Bombay High Court
Sambhaji Ramchandra Pillewad And ... vs The State Of Maharashtra on 19 July, 2021
Bench: V.K. Jadhav, Shivkumar Ganpatrao Dige
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
5. CRIMINAL APPLICATION NO. 993 OF 2021
IN CRIMINAL APPEAL NO. 228 OF 2021
1. Sambhaji Ramchandra Pillewad
2. Renukabai Ramchandra Pillewad. .. APPLICANTS
VERSUS
The State of Maharashtra. .. RESPONDENT
...
Mr.G.A.Gadhe, Advocate for the applicants.
Mr.M.M.Nerlikar, APP for the respondent-State.
...
CORAM : V. K. JADHAV AND
S. G. DIGE, JJ.
DATED : 19.07.2021
PER COURT :
1] Heard. Pending Criminal Appeal No.228 of 2021
preferred against the judgment and order of conviction passed
by the Additional Sessions Judge, Biloli, District Nanded in
Sessions Case No.39 of 2018, convicting thereby the appellants
- accused for the offence punishable under Section 302 r/w. 34
of the IPC and sentencing them to suffer imprisonment for life
each and also to pay fine of Rs.5,000/- each, in default S.I. for
three months each, the applicants - accused have preferred
Criminal Application No.992 of 2021 for suspending the
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substantive part of the sentence and bail and applicant no.1 -
original accused no.1 - Sambhaji Ramchandra Pillewad filed
Criminal Application No.993 of 2021 for permission to
produce additional evidence in respect of his juvenility as on
the date of incident.
2] So far as Criminal Application No.993 of 2021,
learned counsel for the applicants submits that the date of
birth of original accused no.1 - Sambhaji Ramchandra
Pillewad is 10.06.2002 as per his birth certificate, school
leaving certificate and admission extract of the school.
Learned counsel for the applicants, thus, submits that as on
the date of the incident i.e. 23.08.2018, applicant no.1 -
original accused no.1 - Sambhaji Ramchandra Pillewad was 16
years, 2 months and 18 days of the age.
3] Learned counsel for the applicants submits that in
terms of the provisions of Section 2 [13] of the Juvenile
Justice [Care and Protection of Children] Act, 2015, for short
''the Act of 2015', 'child in conflict with law' means a child
who is alleged or found to have committed an offence and
who has not completed eighteen years of age on the date of
commission of such offence.
4] Learned counsel for the applicants has also
invited attention to Section 9 [2] of the Act of 2015, the
enquiry is contemplated in case a person alleged to have
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committed an offence claims before a Court other than a
Board, that the person is a child or was a child on the date of
commission of the offence.
5] Learned counsel for the applicants further
submits that in terms of the provisions of Section 18 of the Act
of 2015 the child found to be in conflict with law can be dealt
with by various orders as contemplated but certainly not with
the term of imprisonment.
6] Learned counsel for the applicants in order to
substantiate his contention placed reliance on the following
two cases :
[I] Ashwani Kumar Saxena Vs. State of Madhya
Pradesh, reported in [2012] 9 SCC 750; and
[ii] Gundya s/o. Yellappa Arote & others Vs. The
State of Maharashtra, reported in 2014 SCC Online
Bom. 4338.
7] We have heard learned APP for the respondent -
State. Learned APP has not disputed this legal position.
Learned APP, however, submits that the enquiry as
contemplated under Section 9 [2] of the Act of 2015 by the
Board is necessary for determination of the age of applicant
no.1 - accused no.1 - Sambhaji Ramchandra Pillewad before
passing any further orders.
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8] We have carefully considered the submissions
made on behalf of applicant no.1 - accused no.1 - Sambhaji
by the learned counsel Mr.Gadhe. We have carefully gone
through the documents annexed to the Criminal Application
No.993 of 2021, it appears from the birth certificate, which
has been issued by the office of the Grampanchayat, Patoda
[T.B.], Taluka Naigaon, District Nanded that the date of birth
of applicant no.1 - original accused no. 1 - Sambhaji is
10.06.2002 and the names of the parents are mentioned as
mother - Renukabai Pillewad and father - Ramchandra
Pillewad. The school leaving certificate is at Exhibit-A-2
wherein same date of birth is mentioned. The said school
leaving certificate has been issued by the Head Master of
Ananddayi Anu.Adiwasi Madhyamik Ashram School,
Manjaram, Taluka Naigaon, District Nanded along with school
admission extract. Prima facie, it appears that the date of birth
of applicant no.1 - accused no. 1 - Sambhaji Ramchandra
Pillewad is 10.06.2002 and if the same date is assumed for the
sake of discussion, the age of applicant no.1 - original accused
no.1 - Sambhaji as on the day of the incident i.e. 23.08.2018,
was 16 years, 2 months and 18 days.
9] We reproduce herein-below Section 9 [2] of the
Juvenile Justice [Care and Protection of Children] Act, 2015,
which is relevant for the present discussion:
9. Procedure to be followed by a Magistrate
who has not been empowered under this Act. -
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(1) .....
(2) In case a person alleged to have committed
an offence claims before a Court other than a
Board, that the person is a child or was a child
on the date of commission of the offence, or if
the Court itself is of the opinion that the person
was a child on the date of commission of the
offence, the said Court shall make an inquiry,
take such evidence as may be necessary (but not
an affidavit) to determine the age of such person,
and shall record a finding on the matter, stating
the age of the person as nearly as may be:
Provided that such a claim may be raised
before any Court and it shall be recognised at
any stage, even after final disposal of the case,
and such a claim shall be determined in
accordance with the provisions contained in this
Act and the rules made thereunder even if the
person has ceased to be a child on or before the
date of commencement of this Act.
