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2011 DIGILAW 1171 (BOM)

Vijay Gokul Mhaske v. State of Maharashtra

2011-09-21

A.M.KHANWILKAR, P.D.KODE

body2011
Judgment :- A.M. KHANWILKAR, J. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Hingorani, A.P.P. waives notice for respondents. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. 4. This Petition takes exception to Exhibit `A’, which, in our opinion, is in the nature of communication/report submitted by the Additional Sessions Judge, Pune to the Principal District & Sessions Judge, Pune. 5. The question that was required to be addressed by the Sessions Court on the application made by the petitioner was: whether the petitioner was juvenile in conflict with law on the date of commission of the offence i.e. 22nd April, 1993? That question has to be decided by way of a formal inquiry under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and cannot be done on the administrative side as is sought to be done in the present case. It appears that the District Judge requested the Additional Sessions Jude to submit report on the said question and the latter, after requiring production of the petitioner before him and examining the opinion of the doctor of Sassoon Hospital, Pune and the oral evidence of two witnesses submitted report dated 2nd May, 2011 to the Principal District & Sessions Judge. 6. Suffice it to observe that such administrative inquiry cannot be the basis to determine the question as to whether the petitioner was juvenile in conflict with law on the date of commission of the offence. For, the provisions postulate that the Court has to take evidence as may be necessary 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. As per Rule 12(3), the Court is required to first seek evidence by obtaining the specified certificate in sub-clauses (i) to (iii) of Clause (a) and in absence thereof seek medical opinion from a duly constituted Medical Board. Further, if exact assessment of the age cannot be done, the Court for the reasons to be recorded, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. Further, if exact assessment of the age cannot be done, the Court for the reasons to be recorded, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. Furthermore, while passing order in such cases, the “Court” is expected to record a finding in respect of the age of the person. Finding so recorded by the “Court” alone can be conclusive proof of the age as regards such child or juvenile in conflict with law. 7. In the circumstances, we relegate the petitioner before the Sessions Court for reconsideration of the matter afresh on its own merits in accordance with law without being influenced by the opinion in the report dated 2nd May, 2011 Exhibit `A’ to this Petition. The District and Sessions Judge may either himself inquire into the matter by following necessary procedure under the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Rules framed thereunder or assign the inquiry to any other Judge competent to decide the said question. All aspects in that behalf will have to be considered on its own merits. 8. Petition disposed of on the above terms.