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Guddu Miya @ Guddu Mian vs The State Of Bihar on 27 September, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Revision No.877 of 2017
Arising Out of PS.Case No. -null Year- null Thana -null District- SARAN

Om Prakash Prasad @ Om Prakash Son of Late Vishwanath Prasad, Resident o f
Mohalla-Sahebganj, P.S. Chapra Town, District Saran.

…. …. Petitioner
Versus
1. The State of Bihar

2. Guddu Miyan @ Mohammad Guddu, Son of Sirajul MIya @ Sirajuddin Miyan,
Resident of Mohalla-Shandha Dhala, P.S. Chapra Muffasil, District saran

…. …. Respondents
with

Criminal Revision No. 968 of 2017
Arising Out of PS.Case No. -null Year- null Thana -null District- SARAN

Guddu Miya @ Guddu Mian Son of Serajuddin Mian @ Serajul Mian, R/o Village-
Sandha Dhala, P.S.- Chapra Muffasil, District- Saran (Chapra).

…. …. Petitioner
Versus
The State of Bihar

…. …. Respondent

Appearance :

(In CR. REV. No.877 of 2017)
For the Petitioner/s : Ms. Surya Nilambari, Advocate
For the Respondent/s : Mr. Bindhyachal Singh with
Mr. Ram Binod Singh, Advocates
For the State : Mr. Harendra Prasad, APP
(In CR. REV. No.968 of 2017)
For the Petitioner/s : Mr. Umesh Kumar Mishra, Advocate
For the Respondent/s : Mr. Ram Naresh Ray, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
CAV JUDGMENT
Date: 27-09-2018

Since both the revision applications arise out of Chapra

Mufassil P.S.Case No. 188 of 2015 and in view of order dated

23.7.2018 passed in Cr.Revision No. 877 of 2017, both the cases were
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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directed to be heard together, as such both the applications have been

taken up and heard together and are being disposed of by this

common judgment.

2. So far Cr. Revision No. 877 of 2017 is concerned, it has

been filed by the petitioner Om Prakash Prasad @ Om Prakash, who

is informant in Chapra Muffasil P.S.Case No. 188 of 2015, against the

judgment dated 24.7.2017 passed in Cr. Juvenile Appeal No. 35 of

2017, affirming the order order dated 6.4.2017 passed by Juvenile

Justice Board (hereinafter referred to as the „Board), Chapra in J.J.B.

No. 1531 of 2017, arising out of Chapra Mufassil P.S.Case No. 188 of

2015, registered under Section 302/34 of the Indian Penal Code, by

which the accused opposite party No.2 has been declared juvenile.

3. So far Cr.Revision No. 968 of 2017 is concerned, it has

been filed by the accused petitioner Guddu Miya @ Guddu Mian

against the judgment dated 19.8.2017 passed by Sri Ashok Kumar

Gupta, 1st Additional Sessions Judge, Saran at Chapra in Cr.

(Juvenile) Appeal No. 47 of 2017 by which he has dismissed the

appeal preferred against the order dated 26.7.2017 passed by learned

Principal Magistrate, Juvenile Justice Board, Saran at Chapra in J.J.B.

Case No. 1531 of 2017 rejecting the prayer for bail of the petitioner.

4. Prosecution case, in short, is that the informant-petitioner

has lodged a fardbeyan at Emergency Ward, Sadar Hospital, Chapra
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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alleging that there was love affair with his daughter Smriti Kumari,

aged about 23 years, and opposite party No.2 for the last 3-4 months

and on the fateful day, i.e., 10.8.2015, when she went to meet opposite

party No.2 Guddu Miyan, at his behest, he refused to marry her and

thereafter at his residence she was brutally assaulted by opposite party

No.2 and his parents and they forced her to swallow acid but she

somehow managed to flee and reached her house, where she disclosed

the incident to her parents and when her condition was deteriorating

she was brought to the Sadar Hospital, Chapra by her parents and

from where she was referred to the Patna Medical College and

Hospital, Patna for better treatment but on the way she breathed her

last.

5. On the basis of the aforesaid fardbeyan, Chapra Muffasil

P.S.Case No. 188 of 2015 was registered. The record further shows

that opposite party No.2 has taken a plea of juvenile and as such an

enquiry was conducted and in that enquiry School Admission Register

of opposite party No.2 was produced and a teacher of the said school,

has proved the same and in the said Register date of birth of opposite

party No.2 has been mentioned as 6.11.1999. Before the Juvenile

Justice Board an application was filed by the petitioner that the School

Admission Register filed by opposite party No.2 is not a valid piece of

document and genuine document in order to ascertain his age and as
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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such prayed for his age determination by conducting Ossification

Test.

