1 APEAL.663-2007.sxw acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 663 OF 2007 The State of Maharashtra ...Appellant. Vs. Danesh Nazir Kazi ...Respondent. WITH CRIMINAL APPLICATION NO. 60 OF 2011 IN CRIMINAL APPEAL NO. 663 OF 2007 ---- Mr. Nitin Pradhan i/b Mr. Sooraj Hulke, for the Applicant. Mrs. A.S. Pai, APP for the State. --- CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. FEBRUARY 04, 2011. P.C.:- 1 This appeal has been filed by the State of Maharashtra against the order of acquittal passed in Sessions Case No.376 of 1994 by the learned Additional Sessions Judge, Pune and during the pendency of the appeal, the sole accused filed Criminal Application No.60 of 2011 praying for modification of the order dated 28.3.2007 passed in Criminal Application No.146 of 2007 as well as the order dated 26.6.2007 passed in Criminal Application No.884 of 2005. The accused further prays for 2 APEAL.663-2007.sxw directions to respondent nos.3 and 4 to renew the Passport of the applicant in accordance with the Notification dated 25.8.1993 issued by the Ministry of External Affairs, Government of India, as he has to go on an overseas assignment to Thailand at the instance of the employer i.e. M/s AZB & Partners, Advocates & Solicitors. The certificate dated 6.1.2011 issued by M/s AZB & Partners indicates that the applicant is working as an Associate with the said firm since October, 2007 and he is required to travel to Thailand for the period of four days from 3.2.2011 for the purposes of the firm’s annual retreat offsite. Having regard to the facts which are not in dispute regarding the date of birth of the applicant-accused and that he is an Advocate enrolled with the Bar Council of Maharashtra and Goa. We have heard the Criminal Appeal finally rather than granting reliefs prayed in Criminal Application No.60 of 2011. 2 As per the prosecution case, on 18.7.1994, Mrs. Ramchandani, the mother of Miss. Bharati filed the complaint of kidnapping Bharati and it came to be registered as CR No.159 of 1994. In the said complaint it was alleged that the applicant-accused had kidnapped Miss. Bharati who was aged 16 years at that time and a friend of him. On 22.7.1994 applicant- 3 APEAL.663-2007.sxw accused came to be arrested and was interrogated by the police. He purportedly expressed his willingness to show the dead body of Bharati. Accordingly, the police team went to the site at Bopdev Ghat where from the dead body of Bharati along with other articles came to be seized/recovered. On investigation, a charge sheet came to be filed on 18.10.1994 for the offences punishable under Sections 364, 366, 376, 467 read with 471, 392, 302 and 201 of IPC. The learned Additional Sessions Judge was pleased to acquit the accused from all the offences, and para 5 of the judgment and order of acquittal reads as under: “Accused Danesh gets benefit of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, vide order passed on the application at Exh.22 as accused Danesh was under 18 years of age being juvenile at the time of coincident case the accused found guilt of the offence leveled against him for awarding sentence this case will have to be referred to the board.” The learned Additional Sessions Judge has also considered the case on merits, and held that none of the charges could be proved by the 4 APEAL.663-2007.sxw prosecution against the accused. It was noted that the deceased had fallen in love with PW-6 Amar Bakar and she was missing from the house of her parents on or about 11.7.1994. 3 The only issue that is required to be considered is whether the trial court was right in holding that the accused was a juvenile and he would gets the protection under Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000. 4 The date of birth of the accused is 7.11.1977 and the date of the offence alleged was 17.7.1994. Thus, on the date of the offence the accused was about 16 years and 8 months. While the accused was facing the trial in Sessions Case No.376 of 1994, or when the charge sheet was filed against him, the Juvenile Justice Act, 1986 was applicable. The said Act was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000 which was brought into effect with effect from 1.4.2001. During the trial, he was released on bail and passed his B. Com. examination in the year 2000 and M. Com. examination in the year 2002. He completed his LL. B. degree in the year 2005 and came to be enrolled as an Advocate on 5 APEAL.663-2007.sxw 15.7.2005 with the Bar Council of Maharashtra and Goa under Roll No.MAH-2084/2005. Undoubtedly when the order of acquittal was passed, the Juvenile Justice (Care and Protection of Children) Act, 2000 was in force. 