crirevappln281.06 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 281 OF 2006 Sachin s/o Dnyanoba Chavan age 20 years, occ. education r/o Kanhapur, Tq. Wadwani Dist. Beed. .. APPLICANT VERSUS The State of Maharasthra .. RESPONDENT Mr. A.V. Patil, advocate for the applicant. Mrs. Y.M. Kshirsagar, APP for the State. ===== CORAM : A.V. POTDAR, J. DATE : 28 th SEPTEMBER 2011 ORAL JUDGMENT : 1 This revision application under section 397 r/w section 401 of the Code of Criminal Procedure is preferred questioning the legality and correctness of the order dated 27-7-2006 passed below exh. 10 in Sessions Case no. 59/2004. 2 Such of the facts as are necessary for just decision of this case can be summarised as under : crirevappln281.06 2 . One Dinkar s/o Sheshrao Chormale, father of the prosecutrix, lodged report on 9-3-2004 with Dindrud police station. On the basis of this report, offence was registered at C.R. no. 29/2004 against the applicant for offence under section 376 of the Indian Penal Code. After completion of investigation, charge sheet came to be filed before the Judicial Magistrate First Class, Majalgaon, Dist. Beed. In the routine course, trial was committed to the Court of Sessions by passing the requisite committal order and the case was numbered as Sessions Case No. 59/2004. . On 24-12-2004, an application exh. 21 was moved by the applicant wherein it is alleged that on the date of commission of offence / crime, the age of the applicant was below 18 years. It is further prayed in the application that age of the applicant may be determined and he may be declared as juvenile and his case be transferred to the Juvenile Justice Board. In support of the contentions raised in the application, applicant produced certificate of age issued by the Head Master, Madhyamik Vidyalala, Wadwani, Tq. Majalgaon, Dist. Beed, an extract of school admission in Zilla Parishad Primary School, Kanhapur, Tq. Wadwani, Dist. Beed and admission card of his SSC examination issued by the Secretary of Higher Secondary Education, State of Maharashtra, Pune. After hearing learned crirevappln281.06 3 counsel for the applicant and learned APP, the learned Sessions Judge was pleased to reject the application vide order dated 27-7-2006, which order is impugned in the instant revision application. 3 Perusal of the impugned order reveals that the learned trial Judge has observed that the record produced by the applicant cannot be considered as conclusive proof of his age on the date of commission of offence. It is further observed that during investigation, the accused was sent for ossification test and the Medical Officer concerned, after ossification test, opined that age of the accused / applicant is 20 years. 4 During the course of submissions across the bar, it is urged by learned counsel for the applicant that admittedly, on the date of alleged commission of offence, the Juvenile Justice ( Care and Protection of Children) Act, 2000 was in force and the provisions thereunder were applicable. Learned counsel further urged that this Act of 2000 was amended in the year 2006 so also rules were provided to the amended act which were framed in the year 2007. 5 At this juncture, it is necessary to advert to the observations of the crirevappln281.06 4 Apex Court in the matter of Vikram Singh vs. State of Haryana reported in 2009 (6) SCALE, 726, wherein the Apex Court has observed thus : 6 As per Rule 97(2) all the cases pending which have not received a finality will be dealt with and disposed of in terms of the provisions of the 2000 Act as amended on 22/8/2006 and 2007, Rules. It appears that the High Court judgment is of 26/5/2006 when the Rule 97(2) as applicable was not in existence as it was brought into force in 2007 ( i.e. 26 th October, 2007). 7 We are of the view that the appellant is entitled to the benefit under the provisions of 2000 Act as amended from 22.8.2006, and 2007 Rules. 6 Learned counsel for the applicant drew my attention to the provisions of section 7A of the Act of 2000 which read as follows : 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 recognised at any stage, even after final disposal of the case, and such claim shall crirevappln281.06 5 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 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. . He further drew my attention to rule 12 of the Rules of the year 2007 which reads as follows : 12 Procedure to be followed in determination of age – (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidencee by obtaining - a) (i) the matriculation or equivalent certificates, if available, and in the absence whereof; crirevappln281.06 6 (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, section 64 of the Act and these rules, no further inquiry shall be crirevappln281.06 7 conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. . Relying on the text of section 7-A and Rule 12, further emphasis was placed on rule 12(3)(a)(i) to (iii) and Rule 12(3)(b). It is urged that the text of Rule 12 (3)(a) & (b) if read together, the procedure to be followed in determination of age is given with either the Court concerned or the Board as the case may be. It is urged that under Rule 12(3)(a) (i) to (iii), the matriculation or equivalent certificate, if available, shall be produced. In compliance of Rule 12(3)(a)(ii) the applicant has produced a certificate issued by the school where he has taken education so also extract of the school admission where the applicant has taken primary education. Without testing the authenticity of these documents, merely relying on the ossification test conducted during the investigation, the learned lower court rejected the application of the applicant / accused. Learned lower court has not considered the effect of Rule 12 which speaks for procedure to be followed in determination of age of the applicant / accused who claims to crirevappln281.06 8 be juvenile, at the time of commission of offence, and entitled to the benefits under the Act of 2000 as amended in the year 2006 and Rules of 2007 framed under the Act. 7 Per contra, learned APP supports the impugned order. It is useful to refer the observations of this court in the matter of Rafiq Ahmed Saeed Ahmed vs. State of Maharashtra reported in 2009 Law Suit (Bom) 1134 wherein it is observed thus : . Juvenile in conflict with law undergoing sentence at commencement of this Act – Procedure to be followed by a Magistrate not empowered under the Act – Procedure to be followed when claim of juvenility is raised before any court. . Reliance is also placed on the observations of this court in the matter of Vikas Dnayndev Patil & ors. vs. State of Maharashtra ( Criminal Application No. 3779/2010 decided on 25-11-2010 ) wherein it is observed that while deciding the application filed by the accused / applicant who is claiming to be juvenile at the time of alleged commission of offence or crime, if the procedure as prescribed under Rule 12 of the Rules 2007 is not followed, the matter be remitted back to the Court who has passed the order, to consider it afresh and to decide in accordance with law. If this test crirevappln281.06 9 is applied to the present revision application, on perusal of the impugned order it reveals that the procedure laid down under Rule 12 of the Rules of 2007 was not followed. 8 In the result, revision application succeeds. Order impugned is hereby quashed and set aside. Matter is remitted back to the Court of Adhoc Additional Sessions Judge, Majalgaon, to decide the application exh. 10 afresh and to dispose it off in accordance with law. Rule is made absolute accordingly. 9 Applicant to appear before the lower Court on 20-10-2011. Learned counsel for the applicant undertakes that he will intimate about this order to his client. 10 Registry to send back R & P to the lower court forthwith. ( A. V. POTDAR ) JUDGE dyb