Delhi High Court

Hemant Saluja vs Cbi on 19 October, 2011

Author: Mukta Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Crl. M.C. NO. 2470/2010 & Crl. M.A. No. 13095/2010 (Stay)

%                                            Reserved on: 12th September, 2011

                                             Decided on: 19th October, 2011

HEMANT SALUJA                                                 ..... Petitioner
                               Through:   Mr. Sunil Sethi, Mr. Sunil Mittal and
                                          Mr. Sanjiv Saluja, Advocates.
                      versus

CBI                                                       ..... Respondent
                               Through:   Mr. Narender Mann, Spl. PP.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may          Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported            Yes
   in the Digest?

MUKTA GUPTA, J.

1. The Petitioner is facing trial in case RC.2 (S)/96/DL-1 under Section

120B read with Sections 420/468/471 IPC registered on the direction of the

High Court of Guwahati, Agartala Bench.

2. The allegations against the Petitioner in brief are that though the

Petitioner‟s name was not forwarded for admission in the category however,

the Secretary to the then Chief Minister in conspiracy with the other public

servants issued a nomination letter dated 3rd October, 1989 in favour of the

Petitioner for his admission in MBBS College, Trichur, Kerala knowing fully

well that neither the Petitioner was eligible for the said nomination as

nominee of the State of Tripura nor was Mr. Amal Kumar Roy himself

authorized or competent to sign and issue the said nomination letter. Thus on

the basis of the said fake nomination letter issued by Shri Amal Kumar Roy

the Petitioner secured admission in MBBS College, Trichur, Kerala in the

academic session 1989-90. During the Trial the Petitioner filed an application

on 9th November, 2006 seeking declaration that he was a juvenile and was

thus entitled to be proceeded with under the Juvenile Justice (Care and

Protection of Children) Act, 2000 (in short „JJ Act‟).

3. The said application of the Petitioner was decided vide order dated 13th

April, 2007 declaring the Petitioner as a juvenile and directing that the

proceedings would continue before the Special Court itself. On 3 rd March,

2009 the Petitioner filed another application inter alia seeking the relief of

separation of trial under Section 18 of the JJ Act, refer the enquiry to Juvenile

Justice Board for consideration and termination of proceedings in accordance

with Section 14 of the JJ Act and Rules 13 (6) and (7) of the Juvenile Justice

(Care and Protection of Children) Rules, 2007 (in short „JJ Rules).

Alternatively it was prayed that the learned Special Court terminate the

proceedings against the Petitioner. The learned Special Judge vide its order

dated 17th July, 2010 dismissed the application. This order dated 17 th July,

2010 is the order impugned in the present petition.

4. Learned counsel for the Petitioner contends that he is entitled to the

benefits of Section 14 of the JJ Act, 2000 read with Rule 13 (6) and (7) of the

JJ Rules. According to the learned counsel for the Petitioner, the learned

Judge erred in holding that Section 20 of the JJ Act would be applicable when

a person was below the age of 18 years as on 1st April, 2001 and thus the said

Section was not applicable to the Petitioner herein. The Petitioner has already

been declared a juvenile as per Section 7 (a) and thus he is entitled to all

consequential benefits available thereunder. Further the Juvenile Justice

Board vide its two separate orders dated 15th December, 2008 has already

terminated the proceedings against two other juveniles who were also

implicated in the abovementioned FIR, in view of Section 14 of the JJ Act

read with Rule 13 (6) and (7) of the JJ Rules. The decision of the Constitution

Bench in Pratap Singh Vs. State of Jharkhand, 2005 (3) SCC 551 has been

considered by the Hon‟ble Supreme Court in Hari Ram Vs. State of Rajasthan

and another, 2009 (6) SCALE 695 wherein it has been held that pursuant to

Pratap Singh vs. State of Jharkhand (Surpa) there has been an amendment in

Section 20 of the Act and Rules and thus the said decision would have no

applicability.

5. Learned counsel for the CBI on the other hand contends that the

Petitioner was already declared a juvenile by the order of the learned Special

Court dated 13th April, 2007 and it was held that on the date of

commencement of the Act, that is, on 1st April, 2001 proceedings in respect of

the Petitioner were pending in its Court as charge sheet was filed by the CBI

on 13th December, 1997 and therefore, the proceedings shall be continued in

the same Court as if the JJ Act had not been passed till the time the Court

finds that the juvenile has committed the offence. On returning such a finding

instead of passing any sentence in respect of the juvenile the matter would be

referred to the Juvenile Justice Board which shall pass the order in respect of

the juvenile in accordance with the provisions of the JJ Act. The said order

dated 13th April, 2007 has not been challenged by the Petitioner till date and

thus the same has become final. After the afflux of two years the Petitioner is

seeking to challenge that order by seeking the same relief in the garb of

separate trial for himself under the JJ Act or for termination of the

proceedings.

6. It is contended that Section 20 of the JJ Act is clear and in respect of

any proceedings pending in any Court on the date on which the Act comes

into force in that area, the proceedings will continue as if the Act has not been

passed and the relevancy of juvenility under the JJ Act would come into

picture at a stage when the order on sentence has to be pronounced on the

juvenile. The cases of the other two juveniles were not identical to that of the

Petitioner. There were no proceedings pending on 1st April, 2001, that is, at

the time of commencement of the JJ Act, 2000 and charge sheets in the case

were filed in the year 2003, i.e. after the commencement of the JJ Act and

thus those cases were required to be referred to the JJ Board. There is no

illegality in the impugned order and thus the petition deserves to be dismissed.

7. I have heard learned counsel for the parties. Some undisputed facts are

that the Petitioner is a juvenile in regard to the trial he is facing. The charge

sheet qua him was filed on 8th December, 1997. Though no cognizance was

taken thereon immediately as it did not contain the relied upon documents,

however, admittedly on the 29th July, 1998, the Petitioner was supplied the

documents pursuant to appearance. Thus as on the date, that is, 1st April, 2001

when the JJ Act came into force the proceedings against the Petitioner were

pending before the learned Trial Court.

8. In Hari Ram (supra) there Lordships expressly held that after the

decision of the Constitution Bench in Pratap Singh (Supra) the legislature

amended the provisions of the Act by the Amendment Act, 2006 and

substituted Section 2 (1) to define the "juvenile in conflict with law" "as a

juvenile who is alleged to have committed an offence and he has not

completed 18 years of the age as on the date of commission of such offence",

thus the trial Court is bound to proceed in accordance with the JJ Act in

relation to the Petitioner who was admittedly a juvenile at the time of

commission of the offence.

9. Section 20 of the Juvenile Justice Act, 2000 after the amendment reads

as under:

"20. Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had 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 the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.

[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.-In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any, Court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for

all purposes and at all material times when the alleged offence was committed.]

10. A perusal of Section 20 thus clearly demonstrates that the Petitioner

would have to continue with the trial as if the JJ Act was not passed and only

in case the learned Trial Court holds that the petitioner has committed the

offences alleged, then at the stage of quantum of sentence, if required, his case

would be required to be dealt with by the Juvenile Justice Board. Rule 13 (6)

and (7) of the JJ Rules will have no application to the facts of the present case

as the benefit under the Act has to be provided to the accused where the

accused is below the age of 18 years as on 1st April, 2001. However, in the

present case, the Petitioner was around 28 years in the year 2001 though was a

juvenile in the year 1989 when the alleged crime was committed.

Furthermore, no objection was raised nor any application challenging the

order dated 13th April, 2007 passed by the learned Judge wherein it was held