Md. Aftab Ansari vs State of Jharkhand

Jaya Roy, J.—Petitioner has filed the instant revision application against the order dated 15.1.2010 passed by the Judicial Magistrate in connection with T.R. No. 579 of 2010 arising out of Birni P.S. Case No. 68 of 2008 & G.R. No. 1411 of 2008, whereby, the Petitioner''s application filed for declaring him juvenile, has been rejected.

The prosecution case, in brief, is that the informant Taibun Khatoon has filed a written report on 29.6.2008 stating therein that 5-6 months ago in the month of aghan when she was alone in her house as her mother had going to the field for work and her father was at Mangalore, all of a sudden Md. Aftab Ansari (the present Petitioner) aged about 20 years, came to her and locked the door from inside and committed rape upon her. It is also alleged that the accused Petitioner has given threatening her not to disclose about the incidence to any person. But after three months when she came to know that she was pregnant, she informed her mother about the indecent. Ultimately, she filed the written report before the Superintendent of Police at Birni Police Station, Giridih.

On the basis of the said written report, a case has been registered against the Petitioner namely Md. Aftab Ansari u/s 376, IPC.

The Petitioner voluntarily surrendered before the Court of C.J.M., Giridih on 24th July, 2009 and filed an application alongwith the various educational certificates claiming himself as juvenile, as according to his certificates, his date of birth is 15.5.1993. The Court below has disbelieved the documents filed by the Petitioner and referred the case of the Petitioner to the Medical Board for assessment of his age. After examining the Petitioner on 16.9.2009, the Medical Board assessed his age as 18 to 19 years.

Learned Counsel for the Petitioner submits that the Court below refused to declare him as juvenile without calculating his age properly, even according to the age assessed by the Medical Board. He has further contended that admittedly, the Medical Board has assessed his age on 16.9.2009 as 18 to 19 years. As the F.I.R. was lodged on 29.6.2008, in which, the date of the offence alleged as 5 to 6 months before the date of the submission of the F.I.R., therefore, the Petitioner was definitely below 18 years of age even on the date of lodging the F.I.R.

Learned Counsel for the Petitioner has further contended that the trial Court has assessed the age of the Petitioner by his eye-estimation which is absolutely illegal and arbitrary.

Learned Counsel appearing for the informant has contended that the trial Court after seeing the Petitioner, has given his finding that the Petitioner is an adult. He has further pointed out that the Petitioner has given birth of a child. Therefore, he cannot be treated as a juvenile. Therefore, there is no illegality in the order passed by the Court below and this revision application is fit to be dismissed.

In the impugned order, I find that the Medical Board has assessed the Petitioner''s age as 18 to 19 years on 16.9.2009. Admittedly, F.I.R. was lodged on 29.6.2008, therefore, even according to the report of the Medical Board, if the age of the Petitioner is taken as 18 on 16.9.2009, he was definitely below 18 years of age on the date of lodging the F.I.R. i.e. on 29.6.2008. Without going into the genuineness of the documents filed by the Petitioner and without considering the merit of the evidence of the witnesses examined on behalf of the Petitioner, from the medical report, it can be said that the Petitioner was juvenile on the date of the alleged occurrence and even on the date of the lodging the F.I.R. against the Petitioner. Therefore, I set aside the impugned order dated 15.1.2010 passed by the Judicial Magistrate, Giridih passed in T.R. No. 579 of 2010 and allow this revision application and also direct the Court below to send this case to the Juvenile Justice Board to proceed further according to the Juvenile Justice (Care and Protection of Children) Act.

Office is directed to send back the entire lower Court records immediately to the Court concerned.