1 1567.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1567 OF 2010 IN CRIMINAL APPEAL NO.90 OF 1997 Hirabai Dadarao @ Shrikant Patole ...Applicant Versus The State of Maharashtra ...Respondent ...... Mrs.I.M.Koparkar for Applicant. Ms.M.H.Mhatre, A.P.P. for State. ...... CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. DATED:- JANUARY 21, 2011. P.C. 1. This Application is filed in a disposed of Criminal Appeal. Criminal Appeal No.90 of 1997 was filed by the Applicant against order of conviction and sentence in respect of offence punishable under Section 302 of the Indian Penal Code. The Applicant has been sentenced to undergo imprisonment for life and pay a fine of Rs.5,000/- (Rupees Five Thousand). That decision of the Trial Court came to be confirmed by dismissal of appeal on 14th July 2005. 2 1567.10 2. The Applicant has now approached this Court by way of present Application contending that the date on which offence was committed i.e. 19th January, 1994, the Applicant was a minor. In support of this assertion, reliance is placed on the affidavit of Applicant’s father Shri Bhagwat @ Bhagoji Kisan Shinde who has stated that the Applicant was born some time in 1977 and being illiterate, he did not maintain the record or birth register of the Applicant. On that assertion, it is prayed that the Court may issue direction to the jail authority to produce the Applicant before the Medical Board for age verification as per the provisions of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000. 3. The fact remains that the claim of the Applicant that she was Juvenile in conflict with law on the date of incident cannot be accepted merely on the basis of the affidavit of her father. Besides, this plea is taken by the Applicant for the first time in the present Application. It was not taken either before the Trial Court or before this Court in Appeal. The stand now taken is essentially a question of fact. To ascertain the correctness of the said stand, this Court eventually will have to order detail inquiry into the matter for which the matter will have to be referred to the concerned Sessions Court for recording of evidence to be produced by the Applicant 3 1567.10 as well as by the State to rebut the claim of the Applicant. For, Section 7-A of the Act of 2000 clearly postulate that the fact that the accused was Juvenile in conflict with law on the date of the offence can be raised at any stage even after final disposal of the case before any Court. This position has been restated by the Apex Court inter alia in Paragraph 23 of the Judgment of Hari Ram vs. State of Rajasthan & Anr. reported in (2009) 13 SCC 211. In the circumstances, we leave it open to the Applicant to approach the Sessions Court, Pune in the first instance with a formal application to give her benefit of the provisions of the Act of 2000. In that case, the Applicant will have to produce tangible evidence in support of her stand, the correctness of which will have to be tested. If during the said inquiry, it is found that the Applicant was minor on the date of commission of the offence, the Sessions Court, Pune would be competent to pass appropriate order to give effect to the rights guaranteed to the Juvenile in conflict with law. 4. Accordingly, without expressing any final opinion on the correctness of the stand of the Applicant, we dispose of this application with liberty to the Applicant to approach the Sessions Court, Pune for the relief as claimed in the Application and if such application is filed by the Applicant, we hope 4 1567.10 and trust that the Sessions Court will dispose of the same on its own merits in accordance with law as expeditiously as possible, preferably within eight weeks from the date of presentation of the Application considering the fact that the Applicant is already in jail since year 2005. 5. If the decision of the Sessions Judge, Pune is adverse to the Applicant, needless to observe that it will be open for the Applicant to question the correctness thereof before the Superior Court, if so advised. Ordered accordingly. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)