5 After the judgment passed by the Constitution Bench of the Supreme Court in the case of Pratap Singh Vs. State of Jharkhand & Anr. [2005(3) SCC 551], the Juvenile Justice (Care and Protection of Children) Act, 2000 came to be further amended, and Section 7(A) was introduced along with the substitution of Section 2(1) of the said Act, and the Juvenile Justice (Care and Protection of Children) Rules, 2007 were brought into force. As per these amendments, it is clear that the benefit of the Juvenile Justice Act would be applicable to an offender who was less than 18 years of age on the date of the offence irrespective of the fact that the offence was committed prior to 1.4.2001. Thus, the position in law is well settled in view of the decisions of the Supreme Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. [(2006) 5 ACC 584] and more particularly in view of Section 7(A) of the Juvenile Justice Act of 2000 which has been brought into force with effect from 22.8.2006 read with Rules 12 and 98 of 6 APEAL.663-2007.sxw the Juvenile Justice (Care and Protection of Children) Rules, 2007. 6 The learned counsel for the applicant-accused relied upon a recent decision of the Supreme Court in the case of Bhim@Uttam Ghosh Vs. State of West Bengal [2010(12) Scale 212]. We may usefully reproduce the observations made in para 17 of the said judgment as under: “17. In the instant case, according to the report submitted on behalf of the State, the appellant was about 15 years old at the time of the commission of the offence. The correctness of the report is not in question and, therefore, in light of the aforestated legal position, the appellant has to be held to be a juvenile, within the meaning of Section 2(1) of the amended 2000 Act and is to be governed by the provisions of the said Act.” Even more recently the Supreme Court in the case of Dayanand Vs. State of Haryana [JT 2011(1)SC 106] referred to its earlier decisions in the following cases, i) Dharambir Vs. State (NCT of Delhi) & Anr.[JT 2010(6) SC 273]; ii) Mohan Mali & Anr. Vs. State of M.P. [AIR 2010 SC 1790]; iii) Hari Ram Vs. State of Rajasthan & Anr. [JT 2009(8) SC 47. 7 APEAL.663-2007.sxw and reiterated the view as has been taken in the case of Bhim@Uttam Ghosh (Supra) by referring to the decision in Hari Ram’s case (Supra). In para 16 of the decision in the case of Dayanand (Supra), the Supreme Court has stated as under: “In view of the Juvenile Justice Act as it stands after the amendments introduced into it and following the decision in Hari Ram and the later decisions the appellant can not be kept in prison to undergo the sentence imposed by the Additional Sessions Judge and affirmed by the High Court. The sentence imposed against the appellant is set aside and he is directed to be released from prison. He is further directed to be produced before the juvenile Justice Board, Narnaul, for passing appropriate orders in accordance with the provisions of the Juvenile Justice Act.” 7 In the case of Dayanand the date of incidence was 2.2.1998 and the accused was found to be of 16 years, 5 months and 19 days. In the instant case, the applicant-accused has a better case, in as much as he has been acquitted by the trial court even on merits. We are therefore satisfied that this appeal against the order of acquittal is devoid of merits, and the same deserves to be dismissed. We agree with the reasoning set out by the trial court in support of the acquittal of the accused, even on merits, after analysing the prosecution evidence. 8 APEAL.663-2007.sxw 8 Hence, this appeal is dismissed. The bail bond executed stands cancelled. Consequently, the orders of this court dated 28.3.2007 and 26.6.2007 stand vacated. 9 Criminal Application No.60 of 2011 also stands disposed off as such. (U. D. SALVI,J.) (B. H. MARLAPALLE,J.)