(Care And Protection Of Children) ... vs In Re: Dinesh Saha
2021 Latest Caselaw 4223 Cal

                                   CRA No.268 of 1995
                                          with
12.08.21

CRAN No.1 of 2020 (Old CRAN No.642 of 2000) (not in the file) (S.R.) and Sl.08 CRAN No.3 of 2020 Ct.30 Via video conference

In Re: This is an application under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000;

And In re: Dinesh Saha ...

petitioner/appellant/appellant.

Mr. Sudipto Moitra, Sr. Adv.

Mr. Vijay Verma Mr. Dwaipayan Biswas ... appellant/applicant.

Mr. Rana Mukherjee Ms. Sukanya Bhattacharya Mr. Narayan Prasad Agarwala ... for the State.

This is an application under Section 7A of the Juvenile Justice

(Care and Protection of Children) Act, 2000 (in short, the said Act) filed by

the appellant/applicant in connection with the appeal being CRA no. 268

of 1995.

Shorn of unnecessary details the facts are that the

appellant/applicant herein along with another were convicted in

connection with an incident, which occurred on 2nd January, 1993.

Aggrieved by the said order of conviction, the said appellants preferred an

appeal, which was registered as CRA No.255 of 1996. The said appeal

was disposed of by a judgment dated 15th December, 2020 setting aside

the impugned order of conviction and directing the learned trial court to

hold a proper inquiry, in accordance with law, for ascertaining as to

whether on the date of occurrence, i.e. on 2nd January, 1993, the

applicant herein was a juvenile and thereafter to proceed for disposal of

the case afresh, according to law. On the basis of such directions, the

learned court below decided the issue of juvenility in favour of the

applicant by an order dated 17th June, 2011 and by an order dated 29th

June, 2011 the applicant was directed to be released at once. The

applicant herein was also arraigned as an accused in a case registered

pertaining to an incident which occurred on 18th December, 1992 and the

applicant along with two others were convicted. Aggrieved by the said

order of conviction, an appeal was preferred, being CRA No.268 of 1995

but the same was dismissed by a judgment delivered on 19th January,

2007. A Special Leave Petition was preferred against the said order.

However, the same was also dismissed.

Mr. Moitra, learned senior advocate appearing for the applicant

submits that when the issue of juvenility pertaining to an incident dated

2nd of January, 1993 has been decided in favour of the applicant, there

can be no dispute that the applicant was also a juvenile on the date of

the incident prior thereto i.e. on 18th December, 1992 and as such in

view of the provisions of Section 7A of the said Act, the applicant needs to

be immediately released. In support of such argument, Mr. Moitra has

placed reliance upon an unreported order of a Coordinate Bench of this

Court passed in CRA 540 of 2009.

He further submits that the applicant is presently aged about 46

(forty-six) years and he had already suffered incarceration for a period of

13 (thirteen) years.

Mr. Mukherjee, learned advocate appearing for the State opposes

the applicant's prayer and submits that the judgment dated 15th

December, 2010 passed in CRA No.255 of 1996 has already attained

finality in view of dismissal of the Special Leave Petition preferred against

the same. He, however, could not dispute the fact that the applicant was

a juvenile on 18th December, 1992.

We have heard the learned advocates appearing for the respective

parties and considered the materials on record.

Section 7A of the said Act empowers the appellate court to consider

the issue of juvenility even after dismissal of the appeal. It appears that

the Special Leave Petition was also not dismissed on merits. Upon

conducting an inquiry in terms of the judgment dated 15th December,

2010, the learned court below arrived at a categoric finding that the

applicant was a juvenile on 2nd January, 1993. In the light of such

assessment of age, we are of the opinion that no further inquiry is

required for establishment of the fact that the applicant was also a

juvenile on the date of the incident, which occurred prior thereto, i.e., on

18th December, 1992 and that the applicant would be entitled to the

benefits under the said Act. Records further reveal that the applicant had

already undergone imprisonment for 13 (thirteen) years.

For the reasons as discussed and in the light of the finding that the

applicant was a juvenile on the date of occurrence, the sentence imposed

upon him is set aside.

The applicant, namely, Dinesh Saha shall be forthwith released

from custody, if not wanted in any other case.

Accordingly, the application, being CRAN No.3 of 2020 along with

connected application being CRAN No.1 of 2000 (Old CRAN No.642 of

2000 are disposed of.

All parties shall act on the server copies of this order duly

downloaded from the official website of this Court.

(Subhasis Dasgupta, J.) (Tapabrata Chakraborty, J.)