1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.860 OF 2010 IN CRIMINAL APPEAL NO.763 OF 2005 Jivan @ Jivalya Dama Ghatal ...Applicant. v. The State of Maharashtra ...Respondents. Mr. Eknath Sawant, adv. For the Applicant. Smt.V.B.Bhosale, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : JULY 9, 2010 P.C. 1 The applicant, who is original accused no.2 claims that he was below 18 years when the alleged incident had taken place on 8.3.1998 and, therefore, he could not be detained for more than three years. The offence of gang rape was committed on 8.3.1998 and the offence was registered on 17.3.1998. All the accused persons, including the present applicant, were arrested. They were also given bail on 13.6.2005. They were convicted for the offences punishable under Sections 376(ii)(g) and sentence of R.I. for ten years with fine of Rs. 500/- was awarded. Some sentence was also awarded for the offences punishable under Sections 323 and 506 of the I.P.C. Order of conviction and sentence was challenged in the appeal, which is still pending. The 2 applicant is in custody since the date of conviction, i.e., 13.6.2005 and thus, by this time, he has undergone imprisonment for more than five years. The applicant had made an application before the Additional Sessions Judge, Palghar through jail and it was registered as Criminal Application No.17/09. In that matter, the learned Addtional Sesions Judge, Palghar held the enquiry and gave findings by the impugned order dated 19.6.2010 that the applicant was below 18 years of age on the date of offence as his date of birth is proved to be 1.6.1980. The learned Additional Sessions Judge also submitted the report to that effect to this Court. 2 In view of Section 20 of The Juvenile Justice (Care and Protection of Children) Act, 2000, provisions of the said Act would be applicable even to the pending cases including at the stage of trial, revision or the appeal. Section 15(1)(f) and (g) read with sub-section (3) of the Act makes is clear that the Juvenile in conflict with the law may be placed under the care of any fit institution for any period not exceeding three years and he also cannot be sent to the special home for a period of more than three years. In the present case, applicant has been in jail for a period of more than 5 years. Had he been sent to the special home for juvenile, he would have been released on expiry of period of 3 three years. As the applicant has already been in jail for a period of more than five years, he is entitled to benefit of the same. Similar benefit was given by this Court in respect of original accused no.3 as per the order dated 19.11.2009 3 Therefore, application is allowed and the applicant/accused no.2 be released forthwith, if not required in any other case. Application stands disposed off accordingly. (J.H. BHATIA,J.)