rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1309 OF 2008
IN
CRIMINAL APPEAL NO.82 OF 1989
Balu Bapusaheb Gade ]
Aged 37 years, ]
Residing at Mukam Post Sakore, ]
Taluka Ambegaon, Dist.-Pune ] .. Applicant
Vs.
State of Maharashtra ] .. Respondent
Ms.Rebecca Gonsalves for the Applicant.
Ms.A.T.Javeri, A.P.P.for the State.
CORAM : A.S.Oka, J.
ig DATED : 27TH JANUARY, 2009
JUDGMENT :-
. Heard the learned counsel appearing for the
Applicant and the learned A.P.P.for the state. The
present application has been filed by the original
accused No.3. The Applicant alongwith four other
accused were prosecuted for the offence punishable
under section 376 (2)(g) of the India Penal Code. The
Sessions Court passed an order of acquittal. The
Respondent State of Maharashtra preferred an Appeal
against the acquittal. By judgement and order dated
1st July, 2004, this Court overturned the order of
acquittal and convicted the accused for the offence
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punishable under section 376(2)(g) of the Indian Penal
Code. The accused were sentenced to suffer rigorous
imprisonment for seven years. Fine of Rs.2,000/- each
was imposed and in default of payment of fine, the
accused were directed to suffer imprisonment for one
month.
2. By the present application, the Applicant has
invoked section 7A of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter
referred as the said Act of 2000). On the basis of
the birth certificate a copy of which is annexed to
the application it is contended that the date of birth
of the Appellant is 8th July, 1971. It is pointed out
that the offence has been committed on 7th and 8 th
May 1988 and therefore on the date of commission of
offence, the Applicant was a juvenile within the
meaning of clause (k) of sub section (1) of section 2
of the said Act of 2000. By an order dated 19th
December, 2008 this Court directed the Respondent
State of Maharashtra to make an inquiry and to examine
the birth certificate. This Court directed the
Respondent State to record the statement of the
officials of Gram Panchayat to verify the claim of the
Applicant. Accordingly, a report dated 29th December,
2008 has been submitted by the Assistant Inspector of
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Police, Manchar Police Station. Various documents
have been annexed to the Report. The first document
is a certificate issued by the Head master of the
Hutatma Babu Genu Vidyalaya, Mahalunge – Padwal,
Taluka Ambegon, District Pune stating that the
Applicant was a bonafide students of the said school
in the year 1987-88 and as per the general register
maintained by the School, his date of birth is 8th
July, 1971. Alongwith the report a birth certificate
issued under sections 12/17 of the Registration of
Births and Deaths Act, 1969 and Rules 8/13 of the
Maharashtra Registration of Births and Deaths Rule,
2000 has
been produced. The officer concerned has
recorded statements of five witnesses. The said
statements as well as the documents produced alongwith
the report substantiates the case of the Applicant
that his date of birth was 8th July, 1971. The report
certifies the case made out by the Applicant as
regards his date of birth.
3. Under sub section 1 of section 7A of the said
Act of 2000, this Court is under an obligation to make
an enquiry so as to determine the age of the Applicant
on the date of commission of the offence. In view of
the documents produced by the Police Officer alongwith
the report, I find that the date of birth of the
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Applicant is 8th July 1971 and therefore at the time
of commission of offence, he was a juvenile within the
meaning of clause (k) of sub Section 1 of section 7 of
the said Act of 2000.
4. Sub section 2 of section 7 (A) of the said Act
of 2000 requires this Court to forward a person found
to be juvenile to the Board constituted under the said
Act of 2000 for passing appropriate order and the
sentence, if any passed by this Court shall be deemed
to have no effect. Hence, the order of sentence as
against the Applicant under the Judgment and order
dated 1st
July, 2004 shall be deemed to have no
effect.