6. Learned Juvenile Justice Board vide order dated 6.4.2017

passed in J.J.B. No. 1531 of 2017 has declared opposite party No.2

Guddu Miya as juvenile and assessed his age as 15 years 9 months

and 4 days.

7. Being aggrieved by the aforesaid order of Board the

informant-petitioner has preferred Cr.(Juvenile) Appeal No. 35 of

2017, which was ultimately traveled to the file of Sri Ashok Kumar

Gupta, 1st Additional Sessions Judge, Saran, Chapra, who after

hearing the parties did not find any illegality while affirming the order

of the Board and dismissed the appeal filed by the petitioner.

8. Hence, the present revision application has been filed

before this Court against the judgment of appellate court as well as the

order of the Board on the ground that the Board while assessing the

age of accused opposite party No.2 did not follow the guidelines

contained in Section 94(2) of Juvenile Justice (Care and Protection of

Children) Act, 2015 (hereinafter referred to as „2015 Act‟) and further

relied upon first the School Admission Register which is of no

sanctity in the eye of law and credibility of such document is itself

doubtful and further on the ground that no document has been

produced by accused opposite party No.2 which is permissible under
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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the 2015 Act to substantiate his claim, as such the Board could have

conducted the Ossification test for ascertaining his age and further on

the ground that the author of the School Admission Register has not

been examined nor the person on whose information the same was

entered into the Register nor the person normally in whose custody

the Register was kept has been examined, which are requirement of

Section 35 of the Evidence Act and as such the finding of JJB that

accused opposite party No.2 is juvenile is illegal and not sustainable

in the eye of law.

9. Further submission of learned counsel for the petitioner

is that voters identity card was produced which shows the age of the

accused opposite party No.2 as 21 years on 10.1.2017 and as such he

was above 18 years of age and in that background learned Board

ought to have conducted the Ossification test for determining the age

of accused opposite party No.2.

10. On the other hand, submission of learned counsel for

opposite party No.2 is that Section 94(2) itself provides that first of all

a court shall look into the school certificate or call for Corporation

certificate or Municipal authority certificate and in this case School

Admission Register was produced and the same has been proved by a

teacher of the school and for determination of age a court cannot

adopt hyper approach and for that no rovering enquiry was required
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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and being satisfied with the same the opposite party No.2 has been

declared as juvenile, moreover the voters identity card is not a

document mentioned either in Rule 12 of Juvenile Justice Rules, 2007

or Section 94(2) of 2015 Act. It has also been argued that Ossification

Test can only be made if school certificate or Matriculation certificate

Corporation or Municipal authority certificate is not available and as

such there is no illegality in the order passed by the Juvenile Justice

Board declaring him as juvenile and accordingly the appellate court as

affirmed the order of the Juvenile Justice Board and the same does not

require any interference by this Court.

11. So far provision regarding determination of age is

concerned, Section 7A of Juvenile Justice (Care and Protection of

Children) Act, 2000 (hereinafter referred to as „2000 Act‟) provides

the procedure to be followed when claim of juvenility is raised before

any court and further Rule 12 of Juvenile Justice (Care and Protection

of Children) Rules, 2007 (hereinafter referred to „2007 Rules‟)

provides for procedure to be followed in determination of age and

Rule 12(3) of 2007 Rules provides as follows :

” 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 by seeking evidence

by obtaining-

Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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(a)(i) the matriculation or equivalent certificate, 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, ………..”

12. Section 94(1)- Where it is obvious to the Committee or the

Board, based on 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

which recorded 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 the

age, (2) in case the Committee or the Board has reasonable grounds
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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for doubt regarding whether the person brought before it is a child or

not, the Committee or the Board, as the case may be, which

undertakes the process of age determination, by calling evidence by

obtaining-

(i) the date of birth certificate from the school or Matriculation

Examination or call for the certificate from the concerned examination

Board, if any, and in absence thereof;

(ii) the birth certificate given by a Corporation or Municipal

Authority or a Panchayat;

(iii) and only in absence of one and from the above, the age

shall be determined by Ossification Test or any other latest medical

age determination test conducted on the orders of the Committee or

the Board

Provided such a determination test conducted on the order of

the Committee or the Board shall be completed within 15 days from

the date of such order

(3) the age recorded by the Committee or the Board to be aged

of the person so brought before it shall, for the purpose of this Act, be

deemed to be the true age of that person.

