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Judgment
V.K. Tahilramani, J.—Rule. Rule is made returnable forthwith and heard finally with the consent of Shri Jaiswal, learned Counsel for the Petitioner and Mrs. Maldhure, learned Additional Public Prosecutor for the Respondents.
By the judgment and order dated 08.11.1994, the Petitioner was convicted in a case u/s 302 read with Section 34 of Indian Penal Code. The appeal preferred by him against the said judgment and order of conviction came to be dismissed by order of this Court dated 06.06.2001. Thereafter the Petitioner preferred a SLP which was also dismissed by the Supreme Court. The case of the Petitioner is that his date of birth is 20th March 1975 and the incident in question took place on 06th December 1992, hence, on the date of incident, as he was below 18 years of age, he has prayed that he be given the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act).
The learned Counsel for the Petitioner has placed reliance on Section 7A of the Act, which reads as under:
7A. Procedure to be followed when claim of juvenility is raised before any Court (
1) Whenever a 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 court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be;
Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of commission of the offence under Sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.
On a plain reading of Section 7A, it appears that a claim of juvenility can be raised before "any" court even after final disposal of the case. This Court in its decision dated 18th December 2008 in Suo Motu Writ Petition No. 1 of 1999, Suo Motu High Court on its own Motion v. The Chief Secretary, Government of Maharashtra and Ors. (Corum F.I. Rebello & R.S. Mohite, JJ.) had occasion to consider the provisions of Section 7A of the Juvenile Justice Act. After considering the provisions, the Court observed in para 2 as under:
Pursuant to directions issued, reports have been received. We find that Yerwada Central Prison, Pune based on this direction, had forwarded the cases of juveniles who were in detention to various Sessions Courts who had convicted such persons. The learned amicus curiae points out that many of the matters are not being considered by the learned Judges on the ground that the judgment passed by them thereafter, has been confirmed in appeal before this Court or have been disposed of by the learned Supreme Court.
By the said order, this Court directed that the Principal Sessions Judge in all the Districts in the States of Maharashtra and Goa and the Union Territories of Dadra and Nagar Haveli and Daman and Diu on receipt of application from Jail Superintendents or even suo motu if the application is made to them to consider the claim regarding juvenility.
The Supreme Court in the case of Dharambir Vs. State (NCT of Delhi) and Another, , observed in para 15 as under:
On conjoint reading of Sections 2(k), 2(1), 7A, 20 and 49 of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, all persons who were below the age of eighteen 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 is raised after they have attained the age of eighteen years on or before the date of commencement of the Act of 2000 and were undergoing sentences upon being convicted.
It is further observed that the claim of juvenility can be raised before any court and it has to be recognized at any stage, even after final disposal of the case.
We may also refer to a decision of this Court dated 2nd May, 2008 in Criminal Appeal No. 750 of 2004, Imtiyaz Hussain Mumtiyaz Sheikh v. The State of Maharashtra (Coram: F.I. Rebello & K.U. Chandiwal, to support the claim that the plea of juvenility can be raised at any stage i.e. even after final disposal of the case and any Court can consider the said prayer.
Admittedly, the SLP preferred by the Petitioner before the Supreme Court was dismissed. However, after going through the decisions of the Supreme Court as well as this Court discussed above, it appears that such a claim can be raised by an accused before a lower forum even after the appeals preferred by him are dismissed and the Court can entertain the claim of this nature.
In the present case, by order dated 25.11.2010, this Court directed the Chief Judicial Magistrate, Amravati, to conduct an inquiry and decide as to what is the date of birth of the Petitioner and report was to be submitted to this Court by 07.02.2011. Pursuant to the directions of this Court, the learned Chief Judicial Magistrate sent a report to this Court dated 11.01.2011 wherein he has come to the conclusion that the date of birth stated by the Petitioner i.e. 20.03.1975 is correct. Thus, if the date of birth of the Petitioner is indeed 20th March 1975 and the incident in question has taken place on 6th December 1992, the Petitioner was below 18 years of age at the time of incident. In such case, the Petitioner deserves to be given the benefit of being a juvenile on the date of the incident.
In the case of Satish alias Dhana v. State of Madhya Pradesh and Ors., reported (2010) 1 SCC 1320, the Supreme Court observed that on the date of occurrence of the incident, the Appellant had not completed 18 years of age. As the fact that he had not completed 18 years of age was established, therefore, he cannot be denied the benefit of the said Act. In the said case, the Supreme Court while sustaining the conviction for the offence for which the Appellant was found guilty, the sentence awarded was restricted to the period already undergone. We are also inclined to follow this approach. Hence, though the conviction of the Appellant is maintained, his sentence is restricted to the period already undergone by him. In this case the Petitioner be set at liberty forthwith.
Writ Petition is disposed of. Rule is made absolute in above terms.