Calcutta High Court (Appellete Side)
Madhab Das vs The State Of West Bengal & Ors on 28 August, 2015
Author: Ranjit Kumar Bag
Bench: Ranjit Kumar Bag
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Ranjit Kumar Bag
C.R.R. No.241 of 2015
With
C.R.R. No.3938 of 2014
Madhab Das.
Versus
The State of West Bengal & Ors.
For the appellant: Mr. Dwaipayan Banerjee,
Ms. Priyanka Ganguly,
For the respondent: Mr. Amarta Ghose
Heard on: 28th August, 2015 Judgment on: 28th August, 2015 Ranjit Kumar Bag, J.:-
1. The petitioner has preferred the revisional application being CRR No.241 of 2015 challenging the order dated January 3, 2015 passed by learned Chief Judicial Magistrate, Uttar Dinajpur at Raiganj in G.R. No.812 of 2013 arising out of Raiganj Police Station Case No.391 of 2013 dated May 8, 2013, by which learned Magistrate accepted the decision of Juvenile Justice Board about the plea of juvenility of the petitioner and committed the case to the court of sessions. The petitioner has also preferred revision being CRR No.3938 of 2014 challenging the order dated November 21, 2014 passed by the Juvenile Justice Board, Raiganj, Uttar Dinajpur, in connection with Case No.JJB 39 of 2013 arising out of Raiganj Police Station Case No.391 of 2013 dated May 8, 2013, by which the Board decided that the petitioner was an adult at the time of commission of the offence by holding the date of birth on April 5, 1992. Both the revisional applications are taken up together for hearing as the common question of plea of juvenility of the petitioner is involved in both the revisions and as such both the revisions are disposed of by this common judgment.
2. It appears from record that the petitioner is facing trial in connection with Raiganj Police Station Case No.391 of 2013 dated May 8, 2013 on the allegation of committing offence under Section 493 and Section 376 of the Indian Penal Code. It also appears from record that the petitioner raised the plea of juvenility before the Juvenile Justice Board and the said plea was not accepted by the Juvenile Justice Board on November 21, 2014. The petitioner again raised the plea of juvenility before the court of learned Chief Judicial Magistrate, Raiganj on January 3, 2015 but learned Magistrate held that the plea of juvenility of the petitioner was already decided by the Juvenile Justice Board and the said decision of the Board was treated as final by learned Chief Judicial Magistrate, Raiganj, Uttar Dinajpur.
3. Mr. Dwaipayan Banerjee, learned counsel appearing on behalf of the petitioner contends that the Juvenile Justice Board has not considered the school leaving certificate (Annexure P-6 to the revisional application being CRR No.241 of 2015) on the ground that the said school leaving certificate is issued by the school where the petitioner attended subsequent to his admission to North Rupahar Free Primary School where the petitioner got admission on February 3, 1997. Learned counsel further submits that the school leaving certificate of Kalitala Mubarakpur Primary School is genuine as the date of birth of the petitioner which was recorded in the said school leaving certificate was also reflected in the certificate of birth issued by the Gram Panchayat on July 20, 1998. Learned counsel also submits that learned Magistrate of the Juvenile Justice Board did not ascertain the genuineness of the documents before mechanically relying on the certificate of North Rupahar Free Primary School on the ground that the petitioner was first admitted in the said school on February 3, 1997, which has caused prejudice to the petitioner and the substantive right of the petitioner is curtained thereby.
4. Mr. Amarta Ghose, learned counsel for the opposite party State submits that learned Magistrate of the Juvenile Justice Board not only relied on the certificate issued by North Rupahar Free Primary School as the petitioner was first admitted in the school, but also the genuineness of the said document was ascertained by an enquiry conducted by the Special Juvenile Police Unit and as such, he defends the order passed by the Juvenile Justice Board. According to Mr. Ghose, it is the duty of the Juvenile Justice Board to rely on the certificate issued by the school in which the petitioner was first admitted as laid down in Rule 12(3)(ii) of the Juvenile Justice (Care and Protection of Children) Rules, 2007.
