1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1329 OF 2008 WITH CRIMINAL APPEAL NO. 300 OF 2007 Gangaram Dushanna Dandil ...Applicant Vs. The State of Maharashtra ...Respondent Applicant present in person Ms. U.V.Kejariwal, A.P.P. CORAM: SMT. RANJANA DESAI & SHRI. R.G. KETKAR, JJ. DATED : 4TH MAY, 2009 JUDGMENT (PER SMT. RANJANA DESAI, J.) 1. Rule on the criminal application. By consent of the parties criminal application is taken up for hearing alongwith Criminal Appeal No.300 of 2007. 2. Gangaram Dushanna Dandil (appellant in appeal, hereinafter for convenience referred to as the applicant) is at present lodged in Kolhapur Central Prison. He was tried along with five others in Session Case No.680 of 2003 by 12th Ad. Hock Additional Sessions Judge at Sewri. By judgment and order dated 28th August, 2006 learned 2 Sessions Judge convicted the applicant under Sections 395, 396 and 452 of Indian Penal Code (I.P.C for short). For offence under Section 452 of the I.P.C he was sentenced to suffer Regerous Imprisonment (R.I.) for five years and to pay a fine of Rs.3000/- and in default to suffer R.I for six months. For offence under Section 395 of the I.P.C the applicant was sentenced to suffer R.I for five years and to pay a fine of Rs.3000/- in default to suffer further R.I for six months. For offence under Section 396 of the I.P.C the applicant was sentenced to suffer life imprisonment and also to pay a fine of Rs.3000/- and in default to suffer further R.I for six months. Substantive sentences were ordered to run concurrently. The appeal preferred by the applicant has been admitted by this Court. 3. The applicant preferred the instant application through jail, in which he stated that at the time when the offence was committed i.e., on 28th May, 2003 he was a juvenile. Along with this application he forwarded to this Court a bonafide certificate issued by the school where he was taking education and a Community and Nationality, date of birth certificate issued by Tahasildar, Dist: Adilabad. The applicant's case is that he was only 13 years of age when the offence was committed. 3 4. On 4th March 2009 the Division Bench of this Court directed that the applicant be got examined by medical board for ascertaining his age. After this order the applicant was examined by Civil Surgeon, Kolhapur. Ossification test was conducted on him by Dr. M.V. Phalke, Radiologist. He opined that the age of the applicant was between 19 and 20 years. Civil Surgeon, Kolhapur issued certificate dated 28th April, 2009 stating that the applicant is examined by him and that Dr. Phalke, Radiologist has opined that the applicant's age is between 19 and 20 years. Thus the Civil Surgeon and the Radiologist are unanimous on the age of the applicant. A copy of the said certificate is forwarded to the office of the Public Prosecutor, High Court, Bombay by Superintendent, Kolhapur Central Prison, Kalamba alongwith bone age evaluation of the applicant, vide letter dated 28th April, 2009. The said letter dated 28th April, 2009, alongwith certificate dated 28th April, 2009 and the bone age evaluation of the applicant are taken on record and marked “X” (colly). 5. Thus as on the date of the certificate i.e., on 28th March, 2009 the applicant was between 19 and 20 years of age. Undoubtedly therefore, when the offence was 4 committed on 28th May, 2003 the applicant was a juvenile i.e., below 18 years of age. If the applicant was a juvenile when the offence was committed, he could not have been tried by learned Sessions Judge, Mumbai. The relevant provisions of law concerning juveniles to which we shall soon make a reference provide a procedure which had to be followed. The applicant is present in the Court. From his appearance itself we are convinced that he must have been a juvenile when he committed the offence. 6. The Juvenile Justice (Care and Protection of Children) Act 2000 (J.J.Act 2000) was enacted by the Parliament inter alia to amend the law relating to juveniles by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children. 7. In Pratap Singh Vs. State of Jharkhand & Anr. A.I.R. 2005 SC 2731, the Supreme Court made it clear that the reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court. 8. The J.J.Act, 2000 was amended by the Parliament by enacting Juvenile Justice (Care & Protection of Children) 5 Amendment Act 2006 (Juvenile Justice Amendment Act, 2006 for short). 