1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Application No.1096 of 2009 IN Criminal Appeal No.786 of 2009 Shri Dilip Ramesh Shirsath .. .. Applicant (Orig.Accused) v/s. The State of Mah. .. .. .. Respondent (Orig.Complainant) Mr.M.S. Karnik for Applicant. Mrs.A.A. Mane, APP for State. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 26th November 2009 P.C. : 1.The Applicant is the original accused, who has been convicted by the learned Sessions Judge, Niphad, District Nashik, dated 17.7.2009, for offences punishable under Sections 376 and 506 of the Indian Penal Code (IPC) and sentenced to suffer imprisonment for 5 years and to pay a fine of Rs.1000/- and in default, simple imprisonment for further 6 months. The prosecutrix/victim in the case was a child of 7 years of age on the date of the incident. The incident took place on 6.1.2000. 2.The accused claims to be a juvenile on that date. His 2 birth date is seen from his school records. His School Leaving Certificate has been produced by the Applicant himself as also the prosecution. It has been accepted by the State. The date of birth of the Applicant in the School Leaving Certificate is 21.10.1982. The Applicant was, therefore, about 17 years and 2 months old on the date of the incident. He would be a juvenile under the Juvenile Justice (Care and Protection of Children Act), 2000 (the 2000 Act). The impugned judgment has been rendered on 18.7.2009 for the incident which took place on 6.10.2000. At the time of the incident, the Juvenile Justice Act, 1986 (the 1986 Act) was in force. The 2000 Act came into force on 1.4.2001. Hence, the learned trial Judge has applied the 1986 Act and not the 2000 Act to the Applicant. 3.The Applicant can claim juvenility before he reaches 18 years of each. Under Section 7-A of the 2000 Act, the procedure to be followed when a claim of juvenility is raised before any Court before which such a claim is made is to make an inquiry and upon being satisfied, is required to forward the juvenile to the Juvenile Justice Board (Board) for passing appropriate orders and sentence in respect of the juvenile. Since the claim can be raised before any Court at any time, it can be raised in Appeal also. The date of commission of 3 the offence is the relevant date to be considered. The Applicant has been found to be a juvenile to the satisfaction of the trial Court. He has now raised a claim that he would require to be forwarded to the said Board for the appropriate sentence and that sentence already passed against him is required to be accordingly revised. 4.Mr.Karnik on behalf of the Applicant has drawn my attention to a Division Bench judgment of this Court dated 2.5.2008 in the case of Imtiyaz Hussain Mumtiyaz Sheikh vs. The State of Maharashtra (Criminal Appeal No.750 of 2004 with Criminal Application No.420 of 2008) in which the applicability of Section 7-A to all cases pending before all the Courts is considered. Under that judgment, Section 20 of the 2000 Act has also been considered. It has been held that under Section 20 when the proceedings are pending before the 2000 Act came into force, they would continue. If upon completion, the person, who claims to be a juvenile, is to be convicted, the provisions of the 2000 Act will apply and the directions or orders will have to be passed by the Board to whom that juvenile would require to be sent. The Board would have the power to review orders and pass appropriate orders. Consequently, even after the trial and in Appeal, when an application is made under Section 7-A read with Section 20 of the 2000 4 Act, the person claiming juvenility would have to be treated as a juvenile in conflict with law. 5.Since the Applicant is seen to be a juvenile in conflict with law, this Application for being released on bail cannot be considered as drafted. However, upon seeing the facts of the case and the aforesaid law, the Applicant is required to be referred to the Board. The findings of conviction recorded by the learned Sessions Judge, Niphad, District Nashik, shall remain. The sentence imposed upon the Applicant may be reviewed/revised by the Board in accordance with law. Any directions or sentence may be passed under Section 15 of the 2000 Act. 6.It is seen that in this case the Applicant claims to be a juvenile who is in conflict with the law. The victim of his offence is also a juvenile in need of care and protection. The victim child upon whom the offence punishable under Section 376 of the IPC has been committed was 7 years of age on the date of the incident. She deserves to be protected at-least as much as the Applicant himself. It is, therefore, clarified, and Mr.Karnik on behalf of the Applicant fairly concedes, that the Applicant shall not come in contact with the victim child upon the sentence being reviewed or upon he being released from the detention 5 of the Board, upon considering his case on merits. 7.It is further clarified that the Applicant, as the juvenile, has undergone a sentence of only about 4/5 months. The Applicant, if released from the ordinary prison where he is now in custody, shall be directly handed over to the Board, to serve the detention period and/or any other order that may be required to be passed. Consequently, the Applicant is at present not released on bail. The Application to that extent is rejected. 8.It is also clarified that upon the orders being passed by the Juvenile Justice Board under Section 15 of the 2000 Act, the Applicant shall have liberty to withdraw the Appeal. 9.Application disposed of accordingly. (SMT.ROSHAN DALVI, J.)