Sainath Dattatraya Parsewar vs State Of Maha
2016 Latest Caselaw 1559 Bom

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                                             -1-




                                                                                
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                        
                 CRIMINAL REVISION APPLICATION NO. 345 OF 2003

     Sainath s/o Dattatraya Parsewar,
     Age: 29 years, Occ: Unemployed,
     R/o. Itwara, Nanded, Dist. Nanded.                 ...Applicant




                                                       
              versus

     The State of Maharashtra,
     At the instance of complainant




                                           
     Shri. N.R. Bajaj,
     Food Inspector, Nanded, 
     Dist. Nanded.                                      ...Respondent

                                          .....
              Mr. V.R. Dhorde, Advocate for applicant
                            
              Mr. R.V. Dasalkar, A.P.P. for respondent
                                          .....
      

                                               CORAM : N.W. SAMBRE, J.

                                               DATE :       16th APRIL, 2016

     ORAL JUDGMENT :





                       Heard       Mr.   Dhorde,   learned       Counsel         for     the

applicant/accused, who was convicted for an offence punishable

under Section 7(i) read with Section (ia) (a) (c) (j) and (m) and

punishable under Section 16(1-A) of the Prevention of Food

Adulteration Act and sentenced to suffer rigorous imprisonment for

one year and fine of Rs.2000/-, in default to suffer further simple

imprisonment for six months, for offence under Section 4-A,

punishable under Section 16(1-C) of the Prevention of Food

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Adulteration Act and sentenced to suffer simple imprisonment for one

month and fine of Rs.500/- in default, to suffer simple imprisonment

for one month and for an offence punishable under Section 7(iii) read

with Rule 60 and punishable under Section 16(1)(a)(ii) of the

Prevention of Food Adulteration Act and sentenced to suffer simple

imprisonment for six months and fine of Rs.1000/-, in default to suffer

further simple imprisonment for two months, in Regular Criminal

Case No. 146 of 1994 vide judgment and order dated 30/031995,

which was the subject matter of appeal at the behest of present

applicant in Criminal Appeal No. 39 of 1995, which came to be

dismissed on 08/10/2003 by learned Additional Judge, Nanded

affirming the judgment delivered by learned Magistrate.

2. At the outset, Mr. Dhorde, learned Counsel for the

applicant has invited my attention to the juvenility and availability of

privileges under the Juvenile Justice (Care and Protection of

Children) Act, 2000 (hereinafter shall be referred to 'Act of 2000') and

would urge that lower appellate Court has recorded findings that the

Act of 2000 is not applicable to the facts of the present case. Learned

lower appellate Court has observed that the offence in question took

place on 27/11/1992 when the Juvenile Justice Act, 1998 was holding

the field. By relying upon the judgment of the Apex Court in the

matter of Bharat Bhushan vs. State of Himachal Pradesh reported

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in 2013 ALL MR (Cri) 2199, learned Counsel for the applicant would

submit that the learned appellate Court has recorded incorrect finding

as regards retrospective applicability of the Act 2000 which is no

more res integra and the benefit must be passed on to the present

applicant-accused. So as to substantiate his contention, he has

invited my attention to paragraphs-8, 9 and 10 of the said judgment,

which reads thus :

"8. We have heard learned Counsel for the parties at some length. The legal position regarding the entitlement of the

appellant who was more than 16 years but less than 18 years of age as on the date of commission of the offence on 22nd June, 1993, is in our view settled by the decision of

this Court in Hari Ram v. State of Rajasthan (2009) 13

SCC 211 : [2009 ALL SCR 1381] This Court has in that case traced the history of the legislation and reviewed the entire case law on the subject. Relying upon the decision of

the Constitution Bench of this Court in Pratap Singh's, [2005 ALL MR (Cri.) 2258 (S.C.) case (supra), this Court in Hari Ram's [2009 ALL SCR 1381] case (supra) reiterated

that the question of juvenility of a person in conflict with law has to be determined by reference to the date of the incident and not the date on which cognizance is taken by the Magistrate. Having said that, this Court held that the effect of the pronouncement in Pratap Singh's [2005 ALL MR (Cri.) 2258 (S.C.) case (supra) on the second question, viz. whether the 2000 Act was applicable in a case where the proceedings were initiated under the 1986 Act and were

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pending when the 2000 Act came into force, stood

neutralised by the amendments to Juvenile Justice (Care and Protection of Children) Act, 2000, by Act 33 of 2006.

The amendments made the provisions of the Act applicable even to juveniles who had not completed the age of 18 years on the date of the commission of offence said this

Court. Speaking for the Court Altamas Kabir, J. (as His Lordship then was) observed:

"58. Of the two main questions decided in Pratap

Singh case, one point is now well established that the juvenility of a person in conflict with law has to

be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate. The effect of the other part of the

decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by

Act 33 of 2006, whereunder the provisions of the Act were also made applicable to juveniles who had not

completed eighteen years of age on the date of commission of the offence.

