Ayesha Mondal vs The State of West Bengal & Anr

None appears on behalf of opposite party no. 1 and 2 despite repeated call.

Affidavit of service shall be retained with the record. The petitioner has

challenged the order dated 29.11.2013 passed by learned Principal Magistrate,

Juvenile Justice Board, Burdwan in connection with Ausgram Police Station case

no. 67 of 2009 wherein and where under learned Principal Magistrate of Juvenile

Justice Board has held that opposite party no. 2 is a minor in terms of the

ossification test report of opposite party no.2.

A case under Section 493 / 376 of the Indian Penal Code at the instance of

the petitioner was started against opposite party no. 2 and ultimately after

completion of investigation charge sheet under Section 376 was filed against

opposite party no.2. Considering the age of opposite party no.2 learned Chief

Judicial Magistrate has transferred the case to Juvenile Justice Board for inquiry

and disposal.

The petitioner being aggrieved by such transfer of case to Juvenile Justice

Board filed revision application before this Court being CRR no. 3015 of 2011.

The specific case that was canvassed before this Court in the aforesaid criminal

revisional application is that opposite party no.2 was major at the time of alleged

occurrence. After hearing both sides learned Judge passed the following order.

"Heard the learned counsel for the parties. The matter is taken up for

hearing. It is submitted that this is a case under sections 493 / 376 of the Indian

Penal Code. It is further submitted by Mr. Chatterjee, learned counsel for the

petitioner that the victim girl is major. The accused-opposite party no.2 namely

Shamim alias Bapi Dafadar, is a minor. As per direction of the Hon''ble Court

birth certificate was filed which shows that the opposite party no.2 is a minor.

Thereafter the victim girl filed an application before the learned court below for

ossification test of the opposite party no.2. The same was rejected after hearing

both sides. Probably being influenced by the order of the Hon''ble Court the learned court below rejected the prayer for ossification test of the opposite party

no.2. It appears that ossification test is conducted scientifically and there is no

harm for conducting such test of a person through there is a contradictory order

by the court.

Considering the aforesaid position and after hearing the both sides, I think

that in the interest of justice the opposite party no.2 be placed for ossification

test. The learned court below is hereby directed to arrange for ossification test of

the opposite party no.2 as quickly as possible so that the entire truth will come

up.

Accordingly, the revisional application along with C.R.A.N. 425 of 2012 is

disposed of on contest."

Pursuant to the direction given by learned single Judge opposite party no.2

was placed before the appropriate authority for conducting his ossification test

and report was duly submitted before the Juvenile Justice Board at Burdwan.

Learned Principal Magistrate has clearly stated in his order dated 29th November,

2013, that as per the ossification test report the age of opposite party no. 2 was

ascertained as on the date of examination more than 17 years but less than 18

years. The ossification test was conducted on 12.05.2012 and the occurrence

took place on 10th May, 2009. Thus, learned Magistrate was satisfied that on the

date of occurrence opposite party no. 2 was a minor.

Learned Advocate appearing on behalf of the petitioner contended that no

documents in terms of Rule 12 of Juvenile Justice (care and protection of

children) Rules, 2007 was ever produced by opposite party no. 2 before the

Juvenile Justice Board to prove/ to show his age but the secondary evidence in

the form of ossification test, was produced before the Juvenile Justice Board and

learned Magistrate has committed grave mistake by accepting the ossification

test report as the document to ascertion the age of opposite party no.2 . It is

further submitted that learned magistrate ought to have directed opposite party

no. 2 to produce necessary documents in terms of Rule 12 of the Juvenile Justice

(care and protection of children) Rule, 2007 in order to prove the age of opposite

party no.2.

Learned Counsel appearing on behalf of the petitioner further contended

that the opposite party no. 2 used to work as a labour in 100 days work and

wherefrom it would transpire that the opposite party no. 2 was major at the time

of alleged occurrence. It is further submitted that the order passed by learned

Magistrate ought to be set aside and a direction be given to the learned

Magistrate to ascertain the age of opposite party no.2 afresh in terms of Rule 12

of Juvenile Justice (care and protection of children) Rules ,2007.

The order dated 22.02.2012 passed by learned single Judge of this Court

in CRR 3015 of 2011 clearly reveals that as per direction of the Hon''ble Court birth certificate of opposite party no. 2 namely Samim alias Bap Dafadar was

filed, which shows that opposite party no. 2 is a minor. However, for

ascertaining the age of opposite party no. 2 learned Court below was directed to

conduct ossification test of opposite party no. 2.

In terms of the aforesaid order opposite party no. 2 was examined and

ossification test was conducted on 12th May, 2012, which clearly reveals that

opposite party no. 2 was a minor on the date of occurrence i.e. on 10th May,

2009. Rule 12(3) (b) clearly reveals that 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. That clearly reveals that the intention of the legislature is to give

such benefit to the Juvenile in conflict with law.

In the case under reference the birth certificate of opposite party no. 2 was

produced in terms of the Court''s order as it appears from the order of CRR 3015

of 2011 dated 22nd February, 2012. However, to be sure of the age of opposite

party no. 2 learned single Judge directed for ossification test of opposite party no.

The result of such ossification test clearly reveals that the opposite party no. 2

was minor on the date of such occurrence. Therefore, I do not find any illegality

in the order passed by learned Principal Magistrate of Juvenile Justice Board of

Burdwan. The revisional application is thus dismissed. Having regard to the age of the case I direct learned Principal Magistrate, Juvenile Justice Board,

Burdwan to dispose of the case as early as possible preferably within one year

from the date of receipt of this order.

Let a copy of this order be forwarded to the learned Principal Magistrate,

Juvenile Justice Board, Burdwan forthwith.

Urgent photostat certified copy of this order, if applied for, be given to the

parties as expeditiously as possible