Patna High Court
Amit Kumar @ Suraj Kumar vs The State Of Bihar on 21 June, 2013
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.253 of 2013
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Amit Kumar @ Suraj Kumar son of Moti Bhagat through under the
guardianship of his father namely Modi Bhagat resident of village-Lodhipur,
P.S. Karpi, District-Arwal.
.... .... Petitioner.
Versus
The State of Bihar
.... .... Opposite party.
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Appearance :
For the Petitioner : Mr. Niraj Kumar, Advocate.
For the State : Mr. Dashrath Mehta, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
CAV JUDGMENT
Date: 21 -06-2013:
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This Criminal Revision, under Section 53 of the Juvenile
Justice (Care and Protection of Children) Act, 2000, is directed against
the Judgment dated 7.1.2013 passed in Criminal Appeal No.67 of 2012,
whereby the Sessions Judge, Jehanabad dismissed the aforesaid
Criminal Appeal, holding that the petitioner cannot be treated as
juvenile, as preferred against the order dated 31.10.2012 passed in G.R.
Case No.192 of 2012/ Trial No.421(J) of 2012, arising out of Karpi P.S.
Case No.16 of 2012, by the Juvenile Justice Board, Jehanabad,
rejecting the prayer of the petitioner for bail.
2. The brief facts of the case is that on the statement of the
Assistant Sub Inspector, Dhananjay Jha, of Police Station-Karpi, Karpi
P.S. Case No.16 of 2012 was registered under Sections 25(1-b)a, 26
and 35 of the Arms Act, Section 414 of the Indian Penal Code and
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Section 17 of the Criminal Law Amendment Act against the petitioner
and three others. It is alleged in the F.I.R. that on the basis of the
secret information a raid was conducted in village-Lodipur near the
door of Laldeo Singh. In that course, a person armed with police
carbine came out from the heap of paddy straws but the police caught
hold of him. The huge quantity of arms and ammunitions were also
recovered from the heap of paddy straws. The apprehended person
disclosed his name as Suraj Kumar (petitioner) and from his possession
a 9 mm. police carbine loaded with 20 live cartridges was recovered.
The other three persons, namely, Laldeo Singh, Mukesh Kumar and
Upendra Kumar, were also caught hold of by the police from there.
3. The petitioner filed a petition in the court of the Chief
Judicial Magistrate, Jehanabad, claiming himself to be a juvenile and
on such claim, the petitioner was sent to the Juvenile Justice Board,
Jehanabad, for inquiry. The Juvenile Justice Board, Jehanabad, vide
order dated 16.3.2012 held the petitioner juvenile, assessing his age as
14 years 2 months and 15 days on the date of the occurrence, on the
basis of the entry of the date of birth, i.e., 15.11.1996, in the School
Admission Register but the Juvenile Justice Board, Jehanabad, refused
the prayer of the petitioner for bail vide order dated 30.4.2012. Against
the aforesaid order of rejection of the prayer for bail passed by the
Juvenile Justice Board, Jehanabad, the petitioner preferred Criminal
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Appeal No.20 of 2012 in the court of the Sessions Judge, Jehanabad.
The Sessions Judge, Jehanabad, dismissed the aforesaid Criminal
appeal, holding that the entry of the date of birth of the petitioner in
School Register appears to be forged and fabricated, and directed the
Juvenile Justice Board, Jehanabad, to assess the age of the petitioner by
getting him to be examined by the Medical Board. In pursuance
thereof, the petitioner was examined by the Medical Board on
1.10.2012and his age was assessed by the Medical Board in between 16 to 17 years. The Juvenile Justice Board, Jehanabad, on the basis of the report of the Medical Board held the petitioner to be juvenile on 12.10.2012 but vide order dated 31.10.2012 refused the prayer of the petitioner for bail. The petitioner again preferred Criminal Appeal No.67 of 2012 against the aforesaid order dated 31.10.2012 of the Juvenile Justice Board, Jehanabad, refusing the prayer of the petitioner for bail, before the Sessions Judge, Jehanabad and the Sessions Judge, Jehanabad, not only dismissed the aforesaid Criminal Appeal No.67 of 2012 through the impugned Judgment dated 7.1.2013 but at the same time held that the petitioner cannot be treated as juvenile and so he does not deserve the privilege of bail under the Juvenile Justice (Care and Protection of Children) Act, 2000.
4. Learned counsel for the petitioner made submission that the petitioner was declared juvenile by the Juvenile Justice Board, 4 Patna High Court CR. REV. No.253 of 2013 dt.21-06-2013 4 / 10 Jehanabad, on the basis of entry of date of birth in the Admission Register of first attended School and later on, his juvenility was also determined on the basis of the report of the Medical Board, hence, the finding of the learned Sessions Judge to the effect that the petitioner cannot be treated as juvenile in the appeal preferred by the petitioner against the order of refusal of bail by the Juvenile Justice Board is illegal and beyond the jurisdiction. It has further been submitted that the learned Sessions Judge, Jehanabad, traveled beyond his jurisdiction by stating about the dwindling morality of Indian Citizen and also by recording the finding that the Rule 12 of the Juvenile justice (Care and Protection of Children) Rules should be declared ultra virus.
