Sugandh Chaudhary @ Sugandh Kumar vs The State Of Bihar
2021 Latest Caselaw 4229 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.2627 of 2021
 Arising Out of PS. Case No.-43 Year-2020 Thana- MAHILA P.S District- West Champaran
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Sugandh Chaudhary @ Sugandh Kumar Son of Dukhi Chaudhary Resident of Village - Nuniywa Tola, P.S.- Bhairoganj, Distt.- West Champaran ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Baxi S.R.P. Sinha, Sr. Adv.

Mr. Vijay Kr Singh No. 1, Adv.

For the Respondent/s : Mr. Zeyaul Hoda, SPP ====================================================== CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN ORAL JUDGMENT Date : 23-08-2021 Heard learned senior counsel for the appellant and

learned counsel for the State.

Learned senior counsel for the appellant submits

that in para-1 of the memo of appeal the date of order has been

wrongly typed as 19.03.2024 in place of 10.03.2021.

Let it be so corrected and read accordingly.

The present appeal has been filed by the appellant

for assailing the order dated 10.03.2021 passed by learned

Additional Sessions Judge-VIIth-cum-Special Judge (POCSO)

West Champaran, Bettiah arising out of Bagaha Mahila P.S.

Case No. 43 of 2020 registered for the offence under Sections

341, 323, 337, 376, 504 and 34 of the I.P.C., Section 4 and 12 of

the POCSO Act and Sections ¾ of the D.P. Act, whereby the

learned court below has rejected the petition of the appellant Patna High Court CR. APP (SJ) No.2627 of 2021 dt.23-08-2021

and refused to send the case of the appellant to the court of

Juvenile Justice Board for determination of Juvenility of the

appellant.

It is the claim of the appellant that he was 17 years

of age on the alleged date of occurrence. The appellant is facing

trial on the charge of commission of offence inter alia under

Section 376 of the IPC read with Section 4 and 12 of the

POCSO Act.

It is the case of the appellant that the date of birth,

as recorded in the School Leaving Certificate, is 16.03.2003

which has been issued by the Rajkiye Utkrit Madhaya

Vidyalaya, Gadahiya. He submits that appellant, being Juvenile,

filed a petition before the Special Court (POCSO) on

06.01.2021 for sending his case before the court of Juvenile

Justice Board for determination of his juvenility as the age of

the appellant was below 17 years at the time of occurrence. He

submits that the learned Special Judge (POCSO) has refused the

prayer of the appellant of sending his case to the Juvenile

Justice Board, on the ground that the appellant was near to

majority of 18 years as his age was found to be 17 years 9

months six days that appears to be calculated from the date of

filing of the petition dated 06.01.2021, whereas the date of birth Patna High Court CR. APP (SJ) No.2627 of 2021 dt.23-08-2021

of the appellant as per school certificate is 16.03.2003. It is

admitted fact that the occurrence had taken place 7 months ago

from the date of lodging the present FIR, which was lodged on

15.09.2020 and as such it is admitted that the appellant was less

than 17 years at the time of occurrence.

At the same time, the law requires that once the

claim of juvenility is raised, the same must be decided in

accordance with the procedure laid down under the Juvenile

Justice (Care and Protection of Children) Act, 2012 and the

rules framed thereunder.

The Bihar Juvenile Justice (Care and Protection of

Children) Rules, 2012, have been framed in exercise of power

under Section 68 of the Juvenile Justice Act, Rule 11 of which

lays down the procedure for determination of age.

Rule 11 (3) (a) of the Rules is relevant for the

present purpose and is being reproduced hereinbelow:

"11. Procedure to be followed in determination of age-

(1) xx xx xx xx (2) xx xx xx xx (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 the Committee, as the case may be, by seeking evidence by obtaining:

(a) (i) the matriculation or equivalent certificate, if available; and/or,

(ii) xx xx xx

(iii) xx xx xx"

Patna High Court CR. APP (SJ) No.2627 of 2021 dt.23-08-2021

Learned senior counsel for the appellant appears

to be right in his submission that for determination of age of the

appellant, the procedure, as prescribed under Rule 11 of the

Rules, has not been followed by the learned Court below, while

passing the impugned order dated 10.03.2021.

This appeal is, accordingly, allowed and the order

dated 10.03.2021 passed by the learned Additional Sessions

Judge-VIIth-cum-Special Judge (POCSO) West Champaran,

Bettiah is set aside. The matter is remanded back to the learned

J.J. Board for determination of the age of the appellant in

accordance with the procedure prescribed under Rule 11 of the

said Rules, as indicated above.

(Anjani Kumar Sharan, J)

devendra/-

AFR/NAFR                NA
CAV DATE                NA
Uploading Date          26.08.2021
Transmission Date       26.08.2021