Delhi High Court
Sunder @ Sanju vs State on 23 April, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd April, 2010
+CRL.M.B.NO.42/2010 & CRL. APPEAL NO. 40/2010
SUNDER @ SANJU ....APPELLANT
Through: Mr.V.Madhukar, Advocate
VERSUS
STATE ....RESPONDENT
Through: Mr. Lovkesh Sawhney, APP
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
AJIT BHARIHOKE,J. (ORAL)
1. Appellant Sunder @ Sanju has preferred this appeal against the
impugned judgment in Sessions Case No.40/2001 arising out of FIR
No.339/2000 P.S. Mangol Puri convicting him for the offences under
Sections 120B IPC, 302 IPC read with Section 120B IPC and 324 IPC read
with Section 34 IPC.
2. Briefly put, case of the prosecution is that on 16.04.2000, appellant
Sunder @ Sanju entered into a criminal conspiracy with his co-accused
Vikas, Sanjeev, Mohd. Abdul Hamid and Bhawishan Singh @ Vijay to
commit murder of Sanjay s/o Kashi Ram and in furtherance of the
conspiracy committed murder of Sanjay on 16.04.2000 at about 7.15 p.m.
in front of H.No.T-1302, Mangol Puri, Delhiand caused simple injury with
sharp object to Lakhpati and Raj Kapoor Singh.
3. During the pendency of the appeal, the appellant moved an
application being Crl.M.B.No.42/2010 under Section 389 Cr.P.C. in which
one of the pleas raised by the learned counsel for the appellant was that
the appellant was a juvenile on the date of commission of the 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 benefit
under said Act and Rules framed thereunder. In support of his prayer, the
appellant filed photocopy of his School Leaving Certificate wherein his
date of birth is shown as 19.06.1982 suggesting that on 16.04.2000, the
date of commission of the offence, he was a juvenile being under 18
years of age.
4. 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 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."
5. 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.
6. Since the appellant raised the issue of juvenility at the time of
commission of offence, the respondent was directed to verify the
authenticity of the said School Leaving Certificate and as per the report
submitted by the SHO, P.S. Mangol Puri, Delhi, it has been confirmed that
the School Leaving Certificate submitted by the appellant is genuine. As
per the certificate, date of birth of the accused is 19.06.1982 suggesting
that the appellant was less than 18 years, to be precise, the age was 17
years, 09 months and 27 days, on the date of commission of offence i.e.
16.04.2000. Thus, he was a juvenile as per Section 2 (K) of the said Act.
7. During the course of arguments, learned counsel for the appellant,
on instructions from the appellant, who is present in the Court submitted
that the appellant admits his guilt and does not press his appeal on merits
and prayed for grant of benefit under the provisions of the Juvenile Justice
Act to him.
8. Section 20 of the said Act 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.
9. We have already concluded above that the appellant was a juvenile
on the date of commission of offence and his age was 17 years 09 months
and 27 days i.e. less than 18 years. Clause 2 of Section 7-A of the said Act
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 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, the appellant has already undergone detention for more
than 3 years.
10. 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.
11. We may note that the appeals if any of co-accused persons, who
were major on the date of commission of offence are to be dealt with on
their own merits.
12. The appeal is partly accepted and order on sentence is modified
accordingly.
13. The appellant is in jail. He be released forthwith if not required in
any other case.
14. The application and the appeal itself stand disposed of.
A.K. SIKRI, J.
AJIT BHARIHOKE,J
APRIL 23, 2010
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