IMPORTANT POINT
The court established that the school certificate is a primary document for age determination in juvenile cases, and ossification tests should only be a secondary measure when other evidence is lacking.

ORDER :

MITALI THAKURIA

1. Heard Mr. F. Khan, learned counsel for the petitioner and also heard Mr. D. Das, learned Additional Public Prosecutor for State respondent. This is an application under section 397 read with section 401/482 of Cr.P.C for quashing and setting aside the impugned order dated 28.07.2021 and 06.08.2021, passed by the learned Special Judge, Tinsukia, in Bordubi PS Case No. 120/2021 as well as the ossification test report dated 04.08.2021. LCR has been received. Perused the same. It is submitted by the learned counsel for the petitioner that on 16.07.2021 the FIR was lodged by the informant at Bordubi Police Station alleging interalia that on 11.07.2021, at about 2 pm, while his daughter namely Sonu Bhujel was on the way to shop the accused person Motu Bhagat along with one Sri Nitesh Yadav had gagged her forcibly and raped her at tea garden. Accordingly, a case was registered as Bordubi PS Case No. 120/2021, under section 376(2)(i)(j) of the IPC read with section 4 of the POCSO Act. Accordingly, the accused person was arrested and forwarded to the Judicial Custody. On 20.07.2021, one petition was filed before the learned Special Judge stating that the accused is Juvenile and his date of birth is 08.01.2004 as per school certificate and accordingly, prayed to refer the accused before the Juvenile Court for further proceeding of the case and also prayed to allow the accused to go on bail.

2. One school certificate dated 24.06.2015 was issued by the Head Master of Charili Hindi L.P School, Monkhooli, District-Tinsukia was also submitted before the learned Special Judge, Tinsukia and from the certificate, it shows that on the date of incident i.e on 11.07.2021, the accused completed the age of 17 years 6 months and 3 days. The learned Special Judge, Tinsukia vide order dated 27.07.2021, issued notice to the Head Master of the said school and directed him to appear along with relevant documents to prove the age of the accused to declare him as juvenile. Accordingly, on 28.07.2021 one Satya Narayan Prasad, the Head Master of the said School appeared before the learned Special Judge Tinsukia and accordingly his statement was recorded and he also brought the admission register as well. But vide impugned order dated 28.07.2021, the learned Special Judge, Tinsukia observed that his date of birth was entered into the admission registrar as told by his guardian and thus, the source of information to record the date of birth of the accused is not clear and accordingly, the school certificate of the accused Sunil Bhagat for determination of the age was not accepted by the learned Special Judge, Tinsukia.

3. Thereafter, the learned Special Judge, Tinsukia directed the Joint Director of Health Service, Tinsukia to constitute a Medical Board to ascertain the correct age of the accused through ossification test. The ossification test was accordingly conducted and vide the medical report dated 04.08.2021, it was opined that the age of the accused is above 18 years and below 19 years and accordingly vide order dated 06.08.2021, the prayer of the petitioner for declaring the accused as Juvenile in conflict with law was rejected. It is submitted by the learned counsel for the petitioner that the learned Court below did not consider the provision of section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the provision of section 94 of the said Act read as under:

“94. Presumption and determination of age – (1) where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of age.

(2) In case, the Committee or the Board has