The central legal point established in the judgment is the retrospective application of amended Juvenile Justice Acts and the procedure to be followed when a claim of juvenility is raised before any court. The court's decision emphasizes the importance of considering the claim of juvenility and sets a precedent for maintaining the conviction while setting aside the sentence in cases of juvenility.

JUDGMENT :

R.K. Gauba, J.

The appellant along with one another (Arun Kumar) was tried by the court of additional sessions judge in sessions case (26/2000) registered on the basis of report (charge-sheet) under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) submitted upon conclusion of investigation into first information report (FIR) no. 454/1997 of police station Kamla Market and was held guilty, by judgment dated 12.10.2001, on charge for offence under Section 392/34 IPC read with Section 397 of Indian Penal Code, 1860 (IPC). By subsequent order dated 16.10.2001, the trial Judge awarded rigorous imprisonment for five years with fine of Rs. 3,000/- on charge under Section 392/34 IPC besides rigourous imprisonment for seven years with fine of Rs. 3,000/- separately for offence under Section 397 IPC.

2. The present appeal was filed challenging the said judgment and order on sentence in December, 2001. The appeal, however, was not prosecuted diligently, the appellant having avoided appearance, this leading to the appeal being dismissed for non-prosecution by order dated 21.01.2014 of a learned single judge of this Court, reference having been made in that regard to the ruling of a division bench of this Court in Mukesh vs. State, (2008) 152 DLT 201 (DB).

3. In the wake of directions in the order dated 21.01.2014, whereby the trial court had been called upon to take steps to ensure that the appellant was taken in custody to serve the remainder of the sentence (he having been earlier released on bail pending adjudication of the appeal), the appellant was arrested, he having been found to be in judicial custody in another case i.e. FIR No. 27/2009 of police station Special Cell since 11.03.2019. Two applications - Crl.M.A. 10607/2019 (for recall of order dated 21.01.2014) and Crl.M.A. 10608/2019 (for condonation of delay) - have been moved on his behalf. He has been called from jail on production warrant for hearing on the said applications. For reasons set out in the application, the delay is condoned.

4. The registry has placed before the Court a computer generated record of the appeal on the basis of its scanned copy. The learned counsel for the appellant, submitted, at the outset, that he does not press the appeal insofar as it challenged the conviction on merits, his only prayer being for re-visit to the question of sentence, this on the basis of finding which was reported after inquiry confirming the plea raised by the appellant at earlier stages of the appeal as to his juvenility at the relevant point of time.

5. It is noted from the record that the case involved three persons as accused including the appellant herein (he being shown in the array as A-2). The prime accused Raju (A-1) had absconded and was declared proclaimed offender, the proceedings against him not having concluded with the impugned order dated 12.10.2001. The other person who was also brought to trial viz. Arun Kumar (A-3) had been found guilty on the charge under Section 392/34 IPC, he having been awarded rigorous imprisonment for five years with fine of Rs. 3,000/- only. It is pointed out by the additional public prosecutor that Criminal Appeal no. 429/2002 brought by Arun Kumar (A-3) was decided by a learned single judge of this court on 21.01.2014, the same date on which the appeal was disposed of for non-prosecution. In the case of co-convict Arun Kumar (A-3), the learned single judge found sufficient grounds to reduce the rigour of the sentence, treating the period of incarceration (three years nine months) as sufficient to meet the ends of justice.

6. The record of appeal shows that while pressing for suspension of sentence, by application (Crl.M.1543/2003), the appellant herein had taken the plea that on the date of the robbery (03.10.1997) he was less than sixteen years in age, reliance being placed in this regard on certificate of Central Board of Secondary Education (CBSE) reflecting his date of birth to be 08.01.82. The learned single J