Lal Mohammad vs The State (Govt Of Nct Delhi )
2009 Latest Caselaw 1981 Del

           THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: 12.05.2009

+ CRL. M. B. 1551/2008 IN CRL. APPEAL No. 1027/2008

LAL MOHAMMAD                                             ..... Appellant

                                       versus


THE STATE (GOVT OF NCT DELHI )                           ..... Respondent

Advocates who appeared in this case:

For the Appellant : Mr B. K. Kapoor For the Respondent/State : Mr M. N. Dudeja, APP

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE P. K. BHASIN

1. Whether Reporters of local papers may be allowed to see the judgment? YES

2. To be referred to the Reporter or not? YES

3. Whether the judgment should be reported in Digest? YES

BADAR DURREZ AHMED, J (ORAL)

1. This is an application for suspension of sentence and grant of

bail filed on behalf of the appellant Lal Mohammad. During the

pendency of this application, the Supreme Court has made a definitive

pronouncement with regard to the question of juvenility in the case of

Hari Ram v. State of Rajasthan and Anr.: Criminal Appeal

No. 907/2009 decided on 05.05.2009. The said decision in Hari Ram

(supra) has taken into account the earlier Constitution Bench decision

of the Supreme Court in the case of Pratap Singh v. State of

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.1 of 13 Jharkhand and Anr.: (2005) 3 SCC 551 as also the subsequent

amendments introduced by virtue of the Juvenile Justice (Care and

Protection of Children) Amendment Act, 2006 (hereinafter referred to

as „the Amendment Act of 2006‟) and particularly the amendment

carried out in Section 2(l) and insertion of Section 7A in the Juvenile

Justice (Care and Protection of Children) Act, 2000 (hereinafter

referred to as the „Juvenile Justice Act‟).

2. Before we examine the legal aspects, it would be appropriate

if we set out the factual background with regard to the question of

juvenility of the appellant Lal Mohammad. Initially, at the stage of

trial, the present appellant had raised the issue of his being a juvenile.

The same was considered by the learned Additional Sessions Judge,

who directed that the juvenile along with the documents submitted by

him in support of his claim be forwarded to the Juvenile Justice Board

for conducting an enquiry and for submitting a report in this regard. As

per the Juvenile Justice Board, the appellant Lal Mohammad was found

to be of 15 years and 3 months on the date of his arrest i.e. 18.11.2000.

The date of offence, which is of kidnapping and murder of Vikas

Bhandari, was 13.11.2000. The finding returned by the Juvenile

Justice Board was assailed in Criminal Appeal No. 81/2003 which was

disposed of by an order dated 08.10.2003 whereby the matter was

remanded to the Juvenile Justice Board with the direction to reconsider

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.2 of 13 the record and to consider the relevant documents available on record

and to consider the deposition of the Head Master of the school in

which the appellant is said to have studied. Thereafter the Juvenile

Justice Board found that the school records had not been properly

maintained and there was great suspicion about the genuineness of the

admission entry of the appellant Lal Mohammad. The Board,

therefore, proposed that the age of the appellant Lal Mohammad be

determined by a duly constituted Medical Board. Consequently, the

file was sent back to the Court of the learned Additional Sessions

Judge, who, by an order dated 06.01.2004, directed the determination

of the age of the appellant by a duly constituted Medical Board of the

All India Institute of Medical Sciences. According to the report of the

said Medical Board, the appellant was found to be of 21 years of age on

19.01.2004. This being the position, the learned Additional Sessions

Judge was of the view that as per the Medical Board‟s finding, the

appellant Lal Mohammad was more than 17 years of age on the date of

commission of the offence, that is, on 13.11.2000. Consequently, the

learned Additional Sessions Judge rejected the claim of the appellant

Lal Mohammad to be treated as a juvenile as he was more than 16 years

of age under the Juvenile Justice Act, 1986.

3. Being aggrieved by the said decision a Criminal Revision

Petition bearing No. 310/2004 was filed before a learned Single Judge

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.3 of 13 of this Court, who declined to interfere with the order passed by the

learned Additional Sessions Judge and dismissed the revision petition.

