1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Criminal Application No. 1399 of 2009 In Criminal Appeal No.1383 of 2002 Yogesh Nandu Gavali @ Yadav Applicant Vs. The State of Maharashtra Respondent Mr.Ghanshyam Upadhyay for applicant. Smt.V.R.Bhosale, APP for State. CORAM: B.H.MARLAPALLE & R.Y. GANOO,JJ. December 18, 2009. P.C. 1. This application has been tendered in the Court. Hence register. 2. The applicant – accused no.4 in Sessions Case No.95 of 2001 has presented this application for additional evidence so as to decide his status as a juvenile on the date of the offence i.e. 4/12/2000. The applicant has relied upon Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and 2 Rule 11 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. By placing reliance on the decision of the Supreme Court in the case of Hari Ram Vs. State of Rajasthan [2009 (6) SCALE 695], it has been submitted that the scheme of Section 7-A of the Juvenile Justice Act read with the Rules framed thereunder has retrospective effect and if even in the pending appeal the applicant could prove that he was a juvenile on the date of the offence, he would get protection so as to quash and set aside the order of conviction and sentence passed against him in Sessions Case No.95 of 2001. 3. In support of this plea of juvenility, the applicant has relied upon the school leaving certificate dated 19/12/2000 below Serial No.2768 with Registration Number of the pupil 7095 issued by the Deolali High School, 78, Dhondy Road, Deolali (Dist. Nashik). As per the said certificate the applicant was admitted in that school on 2/6/1997 and he was earlier a student of English Preparatory School, Deolali. He was admitted in VIII standard in June 1997 and he left the school on 31/7/2000 and it appears that in the examinations held in the month of April 1998, 1999 and 2000 he could not pass the VIII standard. His date of birth is claimed to be 16th September 3 1983. 4. As per the law laid down by the Apex Court in the case of Hari Ram (Supra), even if the school leaving certificate has been submitted before us, it is necessary that the date of birth of the applicant is proved by leading evidence before the Sessions Court at Nashik and in that process the record of the concerned two schools i.e. English Preparatory School, Deolali and the Deolali High School will have to be placed before the Sessions Court through the Principal / Head Master or any authorised employee of the respective schools who will be required to step in the witness box so as to prove the registers / records. Undoubtedly, the learned APP would be entitled to cross-examine these witnesses and adduce additional oral and documentary evidence, if so desired, so as to oppose the plea that the applicant was born on 16/9/1983. 5. Pending the decision on the plea of being a juvenile, the applicant prays for being released on bail on such terms and conditions as this Court may deem fit. 6. The date of offence is 4/12/2000, the school leaving 4 certificate relied upon was obtained on 19/12/2000 and despite the fact that on the record of the Sessions Court the applicant’s age was recorded as 18 years, no application was filed to declare him a juvenile either before he was released on bail or even after the Juvenile Justice Act came to be amended in the year 2000 and even during the pendency of this appeal by relying upon the judgment of the Supreme Court in the case of Hari Ram (Supra). This application is presented when the criminal appeal was taken up for final hearing and the arguments on behalf of the accused no.1 have been concluded. At the same time we wish to set out a fixed period for the Sessions Court to record evidence on the plea of the applicant regarding his date of birth and submit the findings to this Court. 7. Hence, this application is partly allowed and we direct the learned Sessions Judge at Nashik to assign to any Additional Sessions Judge, the recording of additional evidence as brought out in this application filed under Section 391 of Cr.P.C. so as to decide the claim of the applicant that he was born on 16/9/1983. The said enquiry will be conducted by allowing both the parties to lead evidence as noted hereinabove and as expeditiously as possible, and the findings so recorded shall be 5 submitted to this Court before 29th January 2010. The parties to appear before the learned Sessions Judge on 4th January 2010 and once the learned Sessions Judge assigns this application to the concerned Additional Sessions Judge, the enquiry will proceed on day to day basis. 8. The prayer for interim bail is hereby rejected. 9. Writ to go forthwith. 10. Parties to act on an authenticated copy of this order. (R.Y.GANOO,J.) (B.H.MARLAPALLE,J.)