(3) .....
(4) .....
10] In the case of Ashwani Kumar Saxena Vs. State of
Madhya Pradesh, reported in [2012] 9 SCC 750,
relied on by the learned counsel for applicant no.1 , the Hon'ble
Supreme Court has dealt with the issue of the nature of the
enquiry contemplated under Section 7-A and Section 94 of the
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J.J. Act, 2000 r/w. Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007. In paragraph Nos.30 and
32 of the said judgment, the Hon'ble Supreme Court has made
following observations :
30. Consequently, the procedure to be
followed under the JJ Act in conducting an
inquiry is the procedure laid down in that
statute itself i.e. Rule 12 of the 2007 Rules.
We cannot import other procedures laid down
in the Code of Criminal Procedure or any
other enactment while making an inquiry with
regard to the juvenility of a person, when the
claim of juvenility is raised before the court
exercising powers under Section 7-A of the
Act. In many of the cases, we have come
across, it is seen that the criminal courts are
still having the hangover of the procedure of
trial or inquiry under the Code as if they are
trying an offence under the penal laws
forgetting the fact that the specific procedure
has been laid down in Section 7-A read with
Rule 12.
32. "Age determination inquiry"
contemplated under Section 7-A of the Act
read with Rule 12 of the 2007 Rules enables
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the court to seek evidence and in that process,
the court can obtain the matriculation or
equivalent certificates, if available. Only in the
absence of any matriculation or equivalent
certificates, the court needs to obtain the date
of birth certificate from the school first
attended other than a play school. Only in the
absence of matriculation or equivalent
certificate or the date of birth certificate from
the school first attended, the court needs to
obtain the birth certificate given by a
corporation or a municipal authority or a
panchayat (not an affidavit but certificates or
documents). The question of obtaining
medical opinion from a duly constituted
Medical Board arises only if the
abovementioned documents are unavailable.
In case exact assessment of the age cannot be
done, then the court, for reasons to be
recorded, may, if considered necessary, give
the benefit to the child or juvenile by
considering his or her age on lower side within
the margin of one year.
11] In the case of Gundya Yellappa Arote & others Vs.
The State of Maharashtra [Criminal Application No.4912 of
2014], decided on 05.11.2014, the Division Bench of this
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Court in paragraph Nos.9 and 10 has made following
observations :
9] Upon conjoint reading of Section 7-A of
the said Act with Rules 12 and 19 of the said
Rules, when such claim of juvenility is raised
before any court or a court is of the opinion that
an accused person was a juvenile on the date of
commission of the offence, the procedure as
contemplated under Rules 12 and 19 of the said
Rules is required to be followed.
10] In the light of discussion herein above, we
deem it appropriate to direct the Committee
constituted under the relevant Rules for Nanded
district to initiate an inquiry in respect of age of
the applicant No.4 Yellappa s/o Yellappa Arote
within four corners of the Act and the Rules and
conclude the same, as expeditiously as possible,
as stated in Rule 12 of the said Rules.
12] In the instant case, applicant no.1 - original
accused no.1 - Sambhaji Ramchandra Pillewad has filed
Criminal Appeal against his conviction for the offence
punishable under Section 302 r/w. 34 of the IPC, sentencing
him to suffer imprisonment for life, which is pending for
hearing before this Court. In this Appeal itself, applicant no.1
- original accused no.1 - Sambhaji Ramchandra Pillewad has
filed present application for permission to produce additional
evidence pertaining to his juvenility. However, in the light of
the ratio laid down by the Hon'ble Apex Court so also the
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Division Bench of this Court, instead of undertaking the
enquiry by this Court in terms of the provisions of Section 9
[2] of the Act of 2015, we deem it appropriate to direct the
concerned Juvenile Justice Board to make an enquiry about
the age of applicant no.1 - accused no.1 - Sambhaji
Ramchandra Pillewad on the date of incident and submit a
report to this Court. Hence we proceed to pass the following
order :
ORDER
i] Criminal Application No. 993 of 2021 is hereby
partly allowed.
ii] We direct the Juvenile Justice Board, Nanded to
make an enquiry into the determination of the age of
applicant no.1 - accused no.1 - Sambhaji Ramchandra
Pillewad, as on the day of the incident i.e. 23.08.2018, in
connection with Sessions Case No.39/2018 wherein the
Additional Sessions Judge, Biloli, by the judgment and order
of conviction dated 03.03.2021, has convicted him along with
his mother - Renukabai Ramchandra Pillewad for the offence
punishable under Section 302 r/w. 34 of the IPC and
sentenced both of them to suffer imprisonment for life and to
pay fine of Rs.5,000/-, in default S.I. for three months each.
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iii] We direct the Juvenile Justice Board to complete
the enquiry within two weeks from the date of receipt of this
order and submit a report to this Court.
iv] Learned counsel for applicant no.1 - accused no.1
- Sambhaji Ramchandra Pillewad has submitted a pursis on
record wherein the name of the brother-in-law of accused no.1
namely, "Datta s/o. Vithal Bandewar", is mentioned as a
person to prosecute an enquiry on behalf of applicant no.1 -
accused no.1 - Sambhaji Ramchandra Pillewad before the
Juvenile Justice Board and submit all the documents on behalf
of applicant no.1 - accused no.1 - Sambhaji Ramchandra
Pillewad before the Juvenile Justice Board, Nanded during the
course of enquiry.
v] Leave granted to prosecute an enquiry on behalf
of accused no.1 - Sambhaji.
vi] Criminal Application is accordingly disposed of.
[S. G. DIGE, J.] [V. K. JADHAV, J.]
DDC
