AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.137 OF 2009 ALONG WITH CRIMINAL APPLICATION NO.561 OF 2009 Jatish K.C. Tambi ... Appellant Vs. The State of Maharashtra ... Respondents Mr. Arfan Sait, appointed advocate for the applicant. Ms. P.H. Kantharia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATED : 11TH FEBRUARY, 2010. P.C. :- 1. The appellant is at present lodged in Nashik Road Central Prison. He was tried in the Court of IInd Ad-Hoc Additional Sessions Judge, Thane in Sessions Case No.4 of 2002 for offences punishable under Sections 302, 392 and 404 of the Indian Penal Code (for short, “the IPC”). By judgment and order dated 31/7/2004, learned Sessions AJN 2 Judge found the appellant guilty of the offence punishable under Section 302 of the IPC. He sentenced him to suffer RI for life. The appellant was also convicted under Section 392 of the IPC and was sentenced to suffer RI for five years. He was also convicted under Section 404 of the IPC and sentenced to suffer RI for one year. The substantive sentences were to run concurrently. Being aggrieved by the said judgment and order, the appellant has preferred the instant appeal. The appellant has sent an application through jail stating that when he committed the offence, he was a juvenile and, therefore, he could not have been tried by learned Sessions Judge. He, therefore, prayed that he may be released from jail. 2. On 22/6/2009, the Division Bench to which one of us (Smt. Ranjana Desai, J.) was a party, directed the Sessions Judge, Thane to conduct an inquiry to find out whether the appellant was a juvenile when the offence was committed i.e. on 18/5/2001. The Bench directed that the appellant be examined by a competent doctor and a report was called AJN 3 for. Pursuant to this court’s order, a report was submitted. However, the Division Bench presided over by Justice J.N. Patel, before whom the report was produced felt that that the enquiry was not property conducted as required under the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by the Juvenile Justice (Care & Protection of Children) Amendment Act, 2006 (for short, “the said Act”). The Bench felt that the exercise contemplated under Section 6(2) read with Section 7-A of the said Act be conducted and the matter was sent back to the trial court for fresh enquiry. 3. Accordingly, a fresh enquiry was conducted and a report is submitted to this court. The report is dated 1/2/2010. A copy of the report has also been handed over to Mr. Sait, advocate appointed for the appellant and Ms. Kantharia, learned A.P.P. for the State. We find that learned judge has now conducted an indepth enquiry. Medical examination has also been conducted and it appears that indeed when the offence was committed, the appellant was AJN 4 a minor. In view of this, in our opinion, the law must take its own course. 4. The law is well settled by catena of judgments of the Supreme Court which has been followed by this court also. In Pratap Singh v. 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. 5. Section 2(l) of the said Act defines “juvenile in conflict with law” as a juvenile who is alleged to have committed an offence and who has not completed eighteen years of age as on the date of commission of such an offence. Section 6 of the said Act, which refers to the powers of the Juvenile Justice Board (for short, “the Board”) 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 Board shall have power to deal AJN 5 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. Proviso (1) to Section 7-A permits any person to raise the claim of juvenility 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 commencement of the said Act. 7. Section 15(g) 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. AJN 6 8. Thus, it is 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. Section 20 of the said Act makes provision for pending cases. Explanation thereof states that 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. 9. Unfortunately, the appellant did not raise the plea of juvenility in the trial court. It was raised, for the first time, in this court and as we have noted, the report submitted by learned Sessions Judge pursuant to direction given by us AJN 7 categorically states that when the offence was committed, the appellant was a juvenile. The appellant has been in jail for about 8 years. As per the law, he could have been referred to the Board and if the Board had come to a conclusion that he had committed the offence, the appellant could have been sent to a Special Home for a period of three years only. In view of this, in our opinion, he should be released forthwith. Hence, the following order. ORDER 10. We modify the operative part of the impugned judgment and order dated 31/7/2004 passed by IInd Ad-hoc Additional Sessions Judge, Thane in Sessions Case No.4 of 2002 and set aside the order of sentence. Conviction of the appellant under Section 302 is confirmed. Since he has undergone imprisonment for more than 3 years and since the maximum period for which he could have been sent to Special Home under Section 15 of the said Act is 3 years, AJN 8 we direct that the appellant - Jatish K.C. Tambi be released from custody forthwith if not required in any other case. 11. The appeal as well as the application are disposed of in the aforestated terms. [MRS. RANJANA DESAI, J.] [MRS. MRIDULA BHATKAR, J.]