ORDER :

1. The petitioner is challenging the impugned order dated 21.6.2022 passed by the learned Additional Sessions Judge, FTSC (POCSO), Kawardha, District Kabirdham in Special Sessions Case No. 68/2022 whereby the learned trial Court has rejected the application of the petitioner for sending the case to the Juvenile Justice Board, Kawardha, District Kabirdham.

2. Facts of the case, in brief, are that the victim (a minor girl aged below 16 years) has lodged a report stating that in the intervening night of 31st January, 2022 and 1st February, 2022, when she was sleeping in her house, the applicant entered her room and committed forcible sexual intercourse with her. Based on which Crime No. 51/2022 has been registered at Police Outpost Dashranpur, District Kawardha for offence under Sections 376 (3) and 376 (2)(n) of the IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the Act 2012’).

3. During investigation, mark-sheet of class-10th of the petitioner was seized in which his date of birth was recorded as 15.4.2003. In the mark-sheet of Middle School also, his date of birth is mentioned as 15.4.2003, which was later on corrected as 15.4.2004. Learned Special Court under the POCSO Act, without making any enquiry or obtaining other evidence regarding the date of birth of the accused, has rejected the application of the petitioner, as during investigation, mark-sheet of class-10th has been filed wherein the date of birth of the petitioner was mentioned as 15.4.2003.

4. Learned counsel for the petitioner would submit that the trial Court has ignored the School Certificate which was the very first document. In the School Admission Register, correct date of birth is mentioned as 15.4.2004, according to which, the petitioner was juvenile on the date of the incident. The petitioner has also filed School Entry Register of Primary School Bhudkuda, Block Kawardha, however, the trial Court without making any enquiry as to the juvenility of the petitioner, which was raised by him, and without following the procedure envisaged under Sections 9 and 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short ‘the Act 2015’) and Section 34 of the Act, 2012, passed the impugned order, which is not sustainable. Reliance is placed in the matter of Shriram Rawat vs. State of Madhya Pradesh, 2022 SCC Online M.P. 1995, wherein when any issue is raised about the juvenility, proper procedure has been laid down by the Hon’ble Supreme Court in the matters of Rishipal Singh Solanki vs. State of Uttar Pradesh, 2021 SCC Online SC 1079 and XYZ vs. Abhisheik and Another, 2022 SCC Online SC 1200.

5. On the other hand, learned State Counsel would submit that after lodging of the report, father of the petitioner has filed an application for correction of date of birth of the petitioner in the Class-10th marksheet before the Chhattisgarh Education Board. Therefore, taking plea of juvenility is an afterthought to come out from the cluches of trial as major. He would further submit that the birth certificate was also obtained by the petitioner and got registered after lodging of the report on 24th June, 2022. The trial Court has rightly rejected the application of the petitioner. So, learned State Counsel prays to dismiss the Revision.

6. Heard learned counsel for the parties and perused the documents annexed with the petition.

7. Section 34 of the Act, 2012 prescribes the procedure in case of commission of offence by child and determination of age by Special Court, which reads as under:

“34. Procedure in case of commission of offence by child and determination of age by Special Court:

(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined b