Delhi High Court
Chander Kumar vs State Of N.C.T. Of Delhi on 23 July, 2010
Author: Sanjiv Khanna
01
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 87/2002
CHANDER KUMAR ..... Appellant
Through: Ms. Neelam Grover, Adv.
Versus
STATE N.C.T. OF DELHI ..... Respondent
Through: Mr. Arvind Kr. Gupta, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 23.07.2010
1. Initially proceedings against the appellant were initiated under the
Juvenile Justice Act, 1986. By order dated 13th May, 1999, the Juvenile
Court recorded that the appellant herein Mr.Chander Kumar was above the
age of 16 years on the date of commission of the offence and therefore, the
Investigating Officer should file a supplementary charge sheet before the
concerned adult Court.
2. The supplementary charge sheet was filed and by the impugned
judgment dated 25th January, 2002, the appellant has been convicted
under Section 307/34 of the Indian Penal Code (IPC for short) and by
order dated 25th January, 2002 sentenced to rigorous imprisonment of five
years and fine of Rs.1,000/- and in default suffer further rigorous
imprisonment for one month.
3. The appeal filed by the appellant was admitted vide order dated 11th
CRL.A.87/2002 Page 1
February, 2002 and has remained pending since then.
4. In the meanwhile, Juvenile Justice (Care and Protection of Children)
Act, 2000 was enacted and the earlier enactment Juvenile Justice Act,
1986 stands repealed. The effect of the repeal and enactment of Juvenile
Justice (Care and Protection of Children) Act, 2000 and amendments was
examined by the Supreme Court in Hari Ram Vs. State of Rajasthan
reported in (2009) 13 SCC 211 and it has been observed as under:-
"58. 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, neutralized 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.
59. 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 Ist 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.
60. The instant case is covered by the amended
provisions of Section 2(k), 2(l), 7A and 20 of the
Juvenile Justice Act, 2000. However, inasmuch as, the
appellant was found to have completed the age of 16
years and 13 days on the date of alleged occurrence, the
High Court was of the view that the provisions of the
Juvenile Justice Act, 1986, would not apply to the
appellant's case. Of course, the High Court, while
deciding the matter, did not have the benefit of either
the amendment of the Act or the introduction of the
Juvenile Justice Rules, 2007.
61. Even otherwise, the matter was covered by the
decision of this Court in the case of Rajinder Chandra's
case (supra), wherein this Court, inter alia, held that
when a claim of juvenility is raised and on the evidence
CRL.A.87/2002 Page 2
available two views are possible, the Court should lean
in favour of holding the offender to be a juvenile in
borderline cases.
62. In any event, the statutory provisions have been
altered since then and we are now required to consider
the question of the claim of the appellant that his date of
birth was Kartik Sudi 1, Samvat Year 2039, though no
basis has been provided for the fixation of the said date
itself in the light of the amended provisions. Often,
parents of children, who come from rural backgrounds,
are not aware of the actual date of birth of a child, but
relate the same to some event which may have taken
place simultaneously. In such a situation, the Board
and the Courts will have to take recourse to the
procedure laid down in Rule 12, but such an exercise is
not required to be undertaken in the present case since
even according to the determination of the appellant's
age by the High Court the appellant was below eighteen
years of age when the offence was alleged to have been
committed.
63. Having regard to the views expressed
hereinabove, we are unable to sustain the impugned
order of the High Court in holding that the provisions of
the Juvenile Justice Act, 1986, would not be applicable
to the appellant's case since he was allegedly 13 days
above the age prescribed.
69. The said position was re-emphasized by virtue of
the amendments introduced in Section 2C of the 2000
Act, whereby the Proviso and Explanation were added to
Section 20, which made it even more explicit that in all
pending cases, including trial, revision, appeal and any
other criminal proceedings in respect of a juvenile in
conflict with law, the determination of juvenility of such
a juvenile would be in terms of clause (l) of Section 2 of
the 2000 Act, and the provisions of the Act would apply
as if the said provisions had been in force when the
alleged offence was committed."
5. In view of the aforesaid legal position, the appeal has to be allowed
on the ground that the appellant was a juvenile as defined in Section 2(k)
of the Juvenile Justice (Care and Protection of Children) Act, 2000, as he
was below the age of 18 years at the time of commission of offence. The
matter is accordingly remitted to the Juvenile Justice Board for disposal in
CRL.A.87/2002 Page 3
accordance with law. The appellant as per the nominal roll has been in Jail
for a period of one year and two months. The petitioner will continue to
remain on bail, subject to further orders, which may be passed by the
Juvenile Justice Board. The appellant will appear before the Juvenile
Justice Board on 16th August, 2010. Trial court record will also be sent to
the Juvenile Justice Board.
Dasti.
SANJIV KHANNA, J.
JULY 23, 2010
J
CRL.A.87/2002 Page 4
