A non-Juvenile Justice Board court must conduct an inquiry to determine age when juvenility is claimed, as outlined in Section 9(2) of the Juvenile Justice Act.

JUDGMENT :

SASHIKANTA MISHRA, J.

Both, the petitioner in CRLREV No. 381 of 2022 and the appellant in CRLA No. 711 of 2002 challenge the order dated 19.07.2022 passed by learned 3^rd Addl. District & Sessions Judge, Berhampur in S.T. No.82 of 2021, whereby, the claim of juvenility raised by the accused, Srinibas Patro was allowed. The petitioner in CRLREV No. 381 of 2022 is the informant while the appellant in CRLA No. 711 of 2022 is the son of the deceased and has filed the appeal under the provisions of Section 372 of Cr.P.C.

2. In view of the order proposed to be passed it is deemed proper not to refer to the facts of the case in detail save and except that the case was registered on the basis of an F.I.R. lodged by V. Vinay (petitioner in CRLREV No. 381 of 2022) before the IIC, Gosaninuagaon Police Station, Berhampur on 14.06.2020 leading to registration of P.S. Case No.87 of 2020 under Sections 458 /394/302 of IPC . The FIR was against unknown persons, but in course of investigation, the complicity of some persons having come to light, charge sheet was submitted against them including one Srinibas Patro. Cognizance was taken and the matter was committed to the Court of Sessions for trial. Before the Sessions Court, accused, Srinibas Patro filed an application under Section 2(35) of the Juvenile Justice (Care and Protection of Children) Act, 2015 ( in short "Juvenile Justice Act") with prayer to treat him as Juvenile. Such prayer was made on the basis of the date of birth mentioned in the School Leaving Certificate issued by the Headmaster, Government Upper Primary School, Hilpatna, Berhampur. The application was objected to by the prosecution on the ground that law does not permit the School Leaving Certificate to be considered as per Section 94(2) of the Juvenile Justice Act.

3. Learned court below however found no reason to disbelieve the certificate and relied upon the same observing that there was no challenge to the authority of the School record. It was further held that when two views are possible on the same evidence, the court shall lean in favour of holding the accused to be a juvenile in borderline cases. Learned court below also referred to the provisions under Section 35 of the Indian Evidence Act to rely upon the School Leaving Certificate.

4. Heard Mr. P.K. Das, learned counsel for the petitioner in CRLREV No. 381 of 2022; Mr. Satyabrata Panda, learned counsel for the appellant in CRLA No. 711 of 2022 and Mr. P. Tripathy, learned Addl. Standing Counsel for the State.

5. Both Mr. Das and Mr. Panda have referred to the provision under Section 9 of the Juvenile Justice Act, particularly to Sub-Section (2) thereof to contend that the court below not being the Juvenile Justice Board, ought to have followed the procedure laid down in the said provision. It is further contended that the certificate was produced belatedly and in all probability was manufactured only for the purpose of claiming juvenility. It is also contended that the learned court below should have conducted an enquiry and decided the issue basing on the evidence adduced by the parties to determine the age of the accused as required by the Statute.

6. Mr. P. Tripathy while opposing the contentions raised by learned counsel referred above however fairly submits that the procedure prescribed in Sub-Section (2) of Section 9 of the Juvenile Justice Act is required to be followed if the issue of age of the accused is raised. Since the Court below is not the Juvenile Justice Board, the provision under Sub-Section (2) of Section 9 of Juvenile Justice Act should have been followed.

7. I have considered the rival submissions and have also gone t