Fraud; Subodh Kumar Vs. State of Bihar [Patna High Court, 09-08-2016]

Juvenile Justice (Care and Protection of Children) Rules – Rules 12(4) – Order obtained by practicing fraud.

Order


IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

09-08-2016

Criminal Revision No.437 of 2014

Subodh Kumar son of Ashok Yadav @ Ashok Rai, resident of Village- Jaganpura P.S. Ram Krishna Nagar, Distt-Patna. …. …. Petitioner/s Versus 1. State of Bihar 2. Vijay Prakash son of Ram Naresh Prasad, Resident of Village Banwara, PS-Hilsa, Distt-Nalanda at present, Care of Anil Singh, Village-Piyaria PS-Gauri Chak (New Gajanpura), Distt- Patna. …. …. Respondent/s

Appearance : For the Petitioner/s : Mr. Manoranjan Kumar, Advocate For the O.P. No.1 : Mr. Satyavrat Verma, (APP) For the O.P. No.2 : Mr. Rama Kant Sharma, Sr. Advocate

ORDER

Petitioner is the informant of Ram Krishna Nagar P.S. Case No. 122/2009. Petitioner is aggrieved by concurrent order dated 06.11.2013 passed by Juvenile Justice Board declaring the Opposite Party No.2 to be juvenile as well as order dated 30.01.2014 passed by the District Judge (Special Judge), Vigilance, 1st Patna in Cr. Appeal No. 204/2013, dismissing the same.

2. For proper appreciation of the controversy persisting over the present episode, facts of the case is to be seen first.

3. On the Fard-e-beyan of the petitioner/informant relating to commission of murder of Binod on a trivial issue, the instant case has been registered against three accused persons namely, Om Prakash, Jai Prakash and Vijay Prakash (O.P. No.2). Accordingly, investigation commenced and after concluding the same, charge-sheet was submitted followed with order of cognizance. On account of having the offence triable by the court of sessions, Session Trial No. 494/2010 was registered after commitment wherein after appearance of all the accused, a petition was filed on 10.08.2011 on behalf of Vijay Prakash (O.P. No.2) stating therein that on the alleged date of occurrence i.e., on 01.12.2009, he was aged about 16 years 7 months and 17 days and so he was a juvenile.

4. After hearing over the aforesaid plea, the then Presiding Officer had directed vide order dated 13.10.2011 to examine the witnesses in support of his plea. Two witnesses were examined being AW-1, Shakuntala Devi, mother of Vijay Prakash (O.P. No.2) as well as AW-2, Anuj Kumar. However, during course thereof, the Headmaster remained absent and on account thereof, having been so directed, admission register of the relevant period has not been produced and so, School Leaving Certificate was disbelieved.

5. Vide order dated 24.05.2013 the learned lower court rejected the prayer but during course thereof, it has been incorporated in the order that ” Mere perusal of letter no. 4344 dated 10.08.2012, it is also clear that according to Medical Board petitioner was aged about 22 years on 09.08.2012″.

6. The aforesaid order was challenged under Cr. Revision No. 560/2013 wherein at para-7 of the petition, the aforesaid finding of the learned lower court was referred and further under ground no.IV it has been incorporated:-

IV. “For that even according to Medical Board, though the age of the petitioner was assessed as 22 years on 9.8.2012 and if one year benefit is given to the petitioner then also he is juvenile and this aspect of the matter has also not been considered and trial court erred in rejecting the claim of the petitioner of being juvenile”.

7. While making submission with regard to Cr. Revision No. 560/2013, the learned counsel for Vijay Prakash (O.P. No.2) submitted that even rejecting the School Leaving Certificate, the learned lower court should have considered with regard to presence of Medical Certificate issued by Medical Board after examining the petitioner, Vijay Prakash (O.P. No.2) which happens to be perceptible in terms of

Rules 12(4) of the Juvenile Justice (Care and Protection of Children) Rules

whereupon considering the discloser having been made by the learned lower court in his order dated 24.05.2013 as well as granting one year privilege in terms of aforesaid Rule, the status of Vijay Prakash (O.P. No.2) has been found to be that of juvenile as a result of which the order impugned was set aside and revision petition no. 560/2013 was allowed vide order dated 27/06/2013.

8. Subsequently thereof, petitioner/informant filed Cr.Misc. No. 33563/2013 whereunder apart from others, it was also averred that the finding recorded by the learned lower court under order dated 24.05.2013 that the Medical Board was constituted for ascertainment of age which submitted its report vide Letter No. 4344 dated 10.08.2012 happens to be wrong, incorrect whereupon vide order dated 07.08.2013, petitioner was directed to seek remedy by filing appropriate petition before learned court below and having been filed in pursuance thereof, as well as having been rejected by successive courts, petitioner/informant filed the instant petition in order to challenge the successive orders as indicated above.

9. After hearing the parties, first of all, genuineness of Letter No. 4344 dated 11.08.2012 has been tested and for that, the learned lower court was directed to transmit the copy of the same along with fact whether Medical Board was ever constituted for ascertainment of the age of the Vijay Prakash (O.P. No.2). From the relevant documents having been transmitted by the Juvenile Justice Board, it is evident that Letter no. 4344 dated 11.08.2012 relates with asking for permission from the Court concerned by the Jail Superintendent for transmitting the accused Vijay Prakash (O.P. No.2) who was under custody, to PMCH for treatment. Apart from this, relevant papers also show that neither the Court had directed for constitution of Medical Board nor age of Vijay Prakash (O.P. No.2) was ever directed to be ascertained. That means to say, the reason best known to the learned P.O., he had acted in careless manner and under such irresponsible activity he had incorporated the facts which never ordered nor procured and on account of such lapse at the end of learned lower court Vijay Prakash (O.P. No.2) succeeded in obtaining order on 27.06.2013 by this Court under Cr. Revision No. 560/2013 in the background of identification of acceptability of the Medical Report in terms of Rule 12(4) of the Juvenile Justice (Care and Protection of Children) Rules.

10. In likewise manner, O.P. No.2 while filing Cr.Revision No. 560/2013 was well aware since before that no Medical Board was ordered to be constituted for ascertainment of his age, even then, referred the same under para-7 of his petition as well as under IV of the grounds stick over the same. Had there been proper conduct of the Vijay Prakash (O.P. No.2) petitioner of Cr.Revision No. 560/2013, the aforesaid eventualities, that means to say, allowing of Cr. Revision 560/2013 would not have occurred.

11. That means to say, the order dated 27.06.2013 passed in Cr. Revision No. 560/2013 has been obtained by way of deception as well as fraud.

12. It is needless to say that order obtained by practicing fraud vitiates the same. In the