Mohd. Faruq @ Mohd. Raju vs State (Gnct) Of Delhi
2011 Latest Caselaw 2070 Del

           THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Judgment delivered on: 18.04.2011

+            CRL. M. A 893/2011 & CRL. A. 699/2009

MOHD. FARUQ @ MOHD. RAJU                        ...        Appellant

                                       versus
STATE (GNCT) OF DELHI                           ...      Respondent

Advocates who appeared in this case:

For the Appellant : Mr Ajay Verma For the Respondent/State : Ms Richa Kapur

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MS JUSTICE VEENA BIRBAL

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?

BADAR DURREZ AHMED, J (ORAL)

1. When this application came up for hearing on 17.03.2011, this

Court had noted that the appellant had claimed that he was a juvenile on the

date of the incident, that is, on 07.05.2000. Earlier, we had asked the

learned counsel appearing on behalf of the appellant, to file a better affidavit

so that we could have some material to determine as to whether the claim of

the appellant had some substance or not. As noted in the order dated

17.03.2011, we find that the learned counsel for the appellant had had two

interactions through video conferencing with the appellant but he was unable

to provide any further particulars. The appellant is allegedly a Bangladeshi

national and has no family members in Delhi. In these circumstances, the

learned counsel for the appellant had requested that an ossification test be

carried out as that would be determinative of the age of the appellant. It is in

that background that we, by virtue of our order dated 17.03.2011, had

directed the Superintendent of the concerned jail to take the appellant to All

India Institute of Medical Sciences on 24.03.2011 and on any other date

which the Director of All India Institute of Medical Sciences may fix for the

purposes of conducting the ossification test. We also directed that the report

be submitted before the next date of hearing.

2. By a letter dated 06.04.2011, the Medical Superintendent of All

India Institute of Medical Sciences has forwarded the report which is also

dated 06.04.2011. The report indicates that a Medical Board was constituted

comprising of the following:-

1. Dr Sanjeev Lalwani
   Assoc. Professor of Forensic Medicine                 -    Chairperson

2. Dr Ajay Logani
   Assoc. Professor of CDER                              -    Member

3. Dr Devasenathipathy
   Senior Resident of Radiodiagnosis                     -    Member

4. Dr Sudhin Kurien
   Department of Hospital Administration                 -    Member Secy.

3. The members of the Board physically examined the appellant

Mohd. Faruq @ Mohd. Raju, son of Abdul Qadar on 29.03.2011. After

physical examination, radiological examination etc. were conducted. After

considering all the reports as well as the physical examination, the Medical

Board was of the considered opinion that the bone age of the appellant

Mohd. Faruq @ Mohd. Raju, son of Abdul Qadar was between 25 years to

28 years.

4. This means that on the date of the incident, that is, 07.05.2000,

the appellant was between the ages 14 years to 17 years. We, in any event,

have to take the lower age of the range of ages provided by the Medical

Board. However, in the present case, it would not matter even if the higher

age is taken because even according to that, on the date of the incident, the

appellant would be about 17 years old. In other words, on the date of the

incident, that is, on 07.05.2000, the appellant was below the age of 18 years

and was, therefore, a juvenile within the definition given in Section 2(k) of

the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter

referred to as 'the said Act').

5. This being the position, the appellant would have to be given the

benefit of the said Act. The learned counsel for the appellant submitted that

he had taken instructions from the appellant that he does not want to

challenge the conviction and it is only with regard to sentencing that he is

seeking the benefit under the said Act. The appellant has been in custody

since the date of his arrest, that is, 23.08.2000, which would make it almost

11 years of incarceration. This means that he has been in custody far in

excess of three years, which is the maximum period which is permissible

under the said Act. This is clear from a reading of the provisions of Section

15 and 16 of the said Act. By virtue of Section 7-A of the said Act, the

benefit has to be given to the juvenile at any stage of the matter. Since the

appellant has already been in custody for over three years, while we are

maintaining the conviction and dismissing his appeal with regard to

conviction, we set the appellant at liberty after giving him the benefit of the

said Act on account of the fact that he has already been in custody for a

period beyond the maximum period prescribed under the said Act.

Consequently, while we maintain the conviction, we direct that the appellant

be set at liberty forthwith. The appeal and the present application stand

disposed of accordingly.

A copy of this order be sent to the appellant through the

Superintendent of the concerned jail.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J APRIL 18, 2011 SR