5. Section 15 of the said Act 2000 reads thus :
(1) Where a Board is satisfied on inquiry that
a juvenile has committed an offence, then,
notwithstanding anything to the contrary
contained in any other law for the time being
in force, the Board may, if it so thinks fit,-
(a) allow the juvenile to go home after advice
or admonition following appropriate inquiry
against and counselling to the parent or the
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guardian and the juvenile ;
(b) direct the juvenile to participate in
group counselling and similar activities ;
(c) order the juvenile to perform community
service ;
(d) order the parent to the juvenile or the
juvenile himself to pay a fine if he is over
fourteen years of age and earns money;
(e)
direct the juvenile to be released on
probation of good conduct and placed under the
care of any parent, guardian or other fit
person, on such parent, guardian or other fit
person executing a bond, with or without
surety, as the Board may require, for the good
behaviour and well-being of the juvenile for
any period not exceeding three years ;
(f) direct the juvenile to be released on
probation of good conduct and placed under the
care of any fit institution for the good
behaviour and well being of the juvenile for
any period not exceeding three years;
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(g) make an order directing the juvenile to be
sent to a special home for a period of three
years :
Provided that the Board may, if it is
satisfied that having regard to the nature of
the offence and the circumstances of the case,
it is expedient so to do, for reasons to be
recorded reduce the period of stay to such
period as it thinks fit.”
When it is
found that a Juvenile has committed an
offence, there are several options open before the
Board. Making an order directing the juvenile to be
sent to a Special Home for a period of three years is
not the only option open for the Juvenile Board.
Considering the facts and circumstances of the case,
various courses provided in clause (a) to (f) can be
adopted. The learned counsel appearing for the
Applicant has drawn my attention to section 6 of the
said Act and in particular sub section 2 thereof. It
provides that the powers conferred by the said Act of
2000 on the Board may also be exercised by a High
Court when proceeding comes before this Court in
Appeal, Revision or otherwise. Therefore, in a given
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case in a pending Appeal or otherwise when this Court
finds that on the date of commission of the offence,
the alleged accused was a juvenile or a child, this
Court can exercise the powers of the Board in view of
sub section 2 of section 6 of the said Act, 2000.
6. Under section 15 of the said Act of 2000 the
most stringent action which can be taken against a
juvenile is of directing the juvenile to be sent to a
Special Home for a period of three years. As stated
earlier, the offence was committed more than 20 years
back. The present age of the Applicant is 37 years.
The
Applicant has already suffered in the sense that
it is an admitted position that the Applicant has
undergone sentence in terms of the order of this Court
passed in Appeal for more than three years.
Considering the facts of the case and especially the
fact that the present age of the Applicant is 37
years, now no purpose will be served by adopting any
of the options open under sub section 1 section 15 of
the said Act of 2000. This view is required to be
taken in the light of the peculiar facts of the case
in as much as the Applicant has already undergone
sentence for more than three years.
7. Therefore, the only course open which needs to
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be adopted is of directing that the Applicant shall be
forthwith released unless he is required in connection
with any other case.
8. Hence, the following order :
:: O R D E R ::
i. Application is allowed.
ii. The Applicant shall be forthwith set
at liberty unless he is required in connection
with some other case.
ii. Writ to be issued forthwith.
(A.S.Oka, J.)
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rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1309 OF 2008
IN
CRIMINAL APPEAL NO.82 OF 1989
Balu Bapusaheb Gade ]
Aged 37 years, ]
Residing at Mukam Post Sakore, ]
Taluka Ambegaon, Dist.-Pune ] .. Applicant
Vs.
State of Maharashtra ] .. Respondent
Ms.Rebecca Gonsalves for the Applicant.
Ms.A.T.Javeri, A.P.P.for the State.
CORAM : A.S.Oka, J.
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DATED : 27TH JANUARY, 2009
JUDGMENT :-
. For the reasons separately recorded the
Application is allowed.
2. The Applicant shall be forthwith set at
liberty, unless he is required in connection with some
other case.
3. Writ to be issued forthwith.
(A.S.Oka, J.)
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