Delhi High Court
Raju vs State (Govt Of Nct) Of Delhi on 13 September, 2011
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.09.2011
+ W.P.(CRL) No. 173/2011
RAJU ..... Petitioner
versus
STATE (GOVT OF NCT) OF DELHI ..... Respondent
Advocates who appeared in this case:-
For the Petitioner : Mr A.J. Bhambhani with Mrs Nisha along with
petitioner in person
For the Respondent : Mr Rajesh Mahajan, ASC
SI Parveen Ahlawat P.S. Kotwali
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 the Digest?
BADAR DURREZ AHMED, J (ORAL)
1. Although this petition has been filed under Article 226 of the
Constitution of India, it is essentially in the nature of an application
under Section 7-A of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to as 'the said Act').
2. The petitioner (Raju) was an accused in connection with FIR
No. 541/1995 registered at Police Station Kotwali, Daryaganj under
Sections 147/148/149/307/302/34 IPC. Initially, there were five
accused which included the petitioner and his parents Birbal and
Omwati. The other two accused were the brothers of the present
petitioner, namely, Sunil and Pramod. The latter two were
straightaway considered to be juveniles and were dealt with by the
Juvenile Court.
3. Insofar as the present petitioner and his parents Birbal and
Omwati are concerned, they faced trial which culminated in the
judgment passed by the learned Addl Sessions Judge on 29.01.2001
whereby they were convicted under Sections 147/148/149/307/302/34
IPC. By a separate order on the point of sentence dated 30.01.2001,
the learned Addl Sessions Judge sentenced the present petitioner as
also the other co-accused, inter alia, to life imprisonment.
4. It is pertinent to note for the purposes of the present case that
the order on point of sentence had itself recorded the age of the
petitioner as 22 years. It is further relevant to note that if the
petitioner was 22 years old on the date on which the order on sentence
was passed i.e., on 30.01.2001, the petitioner would have been about
16 ½ years old on the date of the incident i.e., 16.06.1995. However,
it must be remembered that the said Act had not come into force by
then and, therefore, the definition of child/juvenile whereby the age
was enhanced from 16 to 18 years had not come into force and it is for
this reason that the petitioner was not treated to be a child/juvenile.
The said Act came into force on 01.04.2001.
5. Being aggrieved by the judgment dated 29.01.2001 and the
order on sentence dated 30.01.2001, the petitioner as well as the other
co-convicts, namely, his father Birbal and mother Omwati preferred
an appeal before a Division Bench of this court being Crl A. No.
115/2001. That appeal came to be dismissed by a Division Bench of
this Court on 02.03.2009. On 27.10.2009, an Inspecting Judge/Special
Judge - IV (PC Act) CBI had, on receipt of a complaint, directed that
the bone age of the petitioner be medically determined. Pursuant to
that, Dr Rakesh Kumar of Deen Dayal Upadhyay Hospital submitted a
report that the bone age of the petitioner Raju as on 05.11.2009 was
between 25 and 30 years. This would mean that the age of the
petitioner Raju would be between 11 and 16 years as on the date of
incident i.e., 16.06.1995.
6. In the meanwhile, the present petitioner and his father Birbal
filed a Special Leave Petition being SLP (Crl) No. 879/2010 and the
petitioner's mother Omwati filed a separate Special Leave Petition
being SLP (Crl) No. 4633/2010 before the Supreme Court of India.
Both the Special Leave Petitions were delayed and, therefore,
condonation of delay applications were filed along with the said
petitions. Insofar as SLP (Crl) No. 879/2010 is concerned, the
Supreme Court, after condoning delay, dismissed the same. A similar
fate was suffered by SLP (Crl) No. 4633/2010. The orders of
dismissal were dated 29.01.2010 and 10.05.2010, respectively.
7. It is thereafter that the present petition has been filed. The
matter first came up before a learned Single Judge who then proposed
that the matter be placed before a Division Bench, subject to orders of
Hon'ble the Chief Justice and that is how the matter is before us. By
virtue of our order dated 01.08.2011, we had directed that since Rule
12(3)(b) of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as 'the said Rules') requires that
the medical opinion as to age should be rendered by a duly constituted
Medical Board, the same ought to have been done. But, as the
medical opinion on record was only that of a single doctor of Deen
Dayal Hospital, this court directed that a Medical Board be constituted
and the age of the petitioner be determined.
8. The Superintendent of All India Institute of Medical Sciences
constituted a Medical Board and the petitioner was examined. The
report of the Medical Board indicates the age of the petitioner (Raju)
as being 33-35 years as on 05.08.2011. The report itself is dated
11.08.2011. If this report is to be accepted, the age of the petitioner
would be between 17 years and 19 years as on the date of incident.
9. Thus, we find that whether we take the earlier report of Deen
Dayal Upadhyay Hospital or the more recent report of the Medical
Board of All India Institute of Medical Sciences, in either eventuality
the petitioner would have to be regarded as a juvenile as the lower end
of the range of ages is to be taken. Consequently, we hold that the
petitioner was a 'juvenile' within the meaning of Section 2(k) of the
said Act inasmuch as the petitioner, on the date of the incident, was
less than 18 years of age. It is relevant to note that resort to Rule
12(3)(b) of the said Rules is being taken as there is no other evidence
as contemplated under Rule 12(3)(a).
10. The fact that the petitioner had not raised the plea of juvenility
before the trial court or before the Division Bench at the stage of the
appeal or even before the Supreme Court would not come in his way
of seeking the remedy and relief that is sought by virtue of this
petition in view of the clear and express provisions of Section 7-A of
the said Act. Once we have determined that the petitioner was a
'juvenile' as on the date of the incident, he has to be given the benefit
thereof under the said Act. Sections 15 and 16 of the said Act clearly
indicate that no juvenile can be kept in custody or detained for a
period in excess of 3 years. In the present case, the appellant has
already been in custody for over 10 years and 4 months as per the
nominal roll on record. Therefore, it is clear that the petitioner has
been in custody for a period far in excess of the maximum period of 3
years that is contemplated under the said Act. In these circumstances,
he is eligible to be released forthwith. Insofar as the sentence is
concerned, the same is deemed to have no effect in view of the
provision of Section 7-A(2) of the said Act.
11. In view of the foregoing, this petition is disposed of with the
direction that the petitioner be released forthwith if he is not required
in any other case.
12. A copy of this order be sent to the Superintendent of the
concerned Jail through Special Messenger.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
SEPTEMBER 13, 2011
kks
