Delhi High Court
Nanhey vs The State, Govt. Of Nct Of Delhi on 4 September, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 04.09.2009
+ CRL. A. No.260 of 1996
NANHEY ...APPELLANT
Through: Mr.Rajpal Singh, Advocate.
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
reported in the Digest? No
SANJAY KISHAN KAUL, J. (Oral)
1. The appellant Nanhey has been convicted and sentenced in
Sessions Case No.96/96 arising out of FIR No.63/89
registered at PS Mansrovar Park for having committed the
offences punishable under Sections 302 and 392 of IPC and
sentenced accordingly.
2. Feeling aggrieved by the impugned judgment of conviction
dated 18.10.1996 and order on sentence of the even date,
the appellant has preferred the instant appeal.
3. During the pendency of the appeal, the appellant moved an
application being Crl.M.A.9374/2009 under Section 482 of
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Cr.P.C. alleging that he was a juvenile on the date of
commission of offence and prayed for determination of his
age in terms of The Juvenile Justice (Care and Protection of
Children) Act, 2000 („the said Act‟ for short) as amended up
to date and Rules framed thereunder and grant of benefits
under said Act and Rules framed thereunder.
4. In support of his prayer, the appellant filed photocopy of his
School Leaving Certificate wherein his date of birth is shown
as 08.07.1972 suggesting that on 10.04.1989, date of
commission of offence, he was a juvenile being under 18
years of age.
5. The respondent was accordingly directed to verify the
authenticity of the said School Leaving Certificate and as
per the reports submitted by the SHO Police Station:
Mansarovar Park dated 02.09.2009, it has been confirmed
that the School Leaving Certificate submitted by the
appellant is genuine and the Head Master of the Primary
School, Rohada, Lal Ganj, Partap Garh, UP has certified that
as per their school records, the appellant Nanhey s/o Ram
Dev, R/o Village Lachhidadi Kunda, Partap Garh, UP was
admitted in the school on 16.07.1979 and left the school on
30.06.1983 after 4th standard and as per the school records,
his date of birth is 08.07.1972.
6. In view of the said position, learned counsel for the
respondent has not disputed that the age of the appellant
on the date of commission of offence was less than 18
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years, to be precise, the age was 16 years 9 months and 3
days. Thus, it is obvious that he was a juvenile as per
Section 2 (k) of the said Act wherein it is provided that a
„juvenile‟ or a „child‟ means a person who has not
completed eighteenth year of age.
7. During the course of arguments, learned counsel for the
appellant, on instructions from the appellant, submitted that
the appellant does not wish to press the appeal on merits
and prayed for grant of benefit under 7-A of the said Act to
him.
8. In order to appreciate the submissions of learned counsel
for the appellant, it would be useful to reproduce Section 7-
A of the said Act, 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
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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 said Act, 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. We have already concluded above that the appellant
was a juvenile on the date of commission of offence as his
age then was 16 years 9 months and 3 days. Clause 2 of
Section 7-A of the said Act provides that if the Court finds a
person to be juvenile 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, passed
by a Court shall be deemed to have no effect. The import of
this provision is that sentence awarded by the impugned order
of sentence will have no effect and the matter ought to be
referred to the Juvenile Justice Board for passing appropriate
orders. We may, however, note that as per Section 15 of the
said Act, 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 Nanhey has already suffered
detention for a period of more than nine years.
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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
said Act, 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 accordingly disposed of.
13. Bail-cum-surety bonds of the appellant are cancelled
and discharged.
SANJAY KISHAN KAUL, J.
SEPTEMBER 04, 2009 AJIT BHARIHOKE, J.
dm
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