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 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

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sentence upon being convicted.

                                                                                     
                          xxxxxxxxx xxxxxxxxx




                                                             
                                   68. Accordingly, a juvenile who had not
                      completed         eighteen     years      on     the     date      of




                                                            

commission of the offence was also entitled to the benefits 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."

9. These decisions have been followed in several other subsequent pronouncements of this Court including the decisions of this Court in Raju and Anr. v. State of

Haryana (2010) 3 SCC 235, Dharambir v. State (NCT of Delhi) and Anr. (2010) 5 SCC 344 : [2010 ALL MR

(Cri)2300(S.C.), Mohan Mali and Anr. v. State of M.P. (2010) 6 SCC 669 : [2010 ALL MR (Cri.) 2289 (S.C.)

Jitendra Singh @ Babboo Singh and Anr. v. State of U.P. (2010) 13 SCC 523 : [2010 ALL SCR 2877], Daya Nand v. State of Haryana (2011) 2 SCC 224 : [2011 ALL MR (Cri.) 614 (S.C.), Shah Nawaz v. State of U.P. and

Anr. (2011) 13 SCC 751 : [2005 ALL MR (Cri.) 2258 (S.C.) and Amit Singh v. State of Maharashtra and Anr. (2011) 13 SCC 744 : [2012 ALL SCR 380]

10. The attention of the High Court was, it is obvious, not drawn to the decision in Hari Ram's case [2009 ALL SCR 1381] (supra), although the same was pronounced on 5th May, 2009 i.e. almost a year earlier to the pronouncement

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of the impugned judgment in this case. Be that as it may, as

on the date the offence was committed the appellant was admittedly a juvenile having regard to the provisions of

Sections 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98 of the Rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000. He was, therefore,

entitled to the benefit of the said provision, which benefit, it is evident, has been wrongly denied by the High Court only because the High Court remained oblivious of the

pronouncement of this Court in Hari Ram's case [2009

ALL SCR 1381] case (supra)."

3. He would then submit that the date of birth of present

applicant-accused is 04/03/1976, whereas the alleged offence

claimed to have been committed on 27/11/1992. So as to justify his

plea of juvenility and passing of benefit under the said Act, he has

invited attention of this Court to the extract of admission register

issued by the Headmaster of Zilla Parishad High School, wherein it is

certified the date of birth of present applicant is, 04/03/1976. He

would then invite my attention to certain documents i.e. ration card

issued by the competent authority of the State Government.

4. Learned A.P.P. submits that benefits cannot be passed

on to the present applicant, as offence committed is prior to giving

effect of Act of 2000 and was governed by the Act of 1998. He

submits that the criminal revision application be dismissed, as there

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are serious allegations against the present applicant.

5. Having bestowed my thoughts to the submissions, it is

required to be noted that there is a document, extract of the school

admission register issued by Zilla Parishad Primary School, Itwara,

Nanded demonstrating admission of the present applicant at Serial

No. 5962. The date of admission is shown to be 24/06/1982 and is

date of birth as 04/03/1976. The fact remains that the food articles

which were sold by the present applicant, the sample therefrom was

drawn on 27/11/1992. If the date of birth as 04/03/1976 is

considered, then on the date of alleged commission of offence, the

age of the applicant could be calculated above 16 years and below

18 years.

6. In the background of above, it is rquired to be noted that

the provisions of Act of 2000 are very much available to the present

applicant and it was duty of learned Sessions Judge to evaluate the

claim of the applicant in the light of provisions of Section 7(a) and

Section 20 of the Act. Learned Counsel for the applicant has rightly

invited attention of this Court to the judgment of the Apex Court, in

the matter of Hari Ram, cited supra.

7. Learned lower appellate Court by observing that new Act

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of 2000 and provisions thereof are not available to this applicant, has

committed error of law, which in my opinion is not sustainable.

Hence, the said judgment of the dismissal of the appeal passed by

the learned Additional Sessions Judge, Nanded on 08/10/2003

passed in Criminal Appeal No. 39 of 1995 is hereby set aside. The

said appeal stood restored to the file of learned Additional Sessions

Judge, Nanded for deciding afresh in the light of above referred

observations. The present applicant undertakes to appear before

learned Additional Sessions Judge, Nanded on 06/06/2016 alongwith

original certificate depicting the date of birth and learned Additional

Sessions Judge, Nanded is directed to evaluate the claim of the

applicant about his juvenility after taking recourse to such inquiry as

is permissible in law and shall record findings afresh as regards the

guilt of applicant-accused. The Additional Sessions, while doing so,

shall keep at back of its mind the provisions of Section 20 of the Act

of 2000 and the judgment of Apex Court in the matter of Hari Ram

cited supra.

8. The criminal revision application is partly allowed in

above terms. There shall be no order as to costs.

[ N.W. SAMBRE, J. ]

Tupe/16.04.16