IMPORTANT POINT
Holding enquiry for determination of age of an accused must consider the matriculation certificate, if available and in its absence, the school leaving certificate of the accused from the school where he first attended and in the absence of the aforesaid documents may rely on the ossification report.

JUDGMENT

Joymalya Bagchi, J.—

In Re: C.R.A.N.2608 of 2017

This application has been filed for recalling of the order dated 19.6.2017 and restoration of the revision petition.

Having considered the averments made in the application, being CRAN 2608 of 2017, order dated 19.6.2017 is recalled. The revision petition is restored to its original file and number.

The application for restoration being CRAN 2608 of 2017 is disposed of.

In Re: C.R.R.2890 of 2017

Report is filed on behalf of the State respondents which is kept on record.

2. Learned Advocate appearing for the petitioner submits that the impugned order passed by the learned Magistrate is contrary to law as the court below has failed to consider relevant documents, that is, matriculation certificate and school leaving certificate relied upon by the petitioner in support of his age.

3. On the other hand, learned Advocate appearing for the opposite party no.2, defacto complainant submits that ossification report showed that the petitioner was major and, therefore, the order does not call for interference. It is submitted that the victim was a minor but the offences under the offences POSCO Act have not been added.

4. I have considered the rival submissions of the parties. Rule 12 of Juvenile Justice (Care and Protection of Children) Act, 2007 lay down the procedure in which the determination of age of an accused is to be done under the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12(3) of the said Rules reads as follow;

“12(3): In every case concerned a child for 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.”

5. From the aforesaid rule, it is clear that the court determining holding enquiry for determination of age of an accused must consider the matriculation certificate, if available and in its absence, the school leaving certificate of the accused from the school where he first attended and in the absence of the aforesaid documents may rely on the ossification report.

6. Perusal of the impugned order would show that the learned Magistrate had failed to follow the aforesaid procedure and had not expressed any opinion with regard to the matriculation certificate or the school leaving certificate relied upon by the petitioner.

7. Accordingly, I set aside the impugned order and direct the learned Magistrate to conduct fresh enquiry into the determination of the age of the petitioner following the procedure laid down Rule 12 (3), as aforesaid and take appropriate decision thereon in accordance with law within two months from the date of communication of this order.

With the aforesaid direction, the revision petition is disposed of.

8. I make it clear that I have not expressed any opinion as to the merits of the plea of the petitioner as to his juvenility and/or the veracity or genuineness of the documents relied upon by him in that regard and all such issues are to be kept open to be decided by the learned Magistrate independently and in accordance with law.

Opposite Party No.2 as a victim of crime is entitled to participate in the p