((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.696 OF 2008 IN CRIMINAL APPEAL NO.736 OF 2000 Ranjeet Bahuku Mukhiya Applicant versus State (Coloba Police Stn.) Respondent Dr.Yug Mohity Chaudhary for applicant. Mrs.A.S.Pai, APP. CORAM : BILAL NAZKI AND A.A.KUMBHAKONI, JJ. DATE : 27th August 2008 PC : 1. This is an application filed by a convict in Sessions Case No.1466 of 1995 wherein the petitioner was convicted for several offences and for life imprisonment. It is submitted that the petitioner has been in jail for last eleven years. After conviction he filed an appeal before this Court which has been dismissed and the judgement of conviction and sentence passed by the learned Sessions Judge has been upheld in Criminal Appeal No.736 of 2000. The appeal was disposed off by this Court on 7th February 2006. ((-2-)) 2. Now this application has been filed seeking benefit of the amendments made in the Juvenile Justice Act, 2000. There is no controversy about maintainability of this application as by virtue of Section 7(A) of the said Act, applications can be filed even in the decided and finally concluded cases. 3. The case of the petitioner is that on the date of offence which is 9th September 1995, the petitioner was below 18 years of age and the learned Sessions Judge considered his case as to whether he is a juvenile or not on the basis that whether he was below 16 years as on 9th September 1995, because law, at the time when the petitioner was tried, law was that the benefits under the Juvenile Justice Act could be available only to those persons who were below 16 years of age on the date of committing an offence. 4. The law has been changed retrospectively and there are judgements of the Supreme Court to the effect that amended provisions of the Act would apply even to the cases which have already been decided. Therefore, it is ((-3-)) contended by the counsel for the petitioner that this application be allowed as according to him the petitioner had not completed the age of 18 years as on 9th September 1995. That is the date of committing an offence. 5. The learned Sessions Judge, during trial, had some doubts whether the petitioner was entitled to the benefits under Juvenile Justice Act or not. The petitioner himself disclosed that his age was eighteen years. However, the prosecution informed the learned Sessions Judge that the Police had on its own conducted the ossification test of the petitioner on 11th September 1995 i.e. two days after the occurrence of the incident the petitioner having been arrested on the day of offence and the Doctor had opined that the petitioner was aged about 18-19 years. 6. The learned Sessions Judge has also finally given a finding of fact that the petitioner on the date of occurrence of the incident was between 18 and 19 years of age which is termed as approximately 18. 7. The learned counsel for the petitioner ((-4-)) submits that the State of Maharashtra has framed Rules being Maharashtra Juvenile Justice (Care and Protection of Children) Rules, 2002. Rule 6 thereof lays down the procedure to be followed by the Medical Board for assessing the age of juveniles. Sub Rule 5 of Rule 6 provides thus:- "(5) In every case concerning a juvenile, the Board shall either obtain- (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificates, if available; and (iv) in the absence of (i) to (ii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board." 8. The learned counsel for the petitioner submits that birth certificate of the petitioner was not available. Since he had not gone to school at any point of time in his life, therefore, the school certificate of his age was not available. Therefore, his case is governed by clause (iv) of Rule 6(5) of the Rules i.e. his age had to be determined in accordance with medical opinion by a duly constituted Medical Board subject to margin of ((-5-)) one year. 9. A bare perusal of this clause would show that medical opinion of a constituted Board that means a board constituted under the Rules has to be taken and that opinion can be taken as final age of the person concerned and in deserving cases for the reasons to be recorded by the medical board, one year’s margin may be given. 10. Therefore, in our view, this rule would not apply in the present case because at no stage the petitioner had been sent to medical board duly constituted under the Rules and there was no opinion of the medical board. Therefore, margin of one year cannot be given to the petitioner. 11. The petitioner disclosed his age as 18 years even before the Doctor who conducted his ossification test. The ossification report was finally accepted by the Trial Court as well as High Court in the appeal and the appeal court came to be conclusion that the petitioner was of 18 years of age on the date of committing offence. Therefore, the argument canvassed by ((-6-)) the counsel for the applicant that since the age of petitioner as on 11th September 1995 was between 18 and 19 years, therefore, if margin of one year is given to him in terms of sub rule (iv) of rule 6(5) of the Rules, he will be treated as between 17 to 18 years, cannot be accepted at all. Even if we accept that a margin has to be given to the petitioner of one year, that margin has been given by the Medical Board or Doctor himself. When the Doctor stated that the age of the petitioner was between 18-19, such benefit has alreladybeen granted to the petitioner. 12. Even the rule to which a reference has been made by the petitioner suggests that this is not the power of the Court to give margin. This power is to be exercised by the duly constituted medical board for which it has to give reasons and that too in deserving cases only. 13. Learned counsel has referred to various judgements of this Court viz. :- (i) Balu v/s State of Tamil Nadu - 2008-Cri.L.J.-2666-SC; ((-7-)) (ii) Imtiyaz Hussain Mumtiaz Sheikh v/s State of Maharashtra, unreported judgement of Bombay High Court dtd.2.5.2008 in Crim.Appeal No.750 of 2004; (iii) Terrence John D’Souza v/s State of Maharashtra, unreported judgement of Bombay High Court dtd.4.7.2008 in Cri. Application No.585 of 2008 in Cri.Appeal No.765 of 2002; (iv) Shivaji Mahadeo Hulage v/s State of Maharashtra unreported judgement of Bombay High Court dtd.16.6.2008 in Cri. Appln. No.375 of 2008; (v) Saheb Sopan Kale Vs. State of Maharashtra, unreported judgement of Bombay High Court dtd.10.1.2008 in Cri. Appln. No.3297 of 2005; (vi) Pratap Singh v/s State of Jharkhand, AIR-2005-SC-2731; (vii) Md.Zakir Vs State of Maharashtra ((-8-)) 2008-All MR (Cri) 1680. We do not find these judgements are applicable to this case as the High Court has already held that the petitioner’s age was 18 years at the time of committing an offence. Similarly, the judgements of the Supreme Court would not apply as in this case the question of age has been concluded by the judgement of Trial Court upheld by the High Court. 14. For all these reasons we do not fine merits in this petition. It is accordingly dismissed. (BILAL NAZKI, J.) (A.A.KUMBHAKONI, J.)