- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 3297 OF 2005 Saheb Sopan Kale ) Residing at and post Washi) Tehsil Bhuvan, District- ) Osmanabad. ) (Presently lodged at ) Yervada Central Prison, Pune (Through Jail) ) Applicant Vs. The State of Maharashtra ) Respondent Ms. Rebecca Gonsalves, Advocate appointed for the applicant. Mrs. S. D. Shinde, APP for the respondent. CORAM : SRI R.M.S. KHANDEPARKAR,& SRI. A.A. SAYED, JJ. DATE : JANUARY 10, 2008. ORAL JUDGMENT [ SRI R.M.S. KHANDEPARKAR, J.] . Heard. By the present application, the applicant is seeking to recall the sentence imposed on him in Criminal Appeal No. 888 of 2004 by the order dated 11th October 2004, on the ground that he was juvenile in conflict with law, on the date of the offence, and therefore, considering the provisions of - 2 - law, comprised under the Juvenile Justice (Care and Protection of Children) Act 2000, read with Juvenile Justice Act 1986, he could not have been sentenced for life imprisonment or for death but should have been ordered to be produced before the Board, in terms of provisions of law for necessary order in terms of Section 15 of the Juvenile Justice (Care and Protection of Children) Act 2000 (hereinafter called as the "Juvenile Act"). 2. Since the application was received through Jail and the applicant was not represented by the advocate, Miss Rebecca Gonsalves advocate was appointed as amicus curie in the matter. We have heard the learned advocate as well as the learned APP for the respondent in the matter. We have also perused the records including those of Criminal Appeal No. 888 of 2004. 3. It is sought to be contended that since the applicant was born on 5th March 1981, which fact is abundantly proved by the inquiry conducted with the help of the police authorities, as also found from the school - 3 - records of the applicant and further corroborated by the medical evidence, it cannot be disputed that the applicant was below 17 years of age on the date of the offence i.e. on 15-5-1997. Drawing our attention to Section 2(l), 7-A, 15 and 20 of the Juvenile Act, and relying upon the decision of the Division Bench of this Court in Umesh Dukhan Mandal Vs. State of Umesh Dukhan Mandal Vs. State of Umesh Dukhan Mandal Vs. State of Maharashtra, Maharashtra, Maharashtra, reported in 2004 ALL MR (Cri) 2004 ALL MR (Cri) 2004 ALL MR (Cri) 2137 2137 2137, the learned advocate submitted that applicant is entitled for necessary benefits under the Juvenile Act. He has been in detention for more than ten years since he was arrested and has been in jail since 24th May 1997. She has further submitted that the sentence imposed under order and judgment dated 11th October 2004 in Criminal Appeal No. 888 of 2004 should be recalled and as no purpose would be served by directing at this stage to produce the applicant before the Board constituted under the Juvenile Act, he should be ordered to be released forthwith. 4. The learned APP has fairly conceded that in terms of the inquiry conducted in the - 4 - matter, it is revealed that the applicant was born on 5th March 1981 and that therefore, he would fall in the category of "juvenile in conflict with law" on the date of commission of the offence. She has further submitted that considering the provisions of law contained in Section 20 of the Juvenile Act, and taking into consideration the nature of the offence committed by the applicant, it should be left to the Board constituted under the Act to decide about the punishment and in that regard though the applicant can be said to be entitled for the benefits under the Juvenile Act and also entitled for recall of the sentence imposed in Criminal Appeal No. 888 of 2004 along with the Sessions Case, out of which the said appeal arose, he should be directed to be produced before the Board to be dealt with in accordance with provisions of Juvenile Act. 5. It is not in dispute that the offence was committed on 15th May 1997 as well as that the applicant was born on 5th March 1981 and consequently on the date of the offence, the age of the applicant was below 17 years. It - 5 - is also not in dispute that the applicant was arrested on 24th May 1997 and since then he had been in prison. It is a matter of record that the trial in respect of the offence was conducted before the Session Court in terms of the provisions of the Criminal Procedure Code and further that Criminal Appeal No. 188 of 2004 was accordingly disposed of by judgment and order dated 11th October 2004 whereby the sentence imposed by the Session Judge was confirmed. 6. Section 2(l) of the Juvenile Act, defines the expression "juvenile in conflict with law" to mean a juvenile who is alleged to have committed an offence and has not completed eighteen years of age on the date of commission of the offence. The term "juvenile" has been defined under section 2(k) to mean a person who has not completed eighteen years of age. Section 7-A deals with the procedure to be followed when claim of juvenility is raised before any Court. Sub-section (1) thereof provides that, "whenever a claim of juvenility is raised before any Court or a Court is of the opinion - 6 - that an accused person was 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 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." Sub-section (2) thereof provides that "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." 7. Plain reading of Section 7-A of Juvenile Act would therefore reveal that the - 7 - claim of juvenility can be raised at any stage of the proceedings and even after disposal of the case. Undoubtedly, when such claim is raised, Court has to conduct the necessary inquiry to determine the age of the claimant to ascertain whether the claimant was juvenile on the date of commission of the offence. 