5. To appreciate the submission of the learned counsel for the petitioner, it is necessary to refer the provisions of Sections 12 and 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007.
Sections 12 and 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000, are read as under:
"12. Bail of juvenile- (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety (or placed under the supervision of a Probation Officer or under the care of any fit institution or fit 5 Patna High Court CR. REV. No.253 of 2013 dt.21-06-2013 5 / 10 person) but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. (2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-
section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order.
49. Presumption and determination of age- (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority 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."
Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is read as under:
"12. Procedure to be followed in determination of Age.― (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
6 Patna High Court CR. REV. No.253 of 2013 dt.21-06-2013 6 / 10 (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail.
(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 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 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.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub- rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by 7 Patna High Court CR. REV. No.253 of 2013 dt.21-06-2013 7 / 10 the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub- rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
6. Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000, speaks about the presumption and determination of age of the person who appears to be juvenile and claimed to be juvenile. The competent authority shall make due inquiry to find out the age and for that purpose shall take evidence as necessary but not an affidavit and record the finding whether the person is juvenile or not. The order of the competent authority shall not be deemed to have invalid by any subsequent proof. The procedure which is to be followed in determination of age is provided in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The competent authority has no discretion once either of three documents, i.e., Matriculation Certificate or Date of Birth from the School first attended or Birth Certificate issued by the Corporation/Municipality is produced to call for the report of the Medical Board unless the document is found to be fabricated and manipulated. Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, shows that a juvenile in conflict with law ordinarily has to be released on bail irrespective of the 8 Patna High Court CR. REV. No.253 of 2013 dt.21-06-2013 8 / 10 offence unless it is shown that there appears reasonable ground for believing that release is likely to bring him into association with known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice.
7. From perusal of the record of the case and the impugned Judgment, it appears that the petitioner was declared juvenile for the first time by the Juvenile Justice Board, Jehanabad, on the basis of the entry of the date of birth in the School Admission Register but his prayer for bail was rejected by the Juvenile Justice Board. The Sessions Judge, Jehanabad, dismissed the Criminal Appeal No.20 of 2012 of the petitioner, as preferred by him against the order of the rejection of the prayer for bail dated 30.4.2012, with a direction to the Juvenile Justice Board to assess the age of the petitioner on the basis of the report of the Medical Board, questioning the constitutionality of Rule-12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, even the State had not preferred the appeal against the order of the Juvenile Justice Board, holding the petitioner to be juvenile. Again on the basis of the report of the Medical Board, the petitioner was declared juvenile by the Juvenile Justice Board, Jehanabad, but his prayer for bail was rejected by the Juvenile Justice Board, Jehanabad, on 31.10.2012. The petitioner against the aforesaid order of the rejection of the prayer for bail again preferred Criminal Appeal No.67 9 Patna High Court CR. REV. No.253 of 2013 dt.21-06-2013 9 / 10 of 2012 in the court of the Sessions Judge, Jehanabad, but the Sessions Judge, Jehanabad, without considering the material available on the record, disbelieved the report of the Medical Board and dismissed the Criminal Appeal No.67 of 2012 of the petitioner holding that the petitioner cannot be treated as juvenile. When the procedure is prescribed by the Legislature regarding to assess the age of person, who claims juvenility, the court cannot substitute its own notion of justice. Thus, I find that the Sessions Judge, Jehanabad, has committed gross jurisdictional error as well as material irregularity in passing the impugned Judgment. As such, the impugned Judgment is not sustainable in law and is liable to be set aside. Since the petitioner has been declared juvenile in conflict with law on the basis of the age assessed by the Medical Board, hence, the petitioner will be dealt with in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. The learned Sessions Judge has not assigned any reasonable ground as required under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, to refuse the prayer of bail, hence, the petitioner deserves bail.
8. Under the aforesaid facts and circumstances of the case, this Criminal Revision is allowed and the impugned Judgment dated 7.1.2013 passed in Criminal Appeal No.67 of 2012 by the court of Sessions Judge, Jehanabad, is set aside. The petitioner abovenamed 10 Patna High Court CR. REV. No.253 of 2013 dt.21-06-2013 10 / 10 is directed to be released on bail on his furnishing bail bond of Rs.10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of the Juvenile Justice Board, Jehanabad, in G.R. Case No.192 of 2012/ Trial No.421(J) of 2012, arising out of Karpi P.S. Case No.16 of 2012. Out of the two sureties, one surety must be father of the petitioner, who will also file an affidavit by way of undertaking to the effect that he will take care of the petitioner so that he may not indulge in association of unsocial elements.
Let the Lower Court Records be sent to the court below immediately.
(Rajendra Kumar Mishra, J) P.S./-N.A.F.R.