JUDGMENT

I. MAHANTY, J. — This application under Section-482 Cr.P.C. has been filed by the petitioner-Ganga @ Gangadhar Sethy seeking to challenge the order dated 02.01.2009 passed by the learned J.M.F.C., Aska in G.R. Case No. 114 of 2008, whereby, a petition filed by the accused-petitioner claiming to be a juvenile as on the date of occurrence came to be rejected.

2.It appears from the case record that an F.I.R. was registered on 28.3.2008 for alleged commission of offence under Sections 302, 307, 326, 109, 120-B.I.P.C. read with Sections 25(1-B) (a) & 27 of the Arms Act. In course of investigation, the present petitioner along with other accused persons were arrested and forwarded to the judicial custody. The present accused-petitioner filed a petition before the learned J.M.F.C., Aska on 26.06.2008 claiming therein that his date of birth is 12.05.1991 and as such prayed to be declared as a ‘juvenile’ and to be provided with the benefits under the Juvenile Justice (Care and Protection of Children) Act, 2000. This petition came to be rejected by order dated 02.01.2009, which is the subject matter of challenge in the present proceeding.

3.Mr. M. Kanungo, learned counsel for the accused-petitioner placed reliance on Rule-12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and in particular Sub-Rule 3 thereof which is quoted herein below.

“Rule-12(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, as the case may be, the Committee be 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, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

Mr. Kanungo, learned counsel for the petitioner submits that Rule-12(3)(b) of Juvenile Justice (Care and Protection of Children) Rules, 2007 clearly stipulates that medical opinion can only be sought for from a duly constituted Medical Board, in the absence of evidence of either (i), (ii) or (iii) of Sub-Clause (a) of Rule 12 of the said Rules.

4.It is asserted by the learned counsel for the petitioner that in the present case, admittedly the documentary evidence as contemplated under Rule-12(3)(a)(ii) of Juvenile Justice (Care and Protection of Children) Rules, 2007 i.e. date of birth certificate from the school (other than a play school) first attended, is available on record. Therefore, once such evidence is available, the same ought to have been relied upon and accepted by the learned J.M.F.C., Aska but instead of doing so, the learned J.M.F.C., sought for medical opinion when such opinion ought not have been called for in terms of the aforesaid rule.

5.Mr. K.K. Mishra, learned Additional Government Advocate on behalf of the State, fairly admitted that Rule-12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 applies to the facts of the pres