1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRI. APPLICATION (APPA) NO.238 of 2011 IN CRI. APPEAL NO.250 OF 2007 (Hanumansingh and another ..vs.. State) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.B. Gaikwad, Advocate for the applicant, Smt. S.S. Jachak, APP for the respondent-State. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : 08-06- 2011 . Heard learned Counsel for the applicant/appellant/original accused and learned A.P.P. for the respondent-State. 2. The case of the applicant/appellant/original accused is that he was below 18 years of age on the date when the incident took place on 24-9-2001, hence he should be given the benefit of being a juvenile at the time of the incident. The applicant was accused No.1 in Sessions Case No.4/2002, which was pending before the Sessions Court, Buldhana. In the said case, the learned Additional Sessions Judge, Buldhana by judgment and order dated 30th March, 2007 convicted the applicant under Section 302 read with Section 34 of the Indian Penal Code. 3. Being aggrieved by the said conviction, the applicant filed Criminal Appeal No.250/2007 before this Court. This appeal has been admitted and it is now on the 2 final hearing board. At this stage the applicant has preferred the present application seeking the benefit of being juvenile. 4. The applicant claims that his date of birth is 26-3-1984 and the incident occurred on 24-9-2001, thus on the date of incident he was a juvenile, hence, he is claiming benefit of juvenile justice (Care and Protection of Children) Act, 2000. 5. The learned Counsel for the applicant has placed reliance on Section 7A of the Act, which reads as under :- “7A. Procedure to be followed when claim of juvenility is raised before any court - (1) Whenever a claim of junenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence; the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.” 3 On a plain reading of Section 7A, it appears that a claim of juvenility can be raised before “any” court even after final disposal of the case. 6. The Supreme Court in a decision in the case of Dharambir Vs. State (NCT of Delhi) and Anr. reported in (2010)5 SCC 344, observed in para 15 as under : “ On conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 all persons who were below the age of eighteen 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 is raised after they have attained the age of eighteen years on or before the date of commencement of the Act of 2000 and were undergoing sentences upon being convicted. The claim of juvenility can be raised before any court and it has to be recognized at any stage, even after final disposal of the case. 7. The learned counsel for the applicant has also placed reliance on the decision of Supreme Court in the case of Jintendra Singh and another V. State of U.P. reported in 2011 Cr.L.J. 1004. The point that the accused was juvenile was raised for the first time before the Supreme Court and the Supreme Court allowed the appellant to urge the said ground and directed that enquiry be held as to whether the accused was a juvenile or not. 8. In view of the above decision and in view of the 4 provisions of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, we are inclined to pass the following order. i) The trial Court to hold an enquiry into the question whether the applicant is a juvenile and submit a report as far as possible within three months from receiving a copy of this order. It would be open to the applicant to adduce all the necessary evidence in support of his case ii) The trial Court may summon concerned witness from the School and Gram-Panchayat or call for any other record, which is in its opinion is necessary for determination of the age of the applicant. iii) The father of the appellant to remain present before the trial Court on 16-6-2011 at 11-00 a.m. iv) The learned counsel for the applicant undertakes to inform the father of the applicant of the above fact. This order be communicated to the trial Court forthwith. The hearing of the appeal shall in the mean time stand adjourned and the appeal be listed on final hearing board on 26th September, 2011. JUDGE JUDGE pma