Calcutta High Court (Appellete Side)
Ramesh Maity vs State Of West Bengal on 7 October, 2013
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J(1) In the High Court at Calcutta Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy CRR No. 2750 of 2013 Ramesh Maity Vs. State of West Bengal For the Petitioner : Mr. S. Das Mahapatra For the State : Mr. Amarta Ghosh Heard on:- 23.9.2013 Judgement on:- 7.10.2013 The present petitioner has been charge sheeted under section 376(2)(f) IPC and under section 4 of the Protection of Children from Sexual Offence Act, before the learned A.C.J.M., Haldia took a plea that at the time of the alleged occurrence he was below the age of 18 years, therefore, a juvenile and his case be placed before the concerned Juvenile Justice Board for necessary action in terms of Juvenile Justices (Care and Protection of Children) Act, 2006.
It appears on such plea the learned Magistrate called for a report from the investigating officer of the case as regards to the plea taken by the petitioner. When the investigating officer of the case obtained a certificate from the headmaster of the school where the petitioner took admission in class-I on May 4, 2011. In the said certificate the petitioner's date of birth was mentioned as March 23, 1996. At the same time the investigating officer of the case also seized the admission register of the school. However, in the admission register of the school, the column where the date of birth of the petitioner was noted was found to be interpolated and overwritten. Accordingly, the learned Magistrate refused to act thereupon and directed for his ossification test.
Aggrieved by such order for ossification test of the petitioner for the determination of his age, this criminal revision has now moved before me.
The learned counsel for the petitioner submitted that direction for ossification test is not in conformity with the mandates of rule laid down in Juvenile Justices (Care and Protection of Children) Act, 2006, therefore prayed that this order at once be quashed.
On the other hand, the learned counsel for the State produced the case diary and submitted that police has seized the original admission register of the school and invited my attention to the portion of the said admission register where the petitioner's date of birth has been noted and pointed out the same was overwritten and interpolated. I have carefully gone through the said noting and I find on the face of the same such noting was overwritten and date of birth noted therein was interpolated.
Be that as it may, the Rule 12 of Juvenile Justices (Care and Protection of Children) Rules, 2007 prescribed the procedure for determination of the age of a juvenile in conflict with law, the court has to seek evidence by obtaining matriculation certificate or equivalent certificate in absence whereof; the date of birth certificate from the school first attended and in absence whereof the birth certificate given by corporation or municipal authority or a panchayat. In absence of above three documents the court is to obtain a medical opinion from a duly constituted medical board.
In the case at hand, neither there was any matriculation certificate or equivalent certificate nor the birth certificate issued either by the corporation or a municipal authority or a panchayat. In such a situation, the investigating authority obtained the birth certificate from the school which of course shows that on the date of the incident the petitioner was below the age of 18 years. However, at the same time the investigating officer also seized the original admission register. It is apparent from the said admission register that date of birth of the petitioner noted therein was overwritten and interpolated, therefore, it cannot be said the learned Magistrate without following the first option laid down in the rule has illegally directed ossification test of the petitioner. It cannot be said that the learned Magistrate has exceeded his jurisdiction. The learned Magistrate has also not committed any mistake in not relying on the date of birth noted in the admission register. I am of the opinion, if ossification test is done, none will be prejudiced and ossification test of the petitioner would unfold the truth.
In the result the impugned order is sustained and this criminal revision which has no merit stands dismissed.
Criminal Section is directed to deliver urgent xerox certified copy of this order to the parties, if applied for, as early as possible.
(Ashim Kumar Roy, J.)