1 APPLN 3779/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3779 OF 2010 Vikas Dnayndev Patil & Ors. .... Applicants. V/s State of Maharashtra ..... Respondents. Mr. A.P. Mundargi, Senior Counsel i/b Mr. Kedar J. Patil for applicants. Mr. P.S. Hingorani, APP for the State. CORAM: V.M. KANADE, J. DATE : 25th November, 2010 P.C:- 1. Heard Shri Mundargi, the learned Senior Counsel appearing on behalf of the applicants and Shri Hingorani, the learned APP appearing on behalf of the State. 2. One of the main grievances of the applicants in this application is that on the date of the offence, applicants were minors and were below the age of 18 years and, therefore, they were juveniles. The definition of “juvenile” is given under section 2(k) and (l) of the Juvenile Justice (Care and Protection of Children) Act, 2000. The learned Senior Counsel submitted that section 7-A read with section 2(k), 2 APPLN 3779/10 2(l) and Rule 12 of 2007 Rules read with section 20 of the Juvenile Justice Act, 2000 as amended in 2006 stipulates that even a juvenile who had not completed eighteen years on the date of commission of the offence is also entitled to get benefit of the Juvenile Justice Act, 2000 as if the provisions of section 2(k) had always been in existence even during the operation of the 1986 Act. In support of the said submission, he relied upon the judgment of the Apex Court in Hari Ram vs. State of Rajasthan and another1. Respondents were directed to file affidavit in reply and, accordingly, affidavit has been filed by the Police Inspector attached to Crime Branch, Sangli. In his affidavit, in para 4, he has stated that in case the applicants are found to be juvenile, their case would be separated. It is, therefore, submitted that in view of this averment made in the affidavit in reply, application may be allowed and the Trial Court may be directed to hold an inquiry regarding age of the applicants herein and if they are found to be juvenile on the date of commission of the offence, their trials may be separated and they may be referred to Juvenile Justice Board. 3. There is much substance in the submissions made by the learned Senior Counsel appearing on behalf of the applicants. The ratio of the judgment of the Apex Court in Hari Ram (supra) which is relied upon by the learned Senior Counsel appearing on behalf of the applicants, in my view, would squarely apply to the facts of the present case. In the 1 (2010) 1 SCC (Cri) 987 = (2009) 13 SCC 211 3 APPLN 3779/10 said case Hari Ram was arrested alongwith several others on 30/11/1998 for the alleged commission of offence under sections 148, 149, 302, 325 read with section 149 and sections 423/149 of the Indian Penal Code. After the case was committed for trial, Trial Court determined the age of the accused to be below 16 years on the date of commission of the offence and after declaring him to be a juvenile, directed that he be tried by the Juvenile Justice Board, Ajmer, Rajasthan. Against this order, Criminal Revision Application was filed at Jodhpur Bench of Rajasthan High Court. The High Court, after going through the material on record, came to the conclusion that the appellant was above 16 years of age and was, therefore, not governed by the provisions of the Juvenile Justice Act, 1986. In the Apex Court, it was argued that the High Court had acted in a highly technical manner and held that appellant was not a juvenile and, in the process, defeated the very object of Juvenile Justice Act, 2000 since one of the aims of the said Act was rehabilitation of juvenile offenders in order to bring them back to mainstream society and to give them an opportunity to rehabilitate themselves as useful citizens of the future. Initially, the Apex Court in Pratap Singh vs. State of Jharkhand1 has observed that section 20 of the said Act would apply prospectively and not retrospectively and, therefore, the said Act would cover earlier cases only where a person had not completed age of 18 years on the date of its commencement and not otherwise. Thereafter, section 1 (2005) 3 SCC 551 4 APPLN 3779/10 7A was introduced into the Act and Rule 12 was also introduced and section 20 was amended. The Apex Court in its judgment in Hari Ram1 (supra) in paras 38 and 39 has noted the said development having taken place after the Judgment of the Apex Court in Pratap Singh(supra). After noticing various judgments of the Apex Court and subsequent amendments, the Apex Court in paras 49, 50 and 51 of its judgment in Hari Ram (supra) has observed as under:- “49. The effect of the proviso to Section 7-A introduced by the amending Act makes it clear that the claim of juvenility may be raised before any court which shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder which includes the definition of “juvenile” in Sections 2(k) and 2(l) of the Act even if the juvenile had ceased to be so on or before the date of commencement of the Act. (emphasis supplied)”’ “50. The said intention of the 1 (2010) 1 SCC (Cri) 987 = (2009) 13 SCC 211 5 APPLN 3779/10 legislature was reinforced by the amendment effected by the said amending Act to Section 20 by introduction of the proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any court the determination of juvenility of such a juvenile has to be in terms of Section 2(l) even if the juvenile ceases to be so “on or before the date of commencement of this Act” and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed. (emphasis supplied)” “51. Apart from the aforesaid provisions of the 2000 Act, as amended, and the Juvenile Justice Rules, 2007, Rule 98 thereof has to be read in tandem with Section 20 of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006, which provides that even in disposed of cases 6 APPLN 3779/10 of juveniles in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of a juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for the immediate release of the juvenile whose period of detention had exceeded the maximum period provided in Section 15 of the Act i.e. 3 years.” The procedure which is to be followed for the purpose of determination of the age also has been discussed in the said judgment and, finally, in para 59, the Apex Court has laid down the law on this point. Para 59 of the said judgment reads as under:- “59. The law as now crystallised on a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 7 APPLN 3779/10 years on the date of commission of the offence even prior to 1-4-2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted.” The amended Rule 12 of the said Rules lays down the procedure for determination of the age, which reads as under:- 12. Procedure to be followed in determination of age.― (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or, as the case may be, the Committee shall decide the juvenility 8 APPLN 3779/10 or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the 9 APPLN 3779/10 Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. 10 APPLN 3779/10 (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” The power, therefore, to decide the question regarding the age of the juvenile is conferred on Juvenile Justice Board which is a final authority for the purpose of determining age of a person who claims to be the juvenile. This being the position, application will have to be allowed. 11 APPLN 3779/10 4. In the result, charge framed against the applicants is set aside and quashed. Applicants shall prefer an application in the Sessions Court alongwith documents on which they are relying, claiming the benefit of amended section 7-A, Rule 12 and section 20 of the said Act. Upon such application being made, District Judge shall refer the matter to the Juvenile Justice Board. The Juvenile Justice Board shall as per the provisions laid down under Rule 12 of the said Rules to determine the age of the applicants herein. 5. Application is accordingly allowed and disposed off. V.M. KANADE, J.