Manohar @ Mannu vs The State (Delhi Admn.)
2009 Latest Caselaw 4844 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                      Date of decision: 26.11.2009


+                          CRL. A. No.82 of 1997


MANOHAR @ MANNU                                   ...APPELLANT
                           Through:    Mr. Navin Chawla, Advocate.


                                 Versus


THE STATE (DELHI ADMN.)                          ...RESPONDENT
                    Through:           Mr.     Pawan      Sharma,
                                       Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?              No

2.        To be referred to Reporter or not?               No

3.        Whether the judgment should be
          reported in the Digest?                          No

SANJAY KISHAN KAUL, J. (Oral)

1. The appellant, Manohar @ Mannu, has been convicted

and sentenced in Sessions Case No.114/1996 arising

out of FIR No.185/1991 registered at P.S. Gandhi Nagar

for having committed the offence punishable under

Sections 302 IPC and sentenced accordingly.

2. The case of the prosecution is that on 13.8.1991,

Veena (deceased) had an altercation with her landlady

Fatto. Fatto asked the deceased to immediately

vacate the house and the appellant, son of Fatto, ________________________________________________________________________

started throwing articles of the deceased from the

house onto the street. On the protest of the deceased,

Fatto caught hold of the deceased. The deceased

managed to release herself from the clutches of Fatto

and ran towards the street. Fatto is stated to have

exhorted the appellant to attack Fatto and when the

deceased was collecting her household goods from the

gali, the appellant gave knife blows to the deceased

causing injuries, which resulted in her death. Fatto

and the appellant were both charged, but in terms of

the impugned judgment, Fatto has been acquitted and

only the appellant was convicted.

3. The appellant aggrieved by the impugned judgment of

conviction dated 13.1.1997 and order of sentence of

the even date, has preferred the present appeal.

4. During the course of arguments, learned counsel for

the appellant, on instructions from the appellant, has

not pressed the grounds of appeal against conviction.

He, however, has submitted that the appellant was a

juvenile in terms of Section 2 (k) of The Juvenile Justice

(Care and Protection of Children) Act, 2000, wherein it

is provided that a „juvenile‟ or a „child‟ means a person

who has not completed eighteenth year of age. Thus,

he is entitled to be dealt with under the provisions of

The Juvenile Justice (Care and Protection of Children)

Act, 2000.

________________________________________________________________________

5. As per order dated 28.10.2009, learned counsel for the

appellant sought to take advantage of the age of the

appellant mentioned in the order on sentence and

statement of accused recorded under Section 313 of

Cr.P.C. to contend that the appellant was a juvenile on

the date of commission of offence, i.e. 13.8.1991. On

such a plea of the learned counsel for the appellant,

appellant was directed to undergo an ossification test.

In terms of the said order the report of the ossification

test was directed to be submitted before the Court on

the next date of hearing, i.e. today.

6. The report of the ossification test dated 21.11.2009

has been placed before us. We have perused the

report of the ossification test carried out at All India

Institute of Medical Sciences (AIIMS), New Delhi. In

terms of the report, the panel of doctors opined the

age of the appellant between 30-35 years on the date

of ossification test. Since the incident is of 13.8.1991,

the appellant would be of age between 12+ and 17+

years and thus would definitely be under 18 years of

age.

7. Learned counsel for the appellant has taken us through

the scheme of The Juvenile Justice (Care and Protection

of Children) Act, 2000 and submitted that Section 2(k)

of the Act has expanded the definition of juvenile by

increasing the age from 16 years to 18 years. He has

submitted that Section 7-A(1) of the Act provides for ________________________________________________________________________

the procedure to be followed when the claim of

juvenility is raised before any court and Section 7-A(2)

provides that if the court finds a person to be juvenile

on the day of commission of offence, 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. He has also drawn our

attention to Section 20 of the Act which deals with the

pending cases of the persons who are covered under

the definition of juvenile because of the definition of

juvenile under Section 2(k) of the Act increasing the

age from 16 to 18 years, and submitted that in view of

the aforesaid provisions of the Act, the order of

sentence awarding life imprisonment to the appellant

is uncalled for and it needs to be modified.

8. In order to appreciate the submissions of learned

counsel for the appellant, it would be useful to

reproduce Section 7-A of The Juvenile Justice (Care and

Protection of Children) Act, 2000, which is as follows:

"7-A 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 recognized 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."

9. From a perusal of Section 7-A of The Juvenile Justice

(Care and Protection of Children) Act, 2000, it

transpires that as per clause (1), whenever a claim of

juvenility is raised before any Court, the Court shall

make an inquiry and take such 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 precise age as

nearly as possible.

10. Section 20 of The Juvenile Justice (Care and Protection

of Children) Act, 2000 provides for the procedure to be

followed in respect of pending cases pertaining to the

juveniles in any court in any area on the date on which

the Act comes into force in that area. It provides that

such pending cases against the juvenile shall continue

in the said courts as if this Act has 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 juvenile, forward

the case to the Board which shall pass appropriate

________________________________________________________________________

orders in respect of that juvenile in accordance with

the provisions of the Act.

11. Since the appellant has conceded his pleas against the

impugned judgment of conviction on merits, we

dismiss the appeal to that extent. So far as the appeal

against the order of sentence is concerned, we have

already concluded above that the appellant was a

juvenile on the date of commission of offence as his

age then was less than 18 years. Clause 2 of Section

7-A and Section 20 of The Juvenile Justice (Care and

Protection of Children) Act, 2000 provides that if the

Court finds a person to be juvenile in terms of

definition under Section 2(k) of the Act on the date of

commission of offence, it shall forward the juvenile to

the Juvenile Justice Board for passing appropriate

orders, and the sentence if any, awarded by a Court

shall be deemed to have no effect. The import of this

provision is that sentence awarded by the learned trial

Judge in terms of the impugned order of sentence will

have no effect and the matter has to be referred to the

Juvenile Justice Board for passing appropriate orders.

We may, however, note that as per Section 15 of The

Juvenile Justice (Care and Protection of Children) Act,

2000, the maximum period for which a juvenile can be

sent to a Special Home is three years. As per the

nominal roll of the appellant, the appellant has already

served the maximum period of three (3) years. ________________________________________________________________________

12. In view of the fact that the appellant has suffered

incarceration for the maximum period of detention in

Special Home permissible under The Juvenile Justice

(Care and Protection of Children) Act, 2000, we do not

deem it appropriate to refer the matter back to the

Juvenile Justice Board for passing appropriate orders

and direct formal release of the appellant in the

present appeal.

13. The appeal is partly accepted and order on sentence is

modified accordingly.

14. Bail-cum-surety bonds of the appellant stand

discharged.

SANJAY KISHAN KAUL, J.

NOVEMBER 26, 2009                               AJIT BHARIHOKE, J.
b'nesh

________________________________________________________________________