Bombay High Court
Vikas Dnayndev Patil & Ors vs State Of Maharashtra on 25 November, 2010
Bench: V.M. Kanade
1
APPLN 3779/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.3779 OF 2010
Vikas Dnayndev Patil & Ors. .... Applicants.
V/s
State of Maharashtra ..... Respondents.
Mr. A.P. Mundargi, Senior Counsel i/b Mr. Kedar J. Patil for
applicants.
Mr. P.S. Hingorani, APP for the State.
CORAM: V.M. KANADE, J.
DATE : 25th November, 2010
P.C:-
1. Heard Shri Mundargi, the learned Senior Counsel
appearing on behalf of the applicants and Shri Hingorani, the
learned APP appearing on behalf of the State.
2. One of the main grievances of the applicants in this
application is that on the date of the offence, applicants were
minors and were below the age of 18 years and, therefore,
they were juveniles. The definition of "juvenile" is given
under section 2(k) and (l) of the Juvenile Justice (Care and
Protection of Children) Act, 2000. The learned Senior
Counsel submitted that section 7-A read with section 2(k),
APPLN 3779/10
2(l) and Rule 12 of 2007 Rules read with section 20 of the
Juvenile Justice Act, 2000 as amended in 2006 stipulates that
even a juvenile who had not completed eighteen years on
the date of commission of the offence is also entitled to get
benefit of the Juvenile Justice Act, 2000 as if the provisions of
section 2(k) had always been in existence even during the
operation of the 1986 Act. In support of the said submission,
he relied upon the judgment of the Apex Court in Hari Ram
vs. State of Rajasthan and another 1. Respondents were
directed to file affidavit in reply and, accordingly, affidavit
has been filed by the Police Inspector attached to Crime
Branch, Sangli. In his affidavit, in para 4, he has stated that
in case the applicants are found to be juvenile, their case
would be separated. It is, therefore, submitted that in view
of this averment made in the affidavit in reply, application
may be allowed and the Trial Court may be directed to hold
an inquiry regarding age of the applicants herein and if they
are found to be juvenile on the date of commission of the
offence, their trials may be separated and they may be
referred to Juvenile Justice Board.
3. There is much substance in the submissions made by
the learned Senior Counsel appearing on behalf of the
applicants. The ratio of the judgment of the Apex Court in
Hari Ram (supra) which is relied upon by the learned Senior
Counsel appearing on behalf of the applicants, in my view,
would squarely apply to the facts of the present case. In the
1 (2010) 1 SCC (Cri) 987 = (2009) 13 SCC 211
APPLN 3779/10
said case Hari Ram was arrested alongwith several others on
30/11/1998 for the alleged commission of offence under
sections 148, 149, 302, 325 read with section 149 and
sections 423/149 of the Indian Penal Code. After the case
was committed for trial, Trial Court determined the age of
the accused to be below 16 years on the date of commission
of the offence and after declaring him to be a juvenile,
directed that he be tried by the Juvenile Justice Board, Ajmer,
Rajasthan. Against this order, Criminal Revision Application
was filed at Jodhpur Bench of Rajasthan High Court. The High
Court, after going through the material on record, came to
the conclusion that the appellant was above 16 years of age
and was, therefore, not governed by the provisions of the
Juvenile Justice Act, 1986. In the Apex Court, it was argued
that the High Court had acted in a highly technical manner
and held that appellant was not a juvenile and, in the
process, defeated the very object of Juvenile Justice Act,
2000 since one of the aims of the said Act was rehabilitation
of juvenile offenders in order to bring them back to
mainstream society and to give them an opportunity to
rehabilitate themselves as useful citizens of the future.
Initially, the Apex Court in Pratap Singh vs. State of
Jharkhand1 has observed that section 20 of the said Act
would apply prospectively and not retrospectively and,
therefore, the said Act would cover earlier cases only where
a person had not completed age of 18 years on the date of
its commencement and not otherwise. Thereafter, section
1 (2005) 3 SCC 551
APPLN 3779/10
7A was introduced into the Act and Rule 12 was also
introduced and section 20 was amended. The Apex Court in
its judgment in Hari Ram1 (supra) in paras 38 and 39 has
noted the said development having taken place after the
Judgment of the Apex Court in Pratap Singh(supra). After
noticing various judgments of the Apex Court and
subsequent amendments, the Apex Court in paras 49, 50 and
51 of its judgment in Hari Ram (supra) has observed as
under:-
"49.
The effect of the proviso to
Section 7-A introduced by the
amending Act makes it clear that the
claim of juvenility may be raised before
any court which 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 the Act and the Rules
made thereunder which includes the
definition of "juvenile" in Sections 2(k)
and 2(l) of the Act even if the juvenile
had ceased to be so on or before the
date of commencement of the Act.
