6. cr appln 2549-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2549 OF 2010 Sunil Dhondiram Mane .. Applicant Vs The State of Maharashtra .. Respondent Mr. Ajay R. Joshi for the Applicant Mr. V.B. Konde-Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 7th SEPTEMBER, 2010. P.C.: 1. Heard learned advocate for the applicant and learned APP for the State. 2. The case of the applicant is that he was below 18 years of age on the date when the incident took place on 19th February, 1995. Hence, he should be given the benefit of being a juvenile. 3. The applicant was accused no. 11 in Session Case No. 44 of 1995 which was pending before Sessions Court at Pandharpur. In the said case, learned Sessions Judge by judgment and order dated 4th January, 1996 convicted the appellant under Sections 302,307, 324, 452 etc of IPC. Being aggrieved by the conviction, the applicant filed appeal in the High Court which came to be dismissed. 1 6. cr appln 2549-10.doc Admittedly, thereafter, the applicant filed S.L.P. before the Supreme Court and the said appeals came to be dismissed by the Supreme Court on 21st August, 2007. 4. The applicant claims that his date of birth is 3rd December, 1977 and the incident occurred on 19th February, 1995, thus, on the date of the incident, he was a juvenile. Hence, he is claiming benefit of Juvenile Justice (Care and Protection of Children) Act, 2000,hence he preferred an application before the Sessions Court stating that on 19th February, 1995 when the incident took place, he was a juvenile and hence, he should be given benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000. The said application came to be rejected by the learned Sessions Court by order dated 9th April, 2010. Being aggrieved by the said order, the applicant has approached this Court. 5. Learned advocate for the applicant has placed reliance on Section 7A of the Act, which reads as under: "7A. 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 2 6. cr appln 2549-10.doc 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. (2) If the court finds a person to be a 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." (Emphasis supplied) 6. On a plain reading of Section 7A, it appears that a claim of juvenility can be raised before "any" court even after final disposal of the case. This court in its decision dated 18th December 2008 in Suo Motu Writ Petition No. 1 of 1999, Sou Motu High Court on its own Motion Vs The Chief Secretary, Government of Maharashtra & Ors [Coram : F.I. Rebello & R.S. Mohite, JJ] had occasion to consider the provisions of Section 7A of the Juvenile Justice Act. After considering the provisions, the Court observed in para 2 as under: " Pursuant to directions issued, reports have been received. We find that Yerwada Central Prison, Pune based on this direction, had forwarded the cases of 3 6. cr appln 2549-10.doc juveniles who were in detention to various Sessions Courts who had convicted such persons. The learned amicus curiae points out that many of the matters are not being considered by the learned Judges on the ground that the judgment passed by them thereafter, has been confirmed in appeal before this court or have been disposed of by the learned Supreme Court. By the said order, this court directed that the Principal Sessions Judge in all the Districts in the States of Maharashtra and Goa and the Union Territories of Dadra and Nagar Haveli and Daman and Diu on receipt of application from jail superintendents or even sou motu if the application is made to them to consider the claim regarding juvenility. 7. The Supreme Court in a decision in the case of Dharambir Vs State (NCT of Delhi) and Anr. reported in (2010)5 SCC 344, observed in para 15 as under: "On conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49 of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 all persons who were below the age of eighteen years on the date of commission of the offence even prior to 1-4-2001 would be treated as juveniles even if the claim of juvenility is raised after they have attained the age of eighteen years on or before the date of commencement o the Act of 2000 and were undergoing sentences upon being convicted. 4 6. cr appln 2549-10.doc It is further observed that the claim of juvenility can be raised before any court and it has to be recognized at any stage, even after final disposal of the case. 8. Learned advocate for the applicant has placed reliance on a decision of this Court dated 2nd May, 2008 in Criminal Appeal No. 750 of 2004, Imtiyaz Hussain Mumtiyaz Sheikh Vs The State of Maharashtra [Coram : F.I. Rebello & K.U. Chandiwal, to support the claim that the plea of juvenility can be raised at any stage and any Court can consider the said prayer. 9. Admittedly, the appeals preferred by the applicant before the Supreme Court were dismissed on 21st January, 2007, hence, I was not inclined to entertain this application. However, after going through the decision in Imtiyaz Hussain and the other decisions, it appears that such a claim can be raised by an accused before a lower forum even after the appeals preferred by him are dismissed, hence, the Court below can entertain an application of this nature. 10.In view of the provisions of Section 7A of the Juvenile Justice Act and the above decisions, the learned Sessions Judge would be competent to consider the claim of juvenility raised by the applicant, hence order dated 9th April, 2010 passed by Additional Sessions Judge, 5 6. cr appln 2549-10.doc Pandharpur is set aside. The learned Sessions Judge shall consider Criminal Application No. 406 of 2009 preferred by the applicant regarding his claim of juvenility afresh. Needless to say that the learned Sessions Court will follow the provisions of Section 7A of the Juvenile Justice Act. 11.Application is allowed in above terms. [SMT. V.K. TAHILRAMANI, J.] 6 6. cr appln 2549-10.doc 7