5. It is the duty of the court to decide the plea of juvenility of the petitioner whenever the petitioner will raise the plea of juvenility before any court as laid down in Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000. The procedure to be followed by learned court or the Juvenile Justice Board for deciding the age of the person raising the plea of juvenility is laid down in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The documents to be considered by the court or by the Juvenile Justice Board and the precedence to be given to those documents are laid down in Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which are as follows:-
12(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
And, while 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 and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."
6. On perusal of the provision of Sub-Rule (3) of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, it is crystal clear that the Juvenile Justice Board will accept the date of birth given in the certificate issued by the school where the petitioner first attended and only in the absence of such certificate, the Juvenile Justice Board can consider the birth certificate issued by the Corporation or the Municipality or the Panchayat. In the instant case, learned Magistrate relied on the certificate issued by the North Rupahar Free Primary School in favour of the petitioner on May 22, 2014 on the ground that the petitioner was admitted in the said school on February 3, 1997 whereas, the duplicate school leaving certificate issued on December 28, 2014 by the Kalitala Mubarak Primary School indicates that the petitioner was admitted in the said school on May 16, 2003. However, the date of birth recorded in the said duplicate school leaving certificate of Kalitala Mubarak Primary School matches with the date of birth issued by Birghai Gram Panchayat on July 20, 1998. Before relying on the school certificate of the petitioner issued by the school where he first attended, it is necessary to ascertain the genuineness of the duplicate school leaving certificate of the petitioner particularly when the date of birth reflected in the said school leaving certificate matches with the date of birth reflected in the certificate of birth issued by the Panchayat long back on July 20, 1998. The Board is duty bound to conduct the enquiry to ascertain the date of birth of the petitioner without relying on the report of enquiry submitted by the Special Juvenile Police Unit. The Board can call for the counter-foil of the duplicate school leaving certificate and admission register of Kalitala Mubarak Primary School and also the document on the basis of which the date of birth of the petitioner was recorded in the admission register of the said school, so that the genuineness of the date of birth of the petitioner entered in the admission register of the said school can be ascertained. The Board can also call for the register of issuing birth certificate from Birghai Gram Panchayat to ascertain whether the birth certificate of the petitioner reflecting the date of birth as July 30, 1997 was really issued on July 20, 1998. Similarly, the admission register of the North Rupahar Free Primary School containing the entries of admission of the petitioner in the said school and the document on the basis of which the date of birth of the petitioner was recorded in the admission register of the said school can be ascertained by calling for the original register and document from the Head of the Institution.
7. It is the duty of the Juvenile Justice Board not only to call for the original documents from the Institution concerned, but also to record the evidence of the Head of the Institution to ascertain the genuineness of the document and thereafter learned Magistrate can rely on the genuine certificate of the school where the petitioner first attended as per Rule 12(3)(ii) of the Juvenile Justice (Care and Protection of Children) Act, 2007. Since this enquiry was not conducted by the Juvenile Justice Board to ascertain the genuineness of all the documents produced before him, I am inclined to set aside the order passed by the Juvenile Justice Board and order passed by learned Chief Judicial Magistrate, Raiganj.
8. In view of my above findings, the order dated November 21, 2014 passed by the Juvenile Justice Board, Raiganj in connection with JJB No.39 of 2013 and order dated January 3, 2015 passed by the learned Chief Judicial Magistrate, Raiganj in G.R. No.812 of 2013 are set aside. The Juvenile Justice Board is directed to conduct the enquiry afresh to decide the plea of juvenility of the petitioner within a period of six weeks from the date of communication of the order.
Both the criminal revisional applications are, thus, disposed of. Let a copy of the order be sent down to the learned court below for favour of information and necessary action.
Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(Ranjit Kumar Bag, J.)