IMPORTANT POINT
The court established that the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, and its rules must be applied for age determination, negating the applicability of the earlier rules that allowed for a one-year benefit on the lower side.

JUDGMENT :

Rajeev Ranjan Prasad, J.

This revision application has been preferred for setting aside the order dated 03.08.2021 passed by learned Additional District and Sessions Judge-I, Gopalganj in Cr. Appeal No. 20 of 2021. By the impugned judgment, learned Appellate Court has been pleased to set aside the order dated 14.06.2021 passed by learned Juvenile Justice Board, Gopalganj (hereinafter referred to as the ‘Board’) in J.J.B. Case No. 10 of 2021 arising out of Gopalganj P.S. Case No. 139 of 2020 registered for the offences under Section 302/34 of the Indian Penal Code by which the Board had declared the Accused No. 1-O.P. No.2 an adult on the basis of assessment of age by the Medical Board headed by the Civil Surgeon, Saran at Chapra.

Brief Facts of the Case.

2. The opposite party no. 2 in the present application is an accused in Gopalganj P.S. Case No. 139 of 2020 registered under Section 302/34 IPC. According to the informant-petitioner, opposite party no. 2 had attacked the son of the informant by a knife when the victim was on his way back home from an invitation near Sati Sthan, Kothwaliya Ward No. 7. The victim was taken to the Gopalganj Sadar Hospital for treatment but when the informant was returning back along with his son to purchase medicines, this opposite party no. 2 along with three and four unknown people attacked his son again with knife with an intention to murder him. In the said occurrence, son of the informant was killed.

3. The opposite party no. 2 preferred an application under the provision of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the ‘Act of 2015’) and claimed that on the alleged date of occurrence, he was a juvenile. The opposite party no. 2 presented a date of birth certificate showing him a minor on the date of occurrence but the Board could not determine as to from which school the O.P. No. 2 had completed his education. By the order of the Board, a Medical Board was constituted to determine the age of the O.P. No. 2. It is stated that the Medical Board in its first meeting observed physical attributes of the O.P. No. 2 and advised him to go for an X-ray. In its second meeting held on 30.04.2021, the Medical Board acting on the basis of medical reports and after considering radiological, physical and dental reports were of the view that the O.P. No. 2 was more than 20 years of age on the date of examination. The Board, therefore, declared that on the alleged date of occurrence, the O.P. No. 2 was aged about 19 years 01 month and 25 days.

4. Being aggrieved by and dissatisfied with the order of the Board, O.P. No. 2 filed a criminal appeal before the learned Additional District and Sessions Judge-I, Gopalganj giving rise to Cr. Appeal No. 20 of 2021 which was heard on 03.08.2021. The learned Appellate Court reversed the order of the Board by applying Rule 12(3)(b) of the Juvenile Justice Rules, 2007 (hereinafter referred to as the ‘Rules of 2007’). The learned Appellate Court held that as per the Medical Board report if the petitioner was aged about 20 years, on the alleged date of occurrence, he would be aged about 18 years on 26.02.2020. At this stage, if the principles of Rule 12(3)(b) of Rules of 2007 are applied, the accused would not be more than 16 years 10 months and 26 days on the alleged date of occurrence. The learned Appellate Court relied upon the judgment of this Court in the case of Karanvir Singh versus the State of Bihar reported in 2020 (2) PLJR 279 which in turn is based on the judgment of the Hon’ble Supreme Court in the case of Darga Ram @ Gunga versus the State of Rajasthan reported in (2015) 2 SCC 775.

Submissions on behalf of the Petitioner

5. Learned counsel for the petitioner has assailed the impugned order on the ground inter-alia that the learned Appellate Court could not appreciate that the X-ray report of the O.P. No.2 clearly observed that “based on all the above parameters bone age is above twenty years”. It is submitted