IMPORTANT POINT
The main legal point established is that juvenility can be raised at any stage, even after final disposal of the case, and the court must consider the delay in filing the application and the contentions of the prosecution.

ORDER :

K. Lakshman, J.

Heard Mr. M.A.Shakeel, learned counsel for the petitioner and Sri T.V.Ramana Rao, learned Addl.Public Prosecutor.

2. This revision is filed challenging the order dated 19.11.2018 passed in Crl.M.P.No.36 of 2018 in S.C.No.297 of 2005 by III Additional District and Sessions Judge, Asifabad.

3. A case in Cr.No.155 of 2004 was registered against the petitioner herein by P.S.Kagaznagar for the offences punishable under Sections 376 and 304 of IPC. On completion of investigation, the Investigating Officer laid charge sheet and the same was taken on file vide S.C.No.297 of 2005. The allegations leveled against the petitioner herein are that he raped and killed a minor girl namely Simran Anjum, a UKG student in Fathima Convent in Kagaznagar. Vide judgment dated 25.09.2006, the Court below convicted the petitioner/accused on both counts and sentenced with imprisonment for life. Feeling aggrieved by the said judgment, the petitioner herein preferred an appeal vide Crl.A.No.1623 of 2006. A Division Bench of this Court vide judgment dated 15.04.2009 dismissed the said appeal. The SLP filed by the petitioner/accused was also dismissed by the Apex Court on 22.02.2010.

4. Thereafter, the petitioner herein filed an application vide Crl.M.P.No.36 of 2018 under Section 9(2) of the Juvenile Justice (care and protection of children) Act, 2015 (for short, ‘the Act’) before the learned III Additional Sessions Judge (FTC) with a prayer to enquire by ascertaining the age of the petitioner by examining the documents produced and send the petitioner to juvenile justice Board. The same was dismissed vide order dated 19.09.2018. Challenging the said order, the petitioner filed the present revision.

5. This revision was listed before the learned Single Judge of this Court, initially, who in turn opined that the matter shall be heard by a Division Bench. The Hon’ble the Chief Justice, vide note dated 10.08.2022 directed the Registry to list this matter before us.

6. The petitioner filed the aforesaid application vide Crl.M.P.No.36 of 2008 on the following grounds:-

i. He was provided with legal aid and the counsel appearing on his behalf failed to request the trial Court to determine the age of the petitioner.

ii. Even in the Appeal and SLP, the said plea was not taken due to lack of proper advice. However, the issue of juvenility may be raised at any point of time, even after final disposal of the case. He was 15 years old at the time of the alleged incident and he is a juvenile, a child in conflict with the law and therefore, he is entitled to benefit under the provisions of the Act.

iii. He has filed date of birth certificate issued by Chandrapur City Municipal Corporation, Health Department, Government of Maharashtra. He has studied upto VI Standard, City Higher Secondary School, Chandrapur (M.S.) According to which his date of birth is 09.01.1989. He has also filed leaving certificate dated 05.04.2003.

iv. According to the said certificate, he was only 15 years as on the date of incident i.e. 02.12.2004.Therefore, he is entitled for the benefit of juvenile though it was not raised earlier.

7. The same was opposed by the learned Addl. Public Prosecutor on the following grounds:-

i. The petitioner herein failed to raise the said ground either before the trial Court or before the appellate Court and even before the Apex Court.

ii. Section 7-A of the Act, 2000 came into force w.e.f. 22.08.2006. Whereas, the alleged incident took place only on 02.12.2004. Therefore, the said amendment is only prospective and it has no retrospective effect.

iii. There is delay in filing the aforesaid application and the petitioner herein filed the said application by creating documentary evidence. Therefore, considering the said aspects, the court below rightly dismissed the application filed by the petitioner.

iv. There is no error in it.

8. The Court below vide order dated 19.11.2018, dismissed the said application on the ground that Section 7-A of the Act was in