Provisions of Section 7A of 2000 Act and Rule 12 of Juvenile

Justice Rules 2007 are almost similar to the provisions contained in

Section 94 of 2015 Act. In the present case, occurrence took place on
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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10.8.2015, whereas 2015 Act came into force with effect from 1st

January, 2016. However, an enquiry was conducted in the year 2017

as such a question arises as to whether it will be governed by 2000

Act and Rule 12 of 2007 Rules or by the provisions of 2015 Act.

Since the provisions are almost similar, it will not make any

difference so far merit of the case is concerned. Section 94(2)

provides that a Committee or Board as the case may be shall

undertake a process of age determination evidence for calling

evidence obtaining (i) date of birth certificate from the School or

Matriculation certificate or call for certificate from the concerned

examination Board, if any, and in absence thereof birth certificate

given by the Corporation or Municipal Authority or Panchayat and

only in absence of aforesaid two documents the age shall be

determined by Ossification Test on the orders of the Committee or the

Board.

13. On close scrutiny of the provisions of Section 7A of 2000

Act, Rule 12 of 2007 Rules as well as Section 94 of 2015 Act it

appears that the provision for procedure to determine the age and the

guidelines for that is similar in 2000 Act and 2007 Rules or under

2015 Act. In the present case though the occurrence took place on

10.8.2015 but the enquiry was conducted in the year 2017 whereas

2015 Act came into force from 1.1.2016, so the question arises as to
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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whether it will be governed by 2000 Act, 2007 Rules or 2015 Act.

However, since the provision is almost similar it will not make any

difference so far procedure for enquiry is concerned and both Rule 12

of 2007 Rules and Section 94(2) of 2015 Act provide for obtaining

date of birth certificate from the school first attended or matriculation

certificate or from the certificate of examination board and in absence

of both birth certificate is given by corporation or municipal authority

or panchayat and only in absence of the aforesaid two documents, as

stated above, it provides for determination of age by Ossification Test

on the orders of the Committee or the Board.

14. So far submission of learned counsel for the petitioner that

author of the school admission register nor the basis of the entry in

admission register nor information on which the entry was made has

been brought on the record and as such determination of age by the

Board suffers from illegality and impropriety, it is settled legal

position that an offender was a juvenile or not on the date of

commission of offence is essentially a question of fact and that can be

determined as per the provisions contained in Section 94 of 2015 Act

or Rule 12 of 2007 Rules. The Hon‟ble Apex Court in the case of

Jyoti Prakash Rai vs. State of Bihar : (2008) 15 SCC 223 held that

Juvenile Justice Act, 2000 is indisputably a beneficial legislation, but,

however the principles of beneficial legislation are to be applied only
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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for the purpose of interpretation of the Statue and not for arriving at a

conclusion as to whether a person is Juvenile or not and held as

follows :

“The 2000 Act is indisputably a beneficial legislation.

Principles of beneficial legislation, however, are to be applied only for

the purpose o interpretation of the statute and not for arriving at a

conclusion as to whether a person is juvenile or not. Whether an

offender was a juvenile on the date of commission of the offene or not

is essentially a question of fact which is required to be determined on

the basis of the materials brought on records by the parties. In absence

of any evidence which is relevant for the said purpose as envisaged

under Section 35 of the Indian Evidence Act, the same must be

determined keeping in view the factual matrix involved in each case.

For the said purpose, not only relevant materials are required to be

considered, the orders passed by the court on earlier occasions would

also be relevant.”

Further Hon‟ble Apex Court in the case of Ravinder Singh

Gorkhi vs. State of U.P. : (2006) 5 SCC 584 has held as follows :

“Determination of the date of birth of a person before a court of

law, whether in a civil proceeding or a criminal proceeding, would

depend upon the facts and circumstances of each case. Such a date of

birth has to be determined on the basis of the materials on records. It
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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will be a matter of appreciation of evidence adduced by the parties.

Different standards having regard to the provision of Section 35 of the

Evidence Act cannot be applied in a civil case or a criminal case.”

And it has further been held as follows :

“The age of a person as recorded in the school register or

otherwise may be used for various purposes, namely, for obtaining

admission; for obtaining an appointment; for contesting election;

registration of marriage; obtaining a separate unit under the ceiling

laws; and even for the purpose of litigating before a civil forum e.g.