(emphasis supplied)"'
"50. The said intention of the
1 (2010) 1 SCC (Cri) 987 = (2009) 13 SCC 211
APPLN 3779/10
legislature was reinforced by the
amendment effected by the said
amending Act to Section 20 by
introduction of the proviso and the
Explanation thereto, wherein also it has
been clearly indicated that in any
pending case in any court the
determination of juvenility of such a
juvenile has to be in terms of Section
"on
2(l) even if the juvenile ceases to be so
or before the date of
commencement of this Act" and it was
also indicated that the provisions of the
Act would apply as if the said
provisions had been in force for all
purposes and at all material times
when the alleged offence was
committed. (emphasis supplied)"
"51. Apart from the aforesaid
provisions of the 2000 Act, as
amended, and the Juvenile Justice
Rules, 2007, Rule 98 thereof has to be
read in tandem with Section 20 of the
Juvenile Justice Act, 2000, as amended
by the Amendment Act, 2006, which
provides that even in disposed of cases
APPLN 3779/10
of juveniles in conflict with law, the
State Government or the Board could,
either suo motu or on an application
made for the purpose, review the case
of a juvenile, determine the juvenility
and pass an appropriate order under
Section 64 of the Act for the immediate
release of the juvenile whose period of
detention had exceeded the maximum
period provided in Section 15 of the
Act i.e. 3 years."
The procedure which is to be followed for the purpose of
determination of the age also has been discussed in the said
judgment and, finally, in para 59, the Apex Court has laid
down the law on this point. Para 59 of the said judgment
reads as under:-
"59. The law as now crystallised on a
conjoint reading of Sections 2(k), 2(l),
7-A, 20 and 49 read with Rules 12 and
98, places beyond all doubt that all
persons who were below the age of 18
APPLN 3779/10
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 was raised after they had
attained the age of 18 years on or
before the date of commencement of
the Act and were undergoing sentence
upon being convicted."
The amended Rule 12 of the said Rules lays down the
procedure for determination of the age, which reads as
under:-
12. Procedure to be followed in
determination of age.― (1) In every case
concerning a child or a juvenile in conflict with
law, the court or the Board, as the case may
be, the Committee referred to in rule 19 of
these rules shall determine the age of such
juvenile or child or a juvenile in conflict with
law within a period of thirty days from the
date of making of the application for that
purpose.
(2) The court or the Board or, as the case may
be, the Committee shall decide the juvenility
APPLN 3779/10
or otherwise of the juvenile or the child or, as
the case may be, the juvenile in conflict with
law, prima facie on the basis of physical
appearance or documents, if available, and
send him to the observation home or in jail.
(3) In every case concerning a child or juvenile
in conflict with law, the age determination
inquiry shall be conducted by the court or the
Board or, as the case may be, the Committee
by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii) the date of birth certificate from
the school (other than a play school) first
attended; and in the absence whereof;
(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
(b) and only in the absence of either
(i), (ii) or (iii) of clause (a) above, the medical
opinion will be sought from a duly
constituted Medical Board, which will declare
the age of the juvenile or child. In case exact
assessment of the age cannot be done, the
APPLN 3779/10
Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by
them, may, if considered necessary, give
benefit to the child or juvenile by considering
his/her age on lower side within the margin of
one year,
and, while passing orders in such case shall,
after taking into consideration such evidence
as may be available, or the medical opinion,
as the case may be, record a finding in
respect of his age and either of the evidence
specified in any of the clauses (a)(i), (ii), (iii) or
in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such
child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be
below 18 years on the date of offence, on the
basis of any of the conclusive proof specified
in sub-rule (3), the court or the Board or, as
the case may be, the Committee shall in
writing pass an order stating the age and
declaring the status of juvenility or otherwise,
for the purpose of the Act and these rules and
a copy of the order shall be given to such
juvenile or the person concerned.
APPLN 3779/10
(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of
section 7A, section 64 of the Act and these
rules, no further inquiry shall be conducted by
the court or the Board after examining and
obtaining the certificate or any other
documentary proof referred to in sub-rule (3)
of this rule.
(6) The provisions contained in this rule shall
also apply to those disposed off cases, where
the status of juvenility has not been
determined in accordance with the provisions
contained in sub-rule(3) and the Act, requiring
dispensation of the sentence under the Act for
passing appropriate order in the interest of
the juvenile in conflict with law."
The power, therefore, to decide the question regarding the
age of the juvenile is conferred on Juvenile Justice Board
which is a final authority for the purpose of determining age
of a person who claims to be the juvenile. This being the
position, application will have to be allowed.
APPLN 3779/10
4. In the result, charge framed against the applicants is set
aside and quashed. Applicants shall prefer an application in
the Sessions Court alongwith documents on which they are
relying, claiming the benefit of amended section 7-A, Rule 12
and section 20 of the said Act. Upon such application being
made, District Judge shall refer the matter to the Juvenile
Justice Board. The Juvenile Justice Board shall as per the
provisions laid down under Rule 12 of the said Rules to
determine the age of the applicants herein.
5.
Application is accordingly allowed and disposed off.
V.M. KANADE, J.
