Rahul vs State
2012 Latest Caselaw 1796 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

                 +Crl. Rev. P. No.328/2011 & Crl.MA 8620/2011

                                               Date of Decision: 15.03.2012
Rahul                                                     ...... Petitioner
                            Through:      Mr.   Jitendra  Kumar      Tyagi,
                                          Advocate

                                     Versus

State                                                ...... Respondent
                            Through:      Mr. M.N. Dudeja, APP for State

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

1. This petition under Section 397/401 read with Section 482 Cr.PC has been preferred by the petitioner against an order dated 23.5.2011 passed by learned ASJ, Delhi whereby an application of the petitioner for being declared a juvenile and to be tried as such was dismissed.

2. It is to be noticed that as many as four accused persons namely Suresh, Rahul (present petitioner), Dheeraj and Dinesh were facing trial before the Court of learned ASJ. Accused Suresh being adult was being tried separately. Accused Dinesh and Dheeraj who also claimed to be juvenile were declared as such vide order dated 18.2.2010 by learned ASJ. However, the request of petitioner Rahul who claimed himself to be a juvenile was declined by learned ASJ vide the impugned order dated 23.5.2011.

3. The grievance of the petitioner is that he is a juvenile and that he has

produced a school leaving certificate as Ex.C1 and C2 and that the same was proved in the statement of witness Sanjay Gupta, peon of the school where he studied and further that the said school leaving certificate was also got verified by the Court from Inspector Madan Pal Bharti who vide his report dated 10.5.2010 confirmed the authenticity of the school leaving certificate of the petitioner as given by the Head Master of the school and that the same correctly recorded his date of birth 25.11.1991. The learned ASJ vide the impugned order observed that accused/ petitioner was admitted in the school and his date of birth was recorded on the oral submissions of his parents, therefore, ossification test of the accused was got conducted and according to the ossification test report, the accused/ petitioner was more than 22 years and less than 25 years of age, thus a major and not a juvenile on the date of the incident i.e. 8.2.2009. It was also observed that the ossification test report is more authentic way of determination of age than the school leaving certificate which recorded the date of birth only on the oral submissions of the parents of the accused/petitioner.

4. I have heard learned counsel for the petitioner as also learned APP on behalf of the State and perused the record.

5. I find the grievance of the petitioner to be well-founded. The learned ASJ seems to have overlooked the provisions of Rule 12 of Juvenile Justice Rules which prescribe a procedure to be followed in determination of age. This Court has dealt with similar situations in various cases and it is noted that the trial courts are not following the due procedure to determine the juvenility of accused persons. Giving preference to ossification test and outrightly ignoring the school leaving certificate is apparently misconceived

and contrary to law. A due enquiry was required to be conducted to discard the evidence related to school leaving certificate or birth certificate before proceeding to order for ossification test and relying upon it in preference over the school record. The fact that the date of birth of the petitioner/accused in school leaving certificate was recorded on the oral submissions of the parents of the petitioner itself was no ground to discard the school record.

6. This Court in Pradeep Sehrawat v State of NCT of Delhi [ 2012 (1) JCC 29] and Nate Kumar Sonar v State [Crl.Rev. P. No.127 of 2011 decided on 25.11.2011] has dealt with similar situation and remanded back the matter to learned ASJ with the directions to follow the procedure as described in recent pronouncements with reference to the above case.

7. Having regard to the foregoing facts and circumstances, the impugned order is set aside being untenable. The matter is remanded back to learned ASJ for conducting an enquiry as per the prescribed procedure. The petitioner is directed to appear before the District Judge on 19.3.2012.

8. The trial court record be sent back forthwith.

9. The petition stands disposed of in above terms.

10. Dasti to both sides.

                                                                  M.L. MEHTA, J
MARCH          15, 2012
rd