: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL WRIT PETITION NO.2348 OF 2005 Ashish Harishankar Pande ..Petitioner Versus The State of Maharashtra & Ors. ..Respondents Mr.V.M.Thorat i/b M.B.Gawade for petitioner Mr.S.R.Borulkar, P.P. with Mrs.S.D.Shinde, APP for State CORAM : J.N.PATEL & SMT. ROSHAN DALVI, JJ DATE : 30TH AUGUST, 2006. P.C.: 1. Heard the learned counsel for the parties. 2. This Petition is filed by father of one Ashish claiming that his son Ashish is a Juvenile within the meaning of The Juvenile Justice (Care and Protection of Children) Act, 2000, being aged of 16 years on the date of filing of the Petition, has been arrested and prosecuted under the provisions of MCOCA and was produced before the Special Court on 20.8.2005. Thereafter remanded to Police Custody and presently kept in Remand. It is the case of the Petitioner that at that time the age of Ashish was 17 years, 3 months and : 2 : 28 days, which contention is based on the fact that the petitioner had obtained a School Leaving Certificate which shows that the date of birth of Ashish and the said School Leaving Certificate has been tendered on 24.8.2005 and was accepted by the Asstt. Commissioner of Police but no further steps in the matter was taken. Inspite of the Petitioner requesting to the authority that they should not initiate MCOCA against his son Ashish, nobody responded to the plea of the petitioner, who is a very poor person and works as a Poojari to earn his livelihood and therefore, he was required to approach this Hon’ble Court. 3. On this petition being filed, before admitting it, this Court on 11.10.2005 passed an order in which it has been recorded that the learned PP made a statement that the State will get the petitioner’s son examined by the Medical Board of Thane Civil Hospital or Bombay and on that count this Court observed that it would dispose of the petition. On instructions from the Investigating Officer Mr. Borulkar, PP made a statement that the petitioner’s son Ashish will be kept in Remand Home and necessary care will be taken about his welfare. Therefore, this Court directed the Remand Home authority : 3 : to admit the petitioner’s son and to allow the the father i.e. Harishankar Pande and mother Asha Pande to meet the said Ashish. Thereafter on 26.10.2005 this Court issued Rule in the matter and observed that the petition deserves to be finally disposed of but due to paucity of time it came to be adjourned. While admitting the matter this court in para 5 of the said order observed that the Medical Certificate issued by the Civil Surgeon, Thane, that the said Ashish is juvenile and therefore observed that as the question whether the said Ashish will be charged under MCOCA and tried with the other accused was in issue, it will be appropriate that considering the fact that the petition is subjudice in this Court, the Police should not file the charge-sheet against the said Ashish Pande and seek extension from time to time from the court to file charge-sheet and granted liberty to the learned Counsel for the petitioner as well as P.P. to move this court after vacation and make an effort to have the matter finally disposed of. But unfortunately the matter came to be adjourned and could not be taken up for hearing. Today it has been taken up by us for final disposal. 4. At the outset, we may make it clear that we are : 4 : not dealing with the other contentions raised by the Petitioner in this Petition challenging his prosecution in MCOCA and other related issues, as in our opinion the most crucial and preliminary issue which require to be first decided is whether Ashish Harishankar Pande is Juvenile or not as defined under the Juvenile Justice (Care and Protection of Children) Act 2000. 5. The contention was raised for the first time by Ashish Harishankar Pande in this Petition which is filed by his father as Guardian that he is a juvenile and the age which is given in the title of the Petition of Ashish is 16 years, which is written by hand. The certificate on which according to the claim is based, his age is 17 years 3 months and 28 days, as on 24.8.2005 when the School Leaving Certificate was produced before the Asstt. Commissioner of Police, Dombivli Division, but we are not much concerned about the issue, as probably it is the case of the petitioner whether at the time of registration of the offence he was 17 years and 11 months and 28 days. Whatever it may, we find that the proper course which is required to be followed in such matter is provided under The Juvenile Justice (Care and Protection of Children) Act, : 5 : 2000 i.e. under Section 7 of the said Act. The Special Judge before whom Ashish was produced could have taken congnisance of the fact as to whether he is a juvenile or not and after making the necessary enquiry by permitting the petitioner and the State to lead evidence, if any, in support of their claim could come to the conclusion. If the learned Judge arrive at a finding that Ashish was a juvenile i.e. below 18 years of age on the date the offences came to be committed by him for which he came to be arrested and is proposed to be tried under MCOCA, then he shall without any delay record such opinion and forward the juvenile or the child and the record of the proceeding to the competent authority having jurisdiction over the proceeding. The competent authority in this case will be Juvenile Justice Board constituted under Section 4 of the said Act. 6. It is an admitted fact that when the said Ashish was produced before the Special Judge no such issue was raised on behalf of Ashish, though he was represented by an advocate, who applied for bail and in the application filed by the prosecution for his remand before the Magistrate, his age was also shown as 18 to 20 years. : 6 : In all probability it did not come to the notice of Magistrate or the Special Judge as to whether Ashish is juvenile or child in conflict with law and for which any enquiry is required to be made, by forwarding it to the competent authority having jurisdiction over the proceeding. Therefore, we dispose of this Petition with a direction that Ashish Harishankar Pande be produced before the Special Judge within two weeks. On the said Ashish being so produced before the Special Judge, MCOCA after giving due notice to his father i.e. Harishankar Pande, the said Ashish or Harishankar Pande can produce all the relevant documents in support of his claim that he is juvenile and his case deserves to be examined for forming an opinion as to whether he is a juvenile or not. The learned P.P. have also placed before the Special Judge the Medical Certificate, which has been issued after he was examined by the Civil Surgeon, Thane along with report, documents like ex-ray etc. of the ossification test conducted before the Certificate to that effect was issued. The learned Special Judge will take appropriate decision in the light of decision rendered by the Apex Court in the case of Ravinder Singh Ravinder Singh Ravinder Singh Gorkhi vs State of U.P. Gorkhi vs State of U.P. Gorkhi vs State of U.P. - (2006) 2 SCC (Cri.) 632 and if he is of the opinion that Ashish is a juvenile or the : 7 : child he shall without any delay record such opinion and forward the juvenile or the child along with the record of the proceeding to the competent authority i.e. Juvenile Justice Board, Bombay, having jurisdiction over the proceeding. 7. Needless to say that once the learned Special Judge records such an opinion that Ashish Harishankar Pande is a juvenile the question of prosecuting him under the provisions of MCOCA would not arise and the proceeding should then be before the Board as observed by us, which would conduct the enquiry under Section 14 and pass appropriate order. 8. The learned counsel for the petitioner submits that the petitioner may be granted liberty to move this court if he is aggrieved by the decision of the Special Judge relating to the finding whether he is juvenile or not and also on the issue as to whether MCOCA can be made applicable to Ashish. Liberty granted. 9. Rule is made absolute in the aforesaid terms. 10. The Registrar (Judcl.) forthwith forward the : 8 : copy of this order to the Special Judge, under MCOCA. (J.N.Patel, J.) (Smt.Roshan Dalvi, J.)