8. Pursuant to the claim of the applicant to be juvenile, this Court by its order dated 12th October 2007 had directed an inquiry to determine the age of the applicant. Apart from directing the police authorities to verify the truthfulness of the claim of the applicant that he was born on 5th March 1981, an ossification test of the applicant was also ordered. Accordingly the applicant was subjected to such test and the police authorities have also made necessary inquiry to verify and ascertain the truthfulness of the claim of the applicant regarding the date of his birth and both the reports are clearly favourable to the applicant. 9. Since the records clearly establish that the applicant was below the age of 17 - 8 - years on the date of commission of offence i.e. 15th May 1997, obviously he would be entitled for the benefit of the provisions of law comprised under Section 7-A of the Juvenile Act. In terms of sub-section (2) thereof, the order and the sentence imposed upon the applicant has to be declared to be null and void. 10. Section 20 of the Juvenile Act reads thus- "Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance - 9 - with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. [Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation - In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.]" - 10 - Plain reading of this Section discloses that even though the Juvenile Act came into force with effect from 1-4-2001 and till that time the Juvenile Justice Act 1986 was in force, in terms of provisions comprised in Section 20 and more particularly the Explanation Clause thereof, the issue as to whether the the claimant is a juvenile or not has to be determined in terms of clause (l) of section 2 of the Juvenile Act. In Juvenile Justice Act 1986, the expression "delinquent juvenile" which corresponds to "juvenile in conflict with law" in the Juvenile Act, was defined to mean a juvenile who was found to have committed the offence and the term "juvenile" was defined to mean a boy who had attained age of 16 years or a girl of 18 years. Obviously, therefore, a person who has not completed the age of 18 years, will have to be treated as "juvenile in conflict with law", once such person is found to have committed an offence. The Division Bench in Umesh Dukhan Mandal Umesh Dukhan Mandal Umesh Dukhan Mandal’s case (supra) has held that section 20 of the Juvenile Act makes it abundantly clear that the provisions of the said Act are - 11 - retrospective in operation. The Division Bench was referring to Explanation Clause of Section 20 of the said Act. 11. In the matter in hand it is clear that since on 15th May 1997 i.e.the date of offence, the applicant was below the age of 17 years, he was "juvenile in conflict with law" and therefore, considering the provisions of Section 7-A, 2(l) of the Juvenile Act, the sentence imposed upon him by the Session Judge in Sessions Case No. 368 of 1997 and confirmed by this Court by order dated 11th October 2004 in Criminal Appeal No. 888 of 2004 has to be quashed. 12. Section 64 of the Juvenile Act which provides that, "in any area in which this Act is brought into force, the State Government shall direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government thinks fit for the remainder of the - 12 - period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub- section (2) of section 16 of the Juvenile Act, provided that the State Government, or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile." Explanation clause to section 64 specifically provides that "in all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (l) of section 2 and other provisions contained in this Act and the rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the - 13 - special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in section 15 of this Act". Section 15 of the Juvenile Act prescribes maximum sentence of 3 years. Undoubtedly Section 64 casts an obligation upon the Government to take appropriate steps in relation to a person who falls in the category of "juvenile in conflict with law" . In this case however, there was no occasion for the Government to take any such steps in relation to the applicant, as the applicant had never raised the issue of being juvenile prior to filing of the application under consideration, in fact, the said issue was not raised even at the time of disposal of Criminal Appeal No. 888 of 2004. 13. In the facts and circumstances of the case therefore, we do not find any purpose would be served in issuing the direction for production of the applicant before the Board, as it is apparent from the record that the applicant has already undergone imprisonment for more than three years. In the - 14 - circumstances, the applicant will have to be released forthwith, if he is not required in any other matter. 14. We place on record our appreciation for the assistance rendered by Miss Rebecca Gonsalves in the matter. The respondent is hereby directed to pay Rs. 2,000/- to the advocate. 15. The Criminal Application is allowed and order of sentence imposed against the applicant is hereby recalled and quashed. The applicant is directed to be released forthwith unless required in any other matter. The respondent shall pay a sum of Rs. 2,000/- to Ms. Rebecca Gonsalves, advocate appointed by the Court. The rule is made absolute in above terms. Sd/- [ R.M.S. KHANDEPARKAR, J.] Sd/- [ A. A. SAYED,J.]