Delhi High Court
Vinod Kumar vs The State, Govt. Of Nct Of Delhi on 5 October, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 05.10.2009
+ CRL. A. No.152 of 1995
VINOD KUMAR ...APPELLANT
Through: Mr.Salim A.Khan,
Mr.Ashish Lal,
Ms.Sophiya Salim
and Mr.Vineet, Advocates.
Versus
THE STATE, GOVT. OF NCT OF DELHI ...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 No
reported in the Digest?
SANJAY KISHAN KAUL, J. (Oral)
1. The appellant Vinod Kumar has been convicted and
sentenced in Sessions Case No. 160/94 arising out of FIR
No.50/90 registered at PS Gandhi Nagar for having committed
the offence punishable under Sections 302, IPC and sentenced
accordingly.
2. Feeling aggrieved by the impugned judgment of
conviction dated 30.05.1995 and order on sentence of the even
date, the appellant has preferred the instant appeal.
3. 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.
4. As per record, during trial an application was moved by
the appellant seeking bail on the ground that he was a juvenile
i.e. below 16 years of age at the time of commission of offence.
The application was supported by his School Leaving Certificate
which was issued by the Principal of the Middle School,
Madayan, District Etawa, UP wherein his date of birth is shown
as 30.12.1994. The learned Trial Court, in order to satisfy itself
about age of the appellant, referred him for medical
examination. As per the report of the Radiologist, as on
09.01.1991, the age of the appellant was more than 18 years
but no specific age range was given in the report.
5. Learned counsel for the respondent/State has not
challenged the authenticity of the School Leaving Certificate of
the appellant available on the record. Therefore, we are of the
view that the date of birth of the appellant is 30.12.1974.
Going by the said date of birth of the appellant, the age of the
appellant on the date of commission of offence, i.e. 13.03.1990
was around 16 years. Therefore, he falls within the definition of
juvenile as mentioned under Section 2(k) of The Juvenile
Justice (Care and Protection of Children) Act, 2000. Even if, we
go by the report of the Radiologist, then also, the age of the
appellant as on 09.01.1991 was slightly above 18 years and
after giving discount of time gap between 09.01.1991 and the
date of offence (13.03.1990), the age of the appellant on the
date of offence would be around slightly more than 17 years
but under 18 years and qualify him to get benefit under The
Juvenile Justice (Care and Protection of Children) Act, 2000.
6. 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.
7. 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."
8. 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.
9. 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.
10. 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 suffered
detention for a period of more than nine and a half years.
11. In view of the fact that the appellant has suffered
incarceration for a period which is more than 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.
12. The appeal is partly accepted and order on sentence is
modified accordingly.
13. Bail-cum-surety bonds of the appellant are cancelled
and discharged.
SANJAY KISHAN KAUL, J.
OCTOBER 05, 2009 AJIT BHARIHOKE, J.
dm
