, to supervise and submit periodical reports, as directed by the Board regarding the orders passed under clauses (b) and (c) of sub- section (1) of section 15 of the Act. (7). In accordance with the rules made under sub-section (2) of section 10 of the Act, the Board shall, in Form I, order a Probation Officer, or otherwise to conduct a social investigation reporting on the character and antecedents of the juvenile or child with a view to assessing the best possible mode for placement, such as, with the family, an institution or otherwise permissible under the Act.Patna High Court CR. APP (DB) No.721 of 2011 (10) dt.31-08-2012 6
(8). When a juvenile or child is placed under the care of a parent or a guardian and the Board considers it expedient to place the juvenile or child under the supervision of a probation officer, it shall issue a supervision order in Form II.
(9). The competent authority may, while making an order placing a juvenile under the care of a parent, guardian or fit person, as the case may be, direct such parent, guardian or fit person to enter into a bond in Form IV with or without sureties.
(10). Whenever the Board orders a juvenile or child to be kept in an institution, it shall forward to the Officer-in-Charge of such institution a copy of its order, in Form II with particulars of the home and parents or guardian and previous record.
(11). The Juvenile or child shall be lodged in a home closest to where he belongs. (12). The Officer-in-charge of an institution, certified as special home under sub-section (2) of section 9 of the Act, shall be informed in advance by the Board before any juvenile or child is committed to it.
(13). The Officer-in-Charge of the said institution may, on receipt of the information, intimate in writing objections, if any, to the committal of the juvenile or child and the Patna High Court CR. APP (DB) No.721 of 2011 (10) dt.31-08-2012 7 objections shall be taken into consideration by the Board before the juvenile or child is committed to the said institution. (14). In case the Board orders the parent of the juvenile or child, or the juvenile or child to pay a fine and the amount realized shall be deposited in the Government treasury."
According to the Rule, a birth certificate given by the Corporation or by a Municipal Authority or a date of birth certificate from school first attended or the matriculation or other equivalent certificate has to be considered and if they were absent, then the opinion of the Medical Board were to be considered.
Case of the appellant was that he was in possession of matriculation certificate and, so the plea was taken but it was found forged, then another plea was taken and on his plea Medical Board was constituted.
Learned counsel for the appellant relied upon the judgment reported in 2012 (1) PLJR 353 in the case of Narendra Kumar Jha Vs. The State of Bihar wherein the procedure of holding juvenility has been considered. It has also been submitted that in case, the certificate was found to be ambiguous, then the medical opinion was required and this has been held in the judgment reported in 2012 (2) PLJR SC 405 in the case of Om Patna High Court CR. APP (DB) No.721 of 2011 (10) dt.31-08-2012 8 Prakash Vs. The State of Rajasthan and Anr.
The citations relied upon by the accused/appellant are that in case of absence of authentic proof either from the Municipal or from the school certificate, if the date of birth as claimed was found to be ambiguous, then assistance of Medical Opinion was to be considered. The plea taken by the appellant in the present case was not ambiguous or vague rather it was on completely false basis and accused was any how determined to get a report of the Board in his favour in which he has succeeded. The matriculation certificate was found to be forged and age given by the appellant under section 313 Cr.P.C. was indicating, then on the date of occurrence the accused was not a juvenile. Those were the conclusive proof to hold that the appellant was major on the date of occurrence. The opinion of the Board is contrary to the provision of the law and such pleadings could not be encouraged. A person playing fraud would not be allowed to celebrate and get benefit of forgery.
In view of the above discussions, we are of the view that the report of Juvenile Justice Board, Lakhisarai holding the appellant to be Juvenile on the date of occurrence is incorrect and not acceptable. The date of birth mentioned by the appellant in his statement under section 313 Cr.P.C. will prevail and that was the Patna High Court CR. APP (DB) No.721 of 2011 (10) dt.31-08-2012 9 first date which the appellant has given from his own version and this has to be accepted to be a correct date of birth of the appellant. In that view of the matter, we hold that the appellant was major on the date of occurrence.
Presently, the prayer for bail is not being pressed. Accordingly, I. A. No. 1986 of 2011 is disposed of.
(Shyam Kishore Sharma, J)
avin/- (Amaresh Kumar Lal, J)