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2009 DIGILAW 115 (BOM)

Balu Bapusaheb Gade v. State of Maharashtra

2009-01-27

A.S.OKA

body2009
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 judgment and order dated 1st July, 2004, this Court overturned the order of acquittal and convicted the accused for the offence 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 8th 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 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. 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 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. 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 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; (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. 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 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 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: ORDER i. Application is allowed. ii. The Applicant shall be forthwith set at liberty unless he is required in connection with some other case. iii. Therefore, the only course open which needs to 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: ORDER i. Application is allowed. ii. The Applicant shall be forthwith set at liberty unless he is required in connection with some other case. iii. Writ to be issued forthwith.