Jharkhand High Court
Manoj Marandi vs The State Of Jharkhand on 16 October, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 251 of 2023
Manoj Marandi, son of Pendo Marandi, resident of village: Gari Tola
Salujam, PO & PS: Ichak, District: Hazaribagh ... Appellant
-Versus-
The State of Jharkhand ... ... Respondent
CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant :- Mr. P.P.N. Roy, Sr. Advocate;
Mr. P.A.N. Roy, Advocate
For the State :- Mr. Vishwanath Roy, Spl.P.P.
...
06/16.10.2023: Both the counsels have appeared.
2. This appeal arises out of order dated 11.03.2022 passed in Misc. Cr.
Appl. No. 999 of 2021 arising out of ST Case No. 77 of 2019 by the learned
ASJ-II, Hazaribagh for setting aside the aforesaid order as it has been passed
without following the procedure laid down under section 94(2)(iii) of the
Juvenile Justice (Care & Protection of Children) Act, 2015 for ascertaining the
age of the appellant on the alleged date of occurrence and for further direction
may be issued to the learned Court below to follow the procedure laid down
under section 94(2)(iii) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 for ascertaining the age of the appellant on the alleged date
of occurrence.
3. It is submitted by the learned counsel for the appellant that the
appellant had raised points of juvenility during the trial and from perusal of the
impugned judgment dated 14.09.2021 passed in ST Case No. 77 of 2019 the
age of the appellant is mentioned as 19 years and while recording the statement
of the appellant under section 313 CrPC, the Court has assessed the age of the
appellant as 19 years and the said statement was recorded by the Court on
21.06.2021.The date of occurrence is 16.10.2018 so admittedly the age of the
appellant was under 18 years on the date of occurrence and as such, on the
alleged date of occurrence i.e. on 16.10.2018 the appellant was under 18 years
of age and he was juvenile.
4. The learned Court-below vide order dated 11.03.2022 rejected the
application filed by the appellant under Chapter-III section 9 of the Juvenile
Justice (Care & Protection of Children) Act, 2015.
5. The learned counsel for the appellant further submits that from the
order rejecting the application filed by the appellant under Chapter-III section 9
of the Juvenile Justice (Care & Protection of Children) Act, 2015, the learned
Court-below has mentioned in the order that the appellant was given several
opportunity to produce the document and the record was fixed for inquiry
evidence but no evidence either documentary or oral was adduced on behalf of
the appellant. Then in that case the learned Court-below should have followed
the above mentioned provision of Section 94(2) (iii) of the Juvenile Justice
(Care & Protection of Children) Act, 2015 but the learned Court-below did not
follow the procedure and rejected the application filed by the appellant on the
ground that the age written by the learned Court of Sessions in the format of
section 313 CrPC cannot be a ground to declare the appellant juvenile and
hence, the application of the appellant was rejected.
6. Section 9 (2) & (3) of the Juvenile Justice (Care & Protection of
Children) Act read as under:
"9. Procedure to be followed by a Magistrate who has not
been empowered under this Act-
(2) In case a person alleged to have committed an
offence claims before a court other than a Board, that the
person is a child or was a child on the date of commission of
the offence, or if the court itself is of the opinion that the
person was a child on the date of commission of the offence,
the said court shall make an inquiry, take such evidence as
may be necessary (but not in affidavit) to determine the age of
such person, and shall record a finding on the matter, stating
the age of the person as nearly as may be:
Provided that such a claim may be raised before any
court and it shall be recognized at any stage, even after final
disposal of the case, and such a claim shall be determined in
accordance with the provisions contained in this Act and the
rules made thereunder, even if the person has ceased to be a
child on or before the date of commencement of this Act.
(3) If the court finds a person has committed an
offence and was a child on the date of commission of the
offence, it shall forward the child to the Board for passing
appropriate orders and the sentence, if any, passed by a court
shall be deemed to have no effect."
7. Section 94(2)&(3) of the Juvenile Justice (Care & Protection of
Children) Act, 2015 reads as under:
"(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought it is
a child or not, the Committee or the Board, as the case may
be, shall undertake the process of age determination. By
seeking evidence by obtaining-
(i) the date of birth certificate from the school,or the
matriculation or equivalent certificate from the concerend
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a Panchayat;
(iii) and only in the absence of either (i), (ii)above,
age shall be determined by ossification test or any other
latest medical age determination test conducted on the orders
of the Committee or the Board:
Provided such age determination test conducted on
the order of the Committee or the Board shall be completed
within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board 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."
8. The appellant has mentioned in para-2 of the main petition that the
appellant had filed IA No. 1857 of 2023 in Cr. Appeal (DB) No. 506 of 2022
for setting aside the order dated 11.03.2022 passed in Misc. Appeal No. 999 of
2021 and further prayer was made under section 9(2) of the Juvenile Justice
(Care & Protection of Children) Act for making an enquiry of the appellant and
that he may be sent to Juvenile Justice Board, Hazaribagh for carrying out
necessary enquiry vis-a-vis determination of age of the appellant on the date of
occurrence and vide order dated 27.02.2023 the Hon'ble Court was pleased to
dismiss the said IA No.1857 of 2023 with a liberty to search out the remedy of
appeal as available under the statute. Thereafter current appeal Cr. Appeal (SJ)
No. 251 of 2023 was filed for setting aside aforesaid order dated 11.03.2022.
9. The learned senior counsel has referred to and relied upon the order of
the learned Division Bench of this Court in Cr. Appeal (DB) No. 501 of 2013
with IA No. 3990 of 2014 dated 29.07.2015 and has submitted that in the said
case the case of the appellant was directed to be sent to Juvenile Justice Board,
Hazaribagh for carrying out necessary enquiry vis-a-vis determination of the
age of the appellant on the date of occurrence.
10. Therefore, the learned senior counsel has submitted that in the present
case also, direction may be given to the Juvenile Justice Board to determine the
juvenility of the appellant.
11. The learned counsel for the State has submitted that when the officer-
in-charge of Ichak police station in compliance of direction issued by the Court,
approached mother of the appellant, he came to know that the appellant has
never studied at any level, hence, there is no such age proof, however, his
mother provided photocopy of Aadhaar card of the appellant having age of year
2002. The mother of the appellant has stated on photocopy of Aadhaar card that
her younger son has not studied in school and subsequent to that, provided
Aadhaar card of the appellant in support of his age.
12. Having heard both the counsels, gone through the records of the case,
in the facts and circumstances and in the light of the order dated 27.02.2023
passed in IA No. 1857 of 2023 in Cr. Appeal (DB) No. 506 of 2022 and the
order dated 29.07.2015 passed in Cr. Appeal (DB) No. 501 of 2013 with IA No.
3990 of 2014, the order dated 11.03.2022 passed in Misc. Cr. Appl. No. 999 of
2021 arising out of ST Case No. 77 of 2019 by the learned ASJ-II, Hazaribagh
is set aside.
13. The learned Court-below is directed to send the case of the appellant
to the learned Juvenile Justice Board, Hazaribagh for carrying out necessary
enquiry vis-a-vis determination of the age of the appellant on the date of
occurrence. If necessary, the help of the Medical Board should also be taken for
ascertaining the age of the appellant on the date of occurrence. It is also directed
that the said enquiry shall be concluded expeditiously, preferably within six
weeks from the date of receipt of the order.
14. This criminal appeal is allowed, with the aforesaid terms.
S.B. (Ratnaker Bhengra, J.)
