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2006 DIGILAW 1466 (BOM)

Sanjay Bhishma Kosare v. State of Maharashtra

2006-09-15

S.R.DONGAONKAR

body2006
ORAL JUDGMENT The petitioner, by this application under Section 397 and 399 of Cr.P.C. takes exception to the order passed by the learned Additional Sessions Judge, rejecting the application of the accused no. 3 (present applicant being accused no. 3), for transferring his case for trial to the competent authority (Juvenile Court), as the present applicant was ?juvenile? at the time of the alleged offence. 2. Facts which are necessary for the decision of this revision petition can be stated thus: The applicant is accused in Sessions Trial No. 427/99 before the Third Additional Sessions Judge, Nagpur for the offences punishable under Section 147, 148, 149, 302 and 307 of the I.P.C. In all 7 accused are facing the trial. It is claimed that accused no. 3 i.e. present applicant was below the age of 16 years at the time of alleged commission of the offence; his date of birth being 4.2.1981. After considering the rival contentions of the parties and also provisions of Juvenile Justice Act, the learned trial Judge found that the application could not be granted as according to him, the accused had stated his age to be 19 years before the police and, therefore, his case was committed to the Sessions Court for trial. Further according to him, in view of the judgment of the Apex Court, there is no scope to say that the age of applicant, that is material; should be considered as on the date of offence. Further according to him, as the accused did not raise the plea of his age i.e. he being below 16 years of age and as in the present case also till that application was filed, no such objection was raised, he could be treated as major and there is no need to send him in Juvenile Court. The learned Judge has referred the case of Arnit Das V. State of Bihar (A.I.R. 2000 S.C. 2264) for coming to this conclusion, whereby he rejected the application of the present applicant. 3. The learned counsel for the applicant, has submitted that the date of birth of the accused/applicant is 4.2.1981 and the alleged incident had taken place on 22.1.1997. Therefore, if the date of the alleged offence is considered, this accused would be of below 16 years i.e. juvenile at the time of the occurrence. 3. The learned counsel for the applicant, has submitted that the date of birth of the accused/applicant is 4.2.1981 and the alleged incident had taken place on 22.1.1997. Therefore, if the date of the alleged offence is considered, this accused would be of below 16 years i.e. juvenile at the time of the occurrence. According to him, only the date of the offence can be considered as a relevant date for considering as to whether accused should be tried by the juvenile Court. He has relied on the judgment of the Apex Court in the case of Pratap Singh Vs. State of Jharkhand & anr. 2005 (1) Scale 763 . 4. Learned counsel for the State submits that in view of the judgment of the Apex Court in Pratap Singh case (supra) referred above, the date of the offence has to be reckoned with the date of birth of the accused. He therefore submits that in the present case accused will have to be treated as juvenile and his case need to be tried by the Juvenile Justice Board which is entitled to try such offenders. 5. It is necessary to note the observations of the Apex Court in the case of Pratap Singh (supra ) particularly para-20 which reads thus: ? As already noticed the decision rendered by a three- Judge bench of this Court in Umesh Chandra (supra) was not noticed by a two Judge bench of this Court in Arnit Das (supra). We are clearly of the view that the law laid down in Umesh Chandra (supra) is the correct law and that the decision rendered by a two-Judge bench of this Court in Arnit Das (supra) cannot be said to have laid down a good law. We, accordingly, hold that the law laid down by a three-Judge bench of this Court in Umesh Chandra (supra) is the correct law.? 6. In the case of Umesh Chandra Vs. State of Rajasthan AIR 1982 Supreme Court 1057 it has been observed by the Apex Court that : ? Therefore, Ss. 3 and 26 became necessary. Both the sections clearly point in the direction of the relevant date for the applicability of the Act as the date of occurrence. 6. In the case of Umesh Chandra Vs. State of Rajasthan AIR 1982 Supreme Court 1057 it has been observed by the Apex Court that : ? Therefore, Ss. 3 and 26 became necessary. Both the sections clearly point in the direction of the relevant date for the applicability of the Act as the date of occurrence. We are clearly of the view that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child , is concerned, is the date of the occurrence and not the date of the trial.? 7. It is clear that the judgment of the Apex Court relied upon by the Additional Sessions Judge to reject the application of the applicant, is not applicable in the present case and, therefore, the impugned order of the learned Sessions Judge being incorrect at law needs to be set aside by allowing this application. Accordingly this application is allowed. The order of the learned Additional Sessions Judge dated 9.2.2002 below Exhibit 53 is hereby set aside. The learned Additional Sessions Judge is directed to separate the trial of the accused no. 3, from that of other accused and pass the suitable order for his trial by 'Juvenile Justice Board'. 8. Revision petition stands disposed of accordingly.