Patna High Court - Orders
Raghav Kumar @ Ritesh Kumar vs The State Of Bihar on 23 January, 2024
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.28397 of 2023
Arising Out of PS. Case No.-126 Year-2021 Thana- LAHERIMUHALLA District- Nalanda
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RAGHAV KUMAR @ RITESH KUMAR SON OF UDAY PASWAN R/O
KOSUK, P.S. - DEEP NAGAR, DISTRICT - NALANDA
... ... Petitioner/s
Versus
THE STATE OF BIHAR
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Saroj Kumar Choudhary, Advocate
For the Opposite Party/s : Ms. Anita Kumari, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 23-01-20241. Heard learned counsel for the petitioner, learned A.P.P. for the State and learned counsel for the informant.
2. Learned counsel for the petitioner, at the outset, submits that petitioner has been falsely implicated in the present case by the informant who is father of Vijeta Bharti (the alleged victim). It is further submitted that the victim and the petitioner were in love and they eloped and thereafter performed marriage and the victim thereafter conceived and gave birth to a child. It is next submitted that after the case was instituted the victim came back and her statement was recorded under Section 164 Cr.P.C. wherein she has not even remotely supported the case of the prosecution rather has stated that she is 18 years of age and was in love with the petitioner and on her own sweet will and volition performed her marriage with the petitioner. It is also submitted that the victim does not intend to accompany the Patna High Court CR. MISC. No.28397 of 2023(2) dt.23-01-2024 2/7 informant i.e. she does not want to go back to her parental home as such she has been sent to the remand home.
3. It is further submitted that during the course of investigation a school transfer certificate was produced by the informant in pursuance where of the age of the victim was assessed as 13 years and odd. It is next submitted that even the learned Magistrate assessed the victim to be 15 years of age. It is also submitted that the victim in her statement recorded under Section 164 Cr.P.C. has disclosed her age voluntarily as 18 years and school transfer certificate is not a document to be relied upon for the purposes of ascertaining the age.
4. Learned counsel for the petitioner next relies on a judgment of the Hon'ble Supreme Court in Cr. Appeal No(S). 1898 of 2023 (P. Yuvaprakash Vs. State represented by Inspector of Police) and submits that the Hon'ble Supreme Court in the said case allowed the appeal and also held that the school transfer certificate could not have been relied upon to hold that the victim was below 18 years of age.
5. Learned counsel for the petitioner further draws the attention of the Court to Section 34 of the POCSO Act which reads thus:-
"Procedure in case of commission of offence by child and determination of age by Special Court.-- Patna High Court CR. MISC. No.28397 of 2023(2) dt.23-01-2024 3/7 (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person."
6. It is submitted that in view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable and thereafter draws the attention of the Court to Section 94 of the JJ Act, 2015 which reads as under:-
"Presumption and determination of age.- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such Patna High Court CR. MISC. No.28397 of 2023(2) dt.23-01-2024 4/7 observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
Patna High Court CR. MISC. No.28397 of 2023(2) dt.23-01-2024 5/7 (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
7. Learned counsel relying on the aforesaid judgment of the Hon'ble Supreme Court in the case of P. Yuvaprakash (supra) submits that from conjoint reading of the above provision it is event that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:
"(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:"
Patna High Court CR. MISC. No.28397 of 2023(2) dt.23-01-2024 6/7
8. Learned counsel thus submits that Section 94(2)
(iii) of the JJ Act clearly indicates that how the age of the victim is to be assessed i.e. (i) the date of birth certificate from the school, or the matriculation or equivalent certificate by the concerned examination Board in absence of the same; (ii) the birth certificate issued by the corporation or the municipal authority or the panchayat; and it is only thereafter in absence of these documents the age is to be determined through (iii) an ossification test or any other latest medical age determination test, conducted on the orders of the concerned authority i.e. the committee or Board or Court.
9. Learned counsel, thus, submits that in the present case none of the aforesaid documents were present nor ossification test of the victim was conducted rather reliance was placed on a transfer certificate issued by the school and, thus, the same could not have been relied upon to hold that the victim was below 18 years of age, moreso, when the victim herself disclosed her age as 18 years.
10. At this stage, learned counsel for the petitioner seeks permission to add the informant as opposite party no. 2 in course of the day.
11. Permission is accorded.
Patna High Court CR. MISC. No.28397 of 2023(2) dt.23-01-2024 7/7
12. At this stage, learned Advocate Mr. Ravi Bhushan Prasad appears and submits that he is appearing on behalf of the informant i.e. opposite party no. 2 and fairly submits that the victim is presently in the remand home and has not accompanied her parents for her parental home.
13. Learned counsel further seeks four weeks' time for filing a counter affidavit.
14. Put up this case on 18.03.2024.
15. In the meantime, further proceeding before the learned trial court with respect to the petitioner shall remain stayed.
(Satyavrat Verma, J) Kundan/-
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