4. The matter rested there till the trial in this case. At the time

of trial, it had been argued by the counsel on behalf of the appellant Lal

Mohammad that Lal Mohammad was a juvenile. However, the Trial

Court felt that the issue could not be agitated at that stage for the reason

that the High Court had already dismissed the revision petition of Lal

Mohammad in which he had assailed the order of the learned

Additional Sessions Judge dated 19.04.2004 whereby the said Court

declined to accept appellant‟s request to be treated as a juvenile. The

Trial Court rejected the plea of juvenility raised by the appellant in the

following manner:-

"44. In his written submission by accused Lal Mohd. Almost similar points as referred by accused Rajneesh have been raised by counsel Sh. D.K. Sharma. It has been vehemently pleaded that the entire evidence against accused Lal Mohd. is to be appreciated keeping in view the fact that he is a juvenile. This issue cannot be agitated at this stage for the reason that Hon‟ble Justice Ms. Manju Goel in this very case reported in 2005 (2) JCC 660 titled Lal Mohd. Vs. State dismissed the revision of Lal Mohd. wherein he had assailed the order dated 19.04.2004 of Ld.

Session Court vide which, the Session Court declined to accept Lal Mohd. to be treated as Juvenile. Lal Mohd. was opined as 21 years of age on 19.01.2004 as per report of Medical Board of AIIMS whereby meaning that on the date of commission of offence i.e. 13.11.2000 he was more than 17 years of age. He was to be therefore governed as per the definition of the Juvenile available in Juvenile Justice Act 1986 according to which boy up to the age of 16 years is to be treated as Juvenile. Counsel has also relied on the

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.4 of 13 authority reported in Manu/S.C./0230/2005 and AIR 2005 SC 2262 titled Bijender Singh Vs. State of Haryana which dealt with application of Juvenile Justice (Care & Protection of Children Act 2000) vis-à-vis Juvenile Justice Act 1986 wherein the Principles laid down in the case of Pratap Singh Vs. State of Jharkhand & Anr. was reiterated by Hon‟ble Apex Court. It inter alia held:-

(a) The reckoning date for the determination of the age of Juvenile is the date of offence and not the date when he is produced before the Authority or in the Court.

(b) The 2000 Act would be applicable in a pending proceeding in any Court/Authority initiated under 1986 Act and is pending when the 2000 Act came into force and person had not completed 18 years of age as on 01.04.2001.

45. In this case the Hon‟ble Justice Manju Goel of our own High Court upheld the age of accused Lal Mohd. as 21 years as on 19.01.2004. If computation is made backward, on 19.01.2001 accused was 18 years in age this reflects that on 01.04.2001 age of accused was more than 18 years so the Authority relied on by the defence as referred above are not applicable to accused Lal Mohd. He was major on date of offence legally. ..."

5. From the above, it is apparent that as on the date of the

offence, that is, on 13.11.2000, the appellant was approximately 17

years and 10 months old. This is so because, according to the Medical

Board, his age has been determined to be 21 years as on 19.01.2004.

This clearly indicates that the appellant Lal Mohammad was below the

age of 18 years on the date of the offence. However, he crossed the age

of 18 years on 19.01.2004 and was over 18 years of age on 01.04.2001

when the Juvenile Justice Act came into force. It was in view of this

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.5 of 13 that the Trial Court, following the decision of the Supreme Court in

Pratap Singh's case (supra), rejected the plea of the appellant Lal

Mohammad with regard to his being a juvenile. Two points were

decided by the Supreme Court in Pratap Singh's case (supra). They

are:-

"(a) The reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court.

(b) The 2000 Act would be applicable in a pending proceeding in any court/authority initiated under the 1986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001."

(underlining added)

6. However, subsequent to the said Constitution Bench

decision, notable amendments were introduced in the Juvenile Justice

Act by the Amendment Act of 2006. Unfortunately, these amendments

were not noticed by the Trial Court although the decision of the Trial

Court was rendered on 15.05.2008, much after the amendments had

been introduced. The definition of „juvenile in conflict with law‟ was

amended and the new Section 2 (l) reads as under:-

„2(l) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;

Section 7A was inserted, which reads as under:-

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.6 of 13 "7A. Procedure to be followed when claim of juvenility is raised before any court.-- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) 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:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect."

(underlining added)

Section 15 (1) (g) was also amended and the amended provision reads

as under:-

"15. Order that may be passed regarding juvenile.-- (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 thinks so fit,-

        (a) xxxx            xxxx       xxxx   xxxx

        (b) xxxx            xxxx       xxxx   xxxx

        (c) xxxx            xxxx       xxxx   xxxx

        (d) xxxx            xxxx       xxxx   xxxx

        (e) xxxx            xxxx       xxxx   xxxx

        (f) xxxx            xxxx       xxxx   xxxx

CRL. M.B. 1551/08 IN CRL. A.1027/ 08                             Page No.7 of 13

(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.

        (2) xxxx            xxxx       xxxx   xxxx

        (3) xxxx            xxxx       xxxx   xxxx

        (4) xxxx            xxxx       xxxx   xxxx


Similarly, an amendment was made in Section 16 also.                The said

provision, after the amendment of 2006, reads as under:-

"16. Order that may not be passed against juvenile.-- (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security :

Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is of so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government.

