THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE V.SURI APPA RAO Criminal Appeal No.1223 of 2007 and Criminal Appeal M.P.No.2302 of 2010 Date: 25-01-2011 Between Myathari Naveen Kumar … Appellant/Accused and State of A.P., Rep.by Public Prosecutor, High Court, Hyderabad … Respondent/Complainant THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE V.SURI APPA RAO Criminal Appeal No.1223 of 2007 and Criminal Appeal M.P.No.2302 of 2010 Judgment: (per V.Eswaraiah, J.) The application Criminal Appeal M.P.No.2302 of 2010 is filed by the petitioner/accused, who is the appellant in the appeal, to direct the learned II Additional District and Sessions Judge (Fast Track Court), Medak at Sangareddy to hold an enquiry as to the age of the petitioner i.e., the accused in Sessions Case No.171 of 2006 on its file. 2. The petitioner was tried for the offences under Sections 302 and 379 IPC and he was found guilty of the said offences and was sentenced to ‘life imprisonment’ and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for one month for the offence under Section 302 IPC and to undergo rigorous imprisonment for one year for the offence under Section 379 IPC vide judgment dated 14-6- 2007 in Sessions Case No.171 of 2006 by the learned II Additional District and Sessions Judge (Fast Track Court), Medak at Sangareddy. 3. Immediately after pronouncing the judgment, the petitioner was taken into custody and was sent to Central Jail, Cherlapally. Pursuant to the said judgment, the appellant/accused is undergoing imprisonment for life. 4. During the pendency of the appeal, the petitioner filed this application to conduct an enquiry with regard to the age contending that he was a juvenile and his age was only 16 years as on the date of committing the offence, but his age was wrongly shown as 21 years in the charge-sheet and he was tried by the Sessions Judge instead of trying him before the Juvenile Court. 5. The incident took place on 19-10-2005 and as per the Study Certificate, Date of Birth Certificate and other school records, the date of birth of the petitioner is recorded as 13-6-1989 and as on the date of commission of the offence he was only 16 years, 4 months and 6 days. In support of his contention, he filed the copies of documents such as Secondary School Certificate, Community, Nativity and Date of Birth Certificate, Transfer Certificate for Intermediate Course, Bona fide cum Conduct Certificate and in all the said certificates, his date of birth is recorded as 13-6-1989. 6. Under sub-section (1) of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘the Act’), whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile as on the date of commission of the offence, the Court shall make an enquiry, take such evidence as may be necessary 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. 7. As the petitioner filed the said Certificates from the school records, this Court directed the learned Public Prosecutor to file a counter with regard to the averments made in the said application as regards the date of birth of the petitioner. 8. Pursuant to the said order, the concerned Police conducted an enquiry and submitted a report dated 13-01-2011 and verified the documents such as extract of Transfer Certificate and Admission Record from the Government Junior College, Zaheerabad, Medak district; Bona fide Certificate from Zilla Parishad High School, Patloor, Ranga Reddy district and certified that the said Certificates are genuine and his date of birth entered in the school as well as the college records as 13-6-1989. 9. In view of the said undisputed facts that the date of birth of the petitioner/accused is 13-6-1989 and the date of offence was 19-10- 2005, the age of the petitioner as on the date of commission of the offence was 16 years, 4 months and 6 days and that if that be so, as per Section 2(k) of the Act, “juvenile” or “child” means a person who has not completed the age of 18 years. Therefore, the petitioner is a juvenile. 10. Under Section 15(1)(e) of the Act, where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit, -- direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years. 11. Under Section 15(1)(g) of the Act, the maximum period that a juvenile can be sent to a special home is for a period of three years alone. As per the proviso to Section 16(2) of the Act also, the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of the Act. Under Section 15 of the Act, the maximum period to detain a juvenile either on probation or for sending to the special home is for a period of 3 years alone. As per Section 20 of the Act, the provisions of the Act are applicable even to the pending cases where a juvenile has committed an offence before the Act came into force. 12. Learned counsel appearing for the appellant/accused takes reliance on the judgment of the apex Court in DHARAMBIR v. STATE (NCT OF DELHI)[1]. The apex Court at para 15 of the said judgment held as under: “15. … … … from a 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 that 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 the commencement of the Act of 2000 and were undergoing sentences upon being convicted. … … …” 13. The State is not disputing the age of the accused as 16 years 4 months and 6 days and therefore, he is a juvenile. If that be so, the question as to what order on the sentences is to be passed for the offences committed under Sections 302 and 379 IPC. The correctness of the said judgment has not been put in issue before us. 14. Sub-section (2) of Section 16 of the Act provides that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of the Act i.e., 3 years. In the instant case, as per the information furnished before us the appellant is undergoing the actual period of sentence more than 3 years as he is in jail from the date of judgment. The date of judgment is 14-6-2007 and therefore, he is in jail for more than 3½ years. Therefore, he was in jail for more than what was the prescribed period under the Act for a period of 3 years under Section 15(g) of the Act. 15. Accordingly, while sustaining the conviction of the appellant/accused for the offences under Sections 302 and 379 IPC, we quash the sentences imposed against him for the said offences by the learned II Additional District and Sessions Judge (Fast Track Court), Medak at Sangareddy through judgment dated 14-6-2007 in Sessions Case No.171 of 2006 and the appellant/accused is directed to be released forthwith, if not required in any other case. The appeal is allowed accordingly. _____________________ V.ESWARAIAH, J. _____________________ V.SURI APPA RAO, J. 25th January, 2011. Ak THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE V.SURI APPA RAO Criminal Appeal No.1223 of 2007 and Criminal Appeal M.P.No.2302 of 2010 (Judgment of the Division Bench delivered by VE, J.) 25th January, 2011. [1] (2010) 2 SCC (Cri) 1274= (2010) 5 SCC 344