Delhi High Court
Faeem @ Bona vs The State Of Nct Of Delhi on 17 January, 2020
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17.01.2020
+ CRL.M.C. 851/2019
FAEEM @ BONA ..... Petitioner
Through Mr. R. K. Tarun, Adv.
versus
THE STATE OF NCT OF DELHI ..... Respondent
Through Mr. Panna Lal Sharma, APP for State
SI Raj Malik, Security, IS Pawan
Kumar, PS S.P. Badli
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. The present petition is filed under Section 482 of Cr.P.C. on behalf of
petitioner for setting aside the impuged order dated 14.01.2019 passed in
SC No. 487/17 and as a consequence thereof transferring the case of the
petitioner to the Juvenile Justice Board.
2. As stated in the present petition that the Ld. Trial Court at the time of
taking cognizance of the alleged offence against the present petitioner was
prima facie of the view that the petitioner's age has to be ascertained as from
the face of records brought by the prosecution, his bone ossification test can
be of significance to ascertain his age and accordingly, the Ld. Trial Court
vide order dated 12.05.2017 directed the medical board to get the
ossification test conducted of the petitioner.
3. It is further stated in the present petition that the factum of the
juvenility of the Petitioner at the time of alleged incident becomes evident
from the report of Ossification Test dated 27.05.2017, giving a benefit of 2
years from the lower side as per JJB Act and rules read with several
pronouncements of the superior courts. The ossification test report reveals
the petitioner to be a Juvenile, thereby bringing forth the patent illegality in
keeping the petitioner behind bars in gross violation of the Juvenile Justice
Act and accordingly, an application was preferred before the Trial Court, by
the petitioner, for transferring the case of the petitioner to the Juvenile
Justice Board.
4. On perusal of the impugned order, it is revealed that the learned Trial
Court inadvertently miscalculated the age of the petitioner from the lower
side i.e. 20 years, thereby dragging the petitioner out of the ambit of the
Juvenile Justice Act, to the peril of the petitioner. The age of the petitioner
has been calculated as under:-
Date of Bone Age 27.05.2017
examination
Date of alleged offence 20.02.2017
#### Difference between date of 03 months 07 days
alleged offence and date of bone Between 20-22 years.
age examination.
Age opined by the Medical 20 years
Board
Age on the lower side of the 02 years
applicant/accused
Benefit as per Juvenile 18 years
Justice Rules
After giving benefit the age comes 17 years 08 months 23 days
to:
Approx.
[At the time of alleged incident}.
Hence, Juvenile.
#### Difference between date of 03 months 07 days
alleged offence and date of bone
age examination.
5. In view of above, as per the ossification test report dated 27.05.2017,
the petitioner, as a Juvenile at the time of the commission of the alleged
incident. Thus, liable to be sent to the proper Jurisdiction which lies with the
Juvenile Justice Board to try the present petitioner.
6. In case of Vikas Chaudhary Vs. State: 2007 [143] DLT 603, thereby
this Court held as under:-
"15. As far as the ossification test and the medical evidence
are concerned there too the approach of the learned
Additional Sessions Judge is, in my opinion, erroneous.
According to the expert the petitioner was 22-25 years on
the date of his examination i.e. 09.08.2005. The learned
Additional Sessions Judge acknowledged that such
determination is a rough estimate and the individual
would have to be given benefit by deducting some years
but proceeded to do so from the outer age indicated. This
is an incorrect approach as the Juvenile is entitled to
beneficial interpretation in such case. Therefore, the two
years deduction made would have to be from the lower
age indicated namely, 22 years. That would mean that as
in August, 2005 the petitioner was probably 20years; as
on the date of incident [20.01.2003] in all probability he
was less than 18years. This interpretation is also in
consonance with the claims based on the Board
Certificate relied upon by the petitioner."
7. In the present case, the learned Trial Court has calculated the age
from the date of Ossification Test i.e. 27.05.2017, whereas the age is to be
calculated from the date of offence i.e. 20.02.2017. If in the impugned order,
three months are reduced from the petitioner's age, it comes out to be 17
years and 9 months, thus he is under the age of 18 years on the date of
commission of offence.
8. Accordingly, I hereby set aside impugned order dated 14.01.2019 and
consequently, the Trial Court is directed to transfer the case of the petitioner
to Juvenile Justice Board for proceedings.
9. The petition is accordingly allowed and disposed of.
10. Order dasti under signatures of the Court Master.
11. Learned APP named above has pointed out to this Court that in this
case, injustice has been caused to the petitioner and on his mentioning, the
present petition is taken up for disposal. This Court appreciates the gesture
advanced by learned APP named above.
(SURESH KUMAR KAIT)
JUDGE
JANUARY 17, 2019
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