(2) On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit:

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.8 of 13 Provided that the period of detention so ordered shall not exceed in any case the maximum period provided under section 15 of this Act."

(underlining added)

Similarly, Section 20 also saw an amendment and, post-amendment,

the said provision reads as under:-

"20. Special provision in respect of pending cases.-- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.

"Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.-- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed."

(underlining added)

7. The Supreme Court, in the said recent decision in Hari Ram

(supra), considered the amendments introduced by the Amendment Act

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.9 of 13 of 2006 as also its earlier decision in Pratap Singh's case (supra) and

observed as under:-

"37. Of the two main questions decided in Pratap Singh's case (supra), one point is now well established that the juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate. The effect of the other part of the decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, whereunder the provisions of the Act were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of the offence. The law as now crystallized on a conjoint reading of Sections 2(k), 2(l), 7A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1st April, 2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted."

From the aforesaid extract, it is obvious that the requirement indicated

in Pratap Singh‟s case (supra) that the juvenile should not have

completed the age of 18 years as on 01.04.2001 has been neutralized by

virtue of the amendments to the Juvenile Justice Act, 2000 brought

about by the Amendment Act of 2006. The result of the amendments

was that the Juvenile Justice Act was also made applicable to juveniles

who had not completed 18 years of age on the date of the commission

of the offence but had completed 18 years of age by 01.04.2001. The

Supreme Court categorically held that the law as now crystallized on a

conjoint reading of Sections 2(k), 2(l), 7A, 20 and 49 read with Rules

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.10 of 13 12 and 98, made it clear beyond all doubt that all persons who are

below the age of 18 years on the date of commission of the offence

even prior to 01.04.2001, would be treated as juveniles, even if the

claim of juvenility was raised after they have attained the age of 18

years on or before the date of commencement of the Act and were

undergoing sentence upon being convicted. In the present case, we

find that the appellant Lal Mohammad was below 18 years of age on

the date of commission of the offence, that is, on 13.11.2000. That is

the only circumstance which now requires to be considered. It does not

matter as to whether he had or had not crossed the age of 18 years on

01.04.2001. This being the position, the appellant Lal Mohammad has

to be regarded as a juvenile in conflict with law under the Juvenile

Justice Act, 2000 as amended by the Amendment Act of 2006. As the

provisions set out above indicate, such a plea can be taken at any stage.

The appellant has taken that plea before us and, therefore, on the basis

of facts already determined, the appellant Lal Mohammad has to be

regarded as a juvenile under the said Act. That being the position, even

if he is found to have committed the offence for which he was charged,

he could not be sentenced or detained for a period in excess of three

years in view of the provisions of Section 15 (1) (g) read with Section

16(1) and the proviso to Section 16 (2) of the Juvenile Justice Act,

2000.

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.11 of 13

8. The appellant Lal Mohammad has been sentenced to life

imprisonment and he had also undergone 8 years 3 months and 26 days

in custody as on 04.04.2009 as per the nominal roll submitted by the

Superintendent, Central Jail No. 5, Tihar, New Delhi on 04.04.2009.

This makes it clear that the appellant Lal Mohammad, who is to be

considered as a juvenile under the Juvenile Justice Act, 2000, has

already spent a period far in excess of the maximum period of detention

which could have been passed under the said Act. Consequently,

whichever way his appeal is decided, he cannot be detained any further.

Even if he is found to be guilty of having committed the offence, he

could not have been „sentenced‟ for a period in excess of three years.

Furthermore, he could not have been sent to prison and he ought to

have been directed to be kept in a special home and if it was unsafe to

keep him in a special home under the circumstances given in Section

16 (1), he could be kept under protective custody at a place of safety as

defined in Section 2 (q) of the said Act. However, even such detention

or protective custody at such a place of safety cannot exceed the

maximum period provided under Section 15, which is a period of three

years. Thus, whichever way we look at the question of release from

detention, the only answer is that the appellant Lal Mohammad is

entitled to be released forthwith. If he is to be acquitted, it is obvious

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.12 of 13 that he is to be released. Even if he is to be convicted, his detention

and custody beyond three years is not permissible under law.

9. As a result, we dispose of this application by directing the

release of the appellant Lal Mohammad forthwith. The question as to

whether he has been rightly convicted and as to whether even the

„sentence‟ to the extent of three years could have been passed against

the appellant Lal Mohammad would be considered on merits at the time

of hearing of the appeal.

BADAR DURREZ AHMED, J

P. K. BHASIN, J May 12, 2009 SR

CRL. M.B. 1551/08 IN CRL. A.1027/ 08 Page No.13 of 13