((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2407 OF 2005 IN CRIMINAL APPEAL NO.395 OF 2005 Bakish @ Bakesha Nilya Kale Applicant versus The State of Maharashtra Respondent Mr.S.P.Jakade i/by Ms.B.P.Jakhade for applicant Mrs.M.M.Deshmukh, APP. CORAM : F.I.REBELLO AND A.A.KUMBHAKONI, JJ. DATE : 16th October 2008 PC : 1. During pendency of the Appeal No.395 of 2005 the appellant Bakish @ Bakesha Nilya Kale moved an application through jail contending that he was born in March 1983 and on the date of incident on 4th October 1996 he was aged thirteen and a half years and thus is juvenile. He points out that in these circumstances, his case ought to have been transferred to the Juvenile Court. 2. Unfortunately, the judgement of Hon’ble Supreme Court in Gopinath Ghosh Vs. State of ((-2-)) West Bengal reported in 1984-SCC (Cri)-478 and in Bhola Bhagat Vs. State of Bihar reported in 1998-SCC (Cri)-135 were not taken note of by the Sessions Court though, in law, when the charge sheet shows that the accused was eighteen years old, the Court was bound to verify the age of the accused. There was total failure on the part of the Sessions Court to consider this material aspect. 3. This Court thereafter on 9th October 2006 considering the plea of the appellant, called for a fresh report regarding age as also the result of the ossification test. The ossification test was done and the report was submitted to this Court by report dated 1st November 2006. In terms of this report, the doctor conducting the ossification test set out that on the date of the test i.e. 1st November 2006, he was about 21 years of age. This matter was placed thereafter before this Court on 22nd June 2007. This Court passed an order that this could be considered at the time of final hearing of this appeal. 4. In the mean time, section 7(A) has been introduced in the Juvenile Justice (Care and ((-3-)) Protection) Act, 2000. By that amendment, the juvenile in conflict with law has been held to be a person to be below eighteen years. Earlier it was sixteen years. A Division Bench of this Court had an occasion to consider the effect of the amendment and this Court has taken a view that the amendment would apply to all juveniles in conflict with law irrespective of the date of incident and it will also apply to those who are undergoing sentence already. The only requirement being that on the date of the incident the person ws a juvenile in conflict with law. 5. In the instant case, the date of incident is 4th October 1996. The appellant was arrested on 1st November 1996. Considering the ossification test and the report, at any rate, the appellant on the date of incident could not have been more than sixteen years of age. In our opinion, therefore, this was a fit case where this Court ought to considered the fact that under the Act the juvenile in conflict with law has been in custody for more than three years. 6. Considering this finding of fact the ((-4-)) learned counsel for applicant submits that he does not press the appeal. 7. In this view of the matter, we direct that the appellant be released forthwith, if not required in any other case. 8. Criminal Application No.2407 of 2005 is disposed off accordingly. (A.A.KUMBHAKONI, J.) (F.I.REBELLO, J.) ((-5-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.395 OF 2005 Bakish @ Bakesha Nilya Kale Applicant versus The State of Maharashtra Respondent Mr.S.P.Jakade i/by Ms.B.P.Jakhade for applicant Mrs.M.M.Deshmukh, APP. CORAM : F.I.REBELLO AND A.A.KUMBHAKONI, JJ. DATE : 16th October 2008 PC : 1. As we have passed an order in Criminal Application No.2407 of 2005 directing release of the appellant considering the fact he was a juvenile having conflict with law who is in custody for more than three years, learned counsel for the appellant does not press the appeal. The appeal accordingly is dismissed as not pressed. (A.A.KUMBHAKONI, J.) (F.I.REBELLO, J.)