9. Section 2 (k) of the J.J.Act, 2000 as amended by Juvenile Justice Amendment Act, 2006 (for short the said Act) defines a juvenile as a person who has not completed eighteen years of age. 10. Section 2(l) thereof defines 'Juvenile in confilict with law' as a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such an offence. 11. Section 6 thereof refers to the powers of the Juvenile Justice Board (the Board for short). It states that notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in the said Act, the Juvenile Justice Board shall have power to deal exclusively with all proceedings under the said Act relating to juvenile in conflict with law. Sub- section 2 of Section 6 states that the powers conferred on the Board by or under the said Act may also be exercised by the High Court and the Court of Sessions, when the proceeding comes before them in appeal, revision or otherwise. 6 12. As per proviso (1) to Section 7-A thereof the claim of juvenility can be raised before a Court at any stage even after final disposal of the case and even if the juvenile had ceased to be so on or before the date of this Act. 13. Sub Section (2) of Section 7-A states that 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. 14. Section 15(g) is very important. It states that where a Board is satisfied that a juvenile has committed an offence then notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may make an order directing the juvenile to be sent to a special home for a period of three years. 15. The provisions referred to hereinabove make it clear that a juvenile in conflict with law cannot be tried by an ordinary criminal court. He cannot be sentenced. Even if it is found that he has committed an offence he can be sent to a special home for a period of three years only. 7 These provisions are beneficent provisions. The object of these provisions is obviously to ensure that the juvenile is not treated like an ordinary criminal. Special treatment is introduced to prevent him from becoming a confirmed offender. Considering the tender age of the juvenile in conflict with law, the above provisions seek to rehabilitate him rather than sending him to prison where there will no scope for his reformation. 16. Section 20 makes provision for pending cases. It reads thus:- “ Special provision in respect of pending cases – Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been 8 satisfied on inquiry under this Act that a juvenile has committed the offence. [Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation - In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.] 17. In this case unfortunately plea of juvenility was not raised by the applicant in the trial Court. However, in view of Section 7-A it can be raised at any stage even in an appeal. Therefore the applicant's plea of juvenility will have to be entertained. In view of Section 6(2) of the said 9 Act this Court can exercise powers conferred on the Board under the said Act in this appeal. 18. The applicant is sentenced to life imprisonment. He has already undergone 6 years imprisonment. Since the applicant did not raise the plea of juvenility wrong procedure was followed. His conviction itself is not sustainable. In view of the provisions of the said Act referred to hereinabove he applicant ought to have been referred to the Board and if the Board had come to a conclusion that he had committed the offence, the applicant could have been sent to a Special Home for a period of three years only. We are supported in this view by a judgment of the Division Bench of this Court in Criminal Application No.420 of 2008 decided on 2nd May, 2008 (Imtiyaz Hussain Mumtiyaz Sheikh Vs. The State of Maharashtra). 19. Learned counsel for applicant on instructions from the applicant states that the applicant does not want to prosecute the appeal. Hence, in the light of the provisions of the said Act and in the light of law laid down by this Court in Imtiyaz Hussain's case (supra) we pass the following order:- ORDER 10 1. The applicant has already undergone imprisonment of more than 6 years. The maximum period for which he could have been sent to Special Home is 3 years. 2. We modify the order of sentence. The sentence of life imprisonment shall stand substituted by the period of 3 years. 3. We direct that the applicant be released forthwith, if not required in any other matter. 4. Jail authorities to act on the authenticated copy of this order. 5. The appeal as well as the application are disposed of in the aforestated terms. (SMT. RANJANA DESAI, J.) (SHRI. R.G. KETKAR, J.)