necessity of being represented in a court of law by a guardian or

where a suit is filed on the ground that the plaintiff being a minor he

was not appropriately represented therein or any transaction made on

his behalf was void as he was a minor. A court of law for the purpose

of determining the age of a party to the lis, having regard to the

provisions of Section 35 of the Evidence Act will have to apply the

same standard. No different standard can be applied in case of an

accused as in a case of abduction or rape, or similar offence where the

victim or the prosecutrix although might have consented with the

accused, if on the basis of the entries made in the register maintained

by the school, a judgment of conviction is recorded, the accused

would be deprived of his constitutional right under Article 21 of the

Constitution, as in that case the accused may unjustly be convicted.”
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15. However, this Court is of the opinion that at the same time,

a mere decision as to the age of the offender at the time of the offence,

of either being less or more than 18 years, can seal the fate of a

person, the courts are therefore expected to decide the issue with

utmost care and sensitivity, involving meticulous deliberation and

diligence. The courts must carefully scrutinize the documentary

evidence in support of the offender‟s claim of juvenility, placed on

record by him. The court is not to act as a mute spectator to blindly

trust the matriculation or school certificates produced by the offender

but must make every endeavour to ascertain the genuineness of such

documents by directing the offender to lead evidence in support of it.

Such degree of care and caution to be exercised by the courts may

vary from case to case, not to dwell so as to threadbare examine every

document but also not to let the offender take a blanket protection

under the said Act.

16. In the present case, accused opposite party No.2 has been

declared juvenile on the basis of the School Admission Register and

the School Admission Register discloses that on 30.9.2007 the

opposite party No.2 has admitted into the school in Class-I and his

date of birth has been mentioned as 6.11.1999 but column of the

father‟s signature and parents signature is blank. Moreover, the

School Admission Register has been proved by a teacher of the said
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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school, Sri Sunil Kumar but no person has been examined to prove as

to who has made the entries in the register and there is absolutely

nothing on record to show what is the basis of entry regarding his date

of birth as to whether it has been entered into on the basis of

admission form or on the information supplied by his father or parents

and without considering the above facts, accused opposite party No.2

has been declared juvenile and as such, to my opinion, the finding

arrived at on enquiry suffers from patent illegality and impropriety.

17. Considering the above, to my opinion, the matter requires

reconsideration.

18. Accordingly, Cr. Revision No. 877 of 2017 is allowed. The

impugned judgments of both the courts below are set aside. The

matter is remitted back for enquiry for determination of age of

opposite party No.2 as per the provisions contained in 2015 Act or

under 2007 Rules after a detailed enquiry and the informant be given

a chance to participate in that enquiry to determine the age of opposite

party No.2. However, only in the case of absence or failure to produce

the documents relating to first two clauses of the provisions, i.e.,

certificate of age granted by school or Matriculation certificate or

certificate of Corporation or Municipal Authority, Ossification Test

can be held by a Medical Board. It is also directed that the enquiry

must be completed within 30 days.

Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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19. So far Cr.Revision No. 968 of 2017 is concerned, in which

petitioner is the accused who is opposite party No.2 in Cr.Revision

No. 877 of 2017, submission of learned counsel for the accused

petitioner is that the petitioner is in custody since 14.12.2015 and he

has been declared juvenile and found his age about 15 years 9 months

4 days at the time of occurrence and at best he can be convicted and

sentenced for three years, out of which he has already remained in

custody for almost two years nine months. Further submission is that

the Social Investigation Report is also not clear and finding of both

JJB and appellate court that he is not of good character and his

companion is also not good and if he is released he will be exposed to

the physical, moral and psychological danger is without any report

and based on surmises and conjectures.

20. On the other hand, learned counsel for the informant has

submitted that the order of J.J.B. is just and proper rejecting the prayer

for bail as there is allegation against him of administering acid to the

daughter of the informant, who was pregnant and due to that she died

and moreover Social Investigation Report is also not in favour and as

such he does not deserve bail.

21. No doubt, the petitioner accused Guddu Miya is found to be

juvenile and found to be aged 15 years 9 months and he has remained

in custody for about 2 years 9 months but considering the discussions
Patna High Court CR. REV. No.877 of 2017 dt.27-09-2018

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made above and as the finding of JJB and appellate court regarding

determination of juvenility has been set aside, I am not inclined to

grant bail to the petitioner Guddu Miya at this stage. However, once

the enquiry is concluded and petitioner is found to be juvenile, he may

move before the JJB for bail, who shall consider the same on the basis

of the material available on record and as well as the fact that he has

remained in custody for about 2 years 9 months and dispose of the

prayer for bail.

22. In the result, Cr.Revision No. 877 of 2017 is allowed and

impugned judgment of appellate court and order of JJB are set aside

and matter is remitted back to the learned JJB for considering afresh

as per direction as made above. So far Cr.Revision No. 968 of 2017 is

concerned, the same is dismissed with above observation.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE 11.9.2018
Uploading Date 27.9.2018
Transmission 27.9.2018
Date

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