1 APPA 792 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.792 OF 2010 IN CRIMINAL APPEAL NO.70 OF 1995 Kalu @ Mahindra Ravindra Waghmare .....Applicant V/s. The State of Maharashtra ..... Respondent Ms.Rebecca Gonsalvez, for the applicant. Mrs.V.R.Bhosale, APP, for the State. CORAM :P.B.MAJMUDAR & ANOOP V. MOHTA, JJ. DATE : 01st OCTOBER, 2010 P.C. 1. This criminal application has been preferred in an appeal which has already been decided by this Court being Criminal Appeal No. 70 of 1995. The applicant is convicted under Sections 302, 427 and 451 of Indian Penal Code and has been awarded life imprisonment. An appeal against the said order, is dismissed by this Court by an order dated 14-02-2005. 2. By way of this application, the applicant has prayed that at the time of commission of offences, he was juvenile and was 16 years, 10 months and 30 days of age. Accordingly, a report was called for through the Principal District and Sessions Judge, Pune. The learned District Judge – 3 and Additional Sessions Judge, has submitted his report dated 2 APPA 792 of 2010 23-08-2010, which is placed on record. In view of the said report, it is crystal clear that at the time of commission of the offences, the age of the applicant was 16 years and 11 months and was juvenile in conflict with law. 3. The learned APP appearing for the State, also confirms the said aspect. The learned APP further states that on verification, it has been found that the applicant has undergone more than three years imprisonment as on today. In this connection, a reference is required to be made to Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000. Section 7-A has been introduced with effect from 22-08-2006, reads as under : - 7-A. Procedure to be followed when claim of juvenility is raised before any Court – (1) Whenever a claim of juvenility 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. 4. The learned counsel for the applicant has relied upon an 3 APPA 792 of 2010 order passed by the Division of this Court in Criminal Application No.375 of 2008, wherein the Division Bench of this Court directed that the applicant of the said case, be directed to be released forthwith if not required in any other case. The relevant observations incorporated in Para No.2 of its order, reads thus : 2. “The applicant has now filed this application under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000. The contention of the applicant is that at the time of the incident, which took place on 21st November, 2000, the applicant was a juvenile. It is submitted that when the applicant was convicted and the appeal of the applicant was dismissed on 6th July, 2006, the definition of juvenile was a person whose age was 16 years or less. By the amendment of 2006, which came into effect from 22-08-2006, a juvenile is now held to be a person who is 18 years or less. It is now submitted though the Trial Court or this Court did not consider the issue as to whether the person was a juvenile as it was not raised nonetheless considering Section 7-A of the Act of 2000 as amended. It is open to a juvenile in conflict with law to apply to this Court. Reference for that purpose is placed on the unreported judgment of this Court passed in the case of Imtiyaz Hussain Mumtiyaz Shaikh Vs/ State of Maharashtra, decided on 2nd May, 2008 in Criminal Appeal No.7510 of 2004 with Criminal Appeal No.420 of 2008. In Paragraph 10 this Court observed as under : - “On a conspectus and consideration of all these provisions it becomes clear that what is relevant is the date of offence and if that person falls within the definition of ‘Juvenile in conflict with law’ then irrespective of whether proceedings are pending or the proceedings are in appeal or revision or even if proceedings had been closed and if an application is made by the juvenile who is undergoing a sentence, then on a proper reading of Section 7-A, together with Section 20, the provisions of the Act, are applicable to such ‘juvenile in conflict with law’. To that extent, the 4 APPA 792 of 2010 judgment in Pratap Singh (Supra) considering the Amendment of 2006 will not apply to proceedings in respect of a ‘juvenile in conflict with law’ after the Juvenile Justice Amendment Act, 2006. The opening words of Section 20, therefore, clearly indicate that the definition of ‘juvenile’ is retrospective and the definition of juvenile under the Juvenile Justice Act of 2000 will be applicable law. In other words, if the child of juvenile was less than 18 years on the date of the commission of the offence, the juvenile will be covered by the provisions of the Act of 2000 together with the 2006 amendment”. It would thus be clear that even if an appeal is not pending, it is open to a juvenile in conflict with law who falls within that definition as amended, to apply and it is for this Court consider or take such other steps to examine whether such applicant was a juvenile in conflict with law at the time the incident took place. 5. The learned counsel for the applicant has relied upon an order of the Division Bench of this Court dated 4th July, 2008 passed in Criminal Application No.585 of 2008, wherein the Division Bench of this Court observed as under : - “2. The question, therefore, before us is whether considering the earlier rejection of the petitioners claim the applicant is entitled to the benefit under the Act as now in force. In the case of Imityaz Hussain (supra) we have taken the view that an application is maintainable if the applicant was below 18 years on the date of committing the offence. In other words the benefit of the amended provisions would be applicable to an applicant if such applicant was 18 years or less at the time when the offence was committed. This beneficial provisions, a part of the reformatory process can be availed off, as long as the applicant’s case was not considered and disposed off under Section 7A of the Act of 2000”. 5 APPA 792 of 2010 6. In our view, since the Division Bench of this Court has already held that such application is maintainable even if the appeal is disposed of and being a co-ordinate Bench, this Bench is bound by the view taken by the earlier Division Bench. It is also not in dispute that the applicant has undergone more than three years of imprisonment. The learned APP has confirmed the said aspect and pointed out that the applicant had already completed three years tenure in jail. We therefore, direct that the applicant be released forthwith if not required in any other offence. 7. In view of what is stated above, the criminal application is disposed of. 8. At this stage, the learned APP pointed out to the Court that subsequently the applicant has involved in other serious offences and has been arrested by the concerned police station and that at present he is in jail. It is clarified that this order shall be confined to the present appeal i.e. Criminal Appeal No.70 of 1995 and if the applicant is arrested in connection with any other offence, this order will have no application in any other case. ( ANOOP V. MOHTA, J. ) ( P.B.MAJMUDAR, J. )