Dharamvir vs State
2010 Latest Caselaw 4778 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment delivered on: October 08, 2010

+       WRIT PETITION (CRL.) No.1432/2009

        DHARAMVIR                           ....PETITIONER
               Through: Mr.Sumeet Verma, Advocate

                         Versus

        STATE                                    .....RESPONDENT

Through: Mr.Saleem Ahmed, Additional Standing Counsel with S.I.Dhirender.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. Petitioner Dharamvir stands convicted in the trial based upon FIR

No.529/96 P.S. Sultan Puri for the offences punishable under Section

302/120B/34 IPC and Section 27 of the Arms Act. He was sentenced to

undergo imprisonment for life, besides fine, by the learned Additional

Sessions Judge vide order dated 31.01.2000.

2. The petitioner preferred an appeal against his conviction and

order on sentence, being Crl.A.No.222/2000 which was dismissed by

the High Court of Delhi on 15.05.2002. Even the SLP filed by the

petitioner against the dismissal of his appeal was dismissed by the

Supreme Court on 16.10.2003.

3. As per the nominal roll submitted by the Jail Superintendent, the

petitioner has already undergone incarceration for a period of 12 years

5 months and 25 days as on 23.08.2009. It is alleged by the petitioner

that he was a juvenile on the date of commission of offence, therefore

his case ought to have been dealt with under the provisions of Juvenile

Justice (Care and Protection of Children) Act 2000 (hereinafter called

the `Act') and in view of Section 15 of the Act, he could have been sent

to a Special Home for a maximum period of 3 years. Learned counsel

submitted that the error has crept in because the Amicus Curiae

provided for defence of the appellant failed to bring the factum of

juvenility to the notice of the trial court or subsequent courts. Learned

counsel further submitted that Section 7-A of the Act provides for the

procedure to be followed when the claim of juvenility is raised before

any Court and proviso to Section 7-A(1) provides that such a claim may

be raised before any court at any stage and even after the final

disposal of the case. He further submits that sub-Section 2 of Section

7-A provides that if the court finds a person to be a juvenile on the

date 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. Learned counsel for the

petitioner has pointed out that in the instant case, the Juvenile Justice

Board, after conducting inquiry, has found the appellant to be a

juvenile aged about 17 years and 4 months on the date of commission

of offence i.e. 23.05.1996. As such, he is entitled to the benefit of the

provisions of the Act and he should be dealt with in accordance with

Section 7-A of the Act. Learned counsel has thus strongly urged for

release of the petitioner for the reason that he has already undergone

incarceration for a period of about 13 years, which is much more than

the maximum period of 3 years for which a juvenile can be detained in

a Special Home.

4. Learned APP, on the other hand, has opposed the prayer on the

ground that the judgment of conviction of the petitioner and the

impugned order on sentence dated 31.01.2000 has become final and it

cannot be interfered with in a writ petition. Learned APP, however, has

not disputed that the petitioner was a juvenile aged 17 years and 4

months on the date of commission of offence i.e. 23.05.1996.

5. Section 7-A of the Act reads thus:-

"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."

6. Taking into account that the petitioner has raised a plea of

juvenility on the date of commission of offence, vide order dated 7th July

2010, the Juvenile Justice Board was directed to conduct an inquiry into

the plea of the petitioner for determination of his age on the date of

commission of offence and submit its report within two months.

Pursuant to the directions, the Juvenile Justice Board conducted the

inquiry for determining the age of the petitioner and as per its report

dated 21.08.2010, the date of birth of the petitioner is found to be

01.01.1979. The date of commission of offence in the instant case is

23.05.1996. Thus, it is apparent that the age of the petitioner on the

date of commission of offence was 17 years and 4 months. The finding

of Juvenile Justice Board is not controverted by learned APP. Thus, it is

established that the petitioner was a juvenile on the date of

commission of offence.

7. 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. It is, however, noted 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 petitioner

Dharamvir, he has already suffered detention for a period of more than

12 years.

8. In view of the fact that the petitioner has suffered incarceration

for a period which is more than the maximum period of detention in

Special Home permissible under the said Act, I 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 petitioner

in the present petition.

9. The writ petition is accordingly allowed. It is ordered that the

petitioner be released forthwith, if not required in any other case.

OCTOBER 08, 2010                                AJIT BHARIHOKE
ks                                                   (JUDGE)