1 wp450.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.450 OF 2011 Mehboob Sahebzaade Peerzaade. ....Petitioner Vs. The State of Maharashtra. ....Respondent. Ms. Rebecca Gonsalves, advocate for petitioner. Ms. S.V.Gajare, APP for State. CORAM:- P.V.HARDAS AND M.N.GILANI, JJ RESERVED ON:- APRIL 13, 2011 PRONOUNCED ON: MAY 6, 2011 M.N.GILANI,J. 1 Rule. Rule returnable forthwith. By consent of the parties, this Petition is heard finally at the stage of admission. 2. A communication received through jail is registered as writ petition under Article 226 of the Constitution of India. 3. In connection with the offence registered with Miraj City Police Station, District Sangli under section 302, 143, 147, 148, 149 of I.P.C. the 2 wp450.11 Petitioner was arrested on 26/6/1992. The incident is dated 9/9/1990. He was charge-sheeted in the Sessions Case No.217 of 1992, which came to be decided by the Court of Sessions, Sangli on 18/8/1993. The Petitioner was convicted and sentenced to suffer imprisonment for life. The appeal being Criminal Appeal no.539 of 1993 was dismissed by this Court. Special Leave Petition filed in the Supreme Court of India was also dismissed. When the charge-sheet was filed, age of the Petitioner was shown as 21 years. The Petitioner has now contended that on the date of offence his age was 17 years 6 months. 4 On 16/9/2010, the Petitioner filed an application before the Sessions Court at Sangli invoking provisions under section 7-A of the Juvenile Justice(Care and Protection of Children) Act, 2000. The learned Sessions Judge registered the application and proceeded to conduct an equiry in respect of the claim of juvenality raised by the Petitioner. In the application itself the Petitioner had clarified that he does not possess any documentary proof. Therefore, the learned Additional Sessions Judge directed radiological examination of the Petitioner. Professor of radiology, Padmabhushan Vasantdada Patil Govt. Hospital, Sangli opined that the age of the Petitioner was more than 25 years and less than 35/40 years on the 3 wp450.11 date of examination i.e. on 27/11/2010. 5 Learned Additional Sessions Judge observed that if age of the Petitioner is taken as 25 years on the date of offence, he ought to have been 5 years of age, which is obviously incorrect. Finally he observed that “So considering material available in inquiry when even no approximate age can be determined, I am of the view that no relief can be granted to accused by holding that his age on the day of offence was below 18 years.” He then proceeded to dismiss the application. 6 It is the contention of the Petitioner that the learned Additional Sessions Judge should have given him a benefit of doubt. Considering margin of error, his age should have been held to be below 18 years on 9/9/1990, which is the date of commission of the offence. 7 Section 7-A of the Juvenile Justice(Care and Protection of Children) Act, 2000 gives liberty to the juvenile to raise the claim of juvenality before any court and even after final disposal of the case. This is to be read in the light of the facts and circumstances of each case. This is for the reason that with the passage of time, the chances of availability of the evidence are bleaken. Thus, raising of the claim at the late stage should not 4 wp450.11 enure to the benefit of the Petitioner. It is pertinent to note that section 7A was introduced by Juvenile Justice(Care and Protection of Children) Amendment Act, 2006. It came into force with effect from 22/6/2006. The Petitioner moved the learned Additional Sessions Judge on 16/9/2010. That means the Petitioner took four years to invoke the provision of Section 7-A of the Act. 8 In the Petition addressed to the learned Additional Session Judge, the applicant in para-4 mentioned that when he was arrested, there was an eqnuiry about his age, but relevant papers were not produced before the court. From these averments there is a reason to believe that the proper enquiry was conducted about the age of the accused. Only after he was found to be an adult, he was charge-sheeted before the regular court. The other clinching circumstance is the accused throughout the trial was assisted by the counsel. After he was convicted, an appeal was carried to the High Court and thereafter, the jurisdiction of the Supreme Court was invoked by filing SLP. Had it been a case that the enquiry was conducted and the age of the Petitioner was found 17 & ½ years and still he was shown 21 years of age, in all probability, this issue would have been raised before the trial Court or before the appellate Court. 5 wp450.11 9 In this view of the matter, the opinion recorded by the Radiologist that maximum age of the Petitioner on 27/11/2010 can be 40 years being probable will have to be accepted. In the light of this, learned Additional Session Judge was justified in dismissing the application. Hence, Petition is dismissed. That being so, we do not find any merit in this petition. Petition dismissed. (M.N.GILANI, J) (P.V.HARDAS, J)