Jagdeep Gupta vs State Of Delhi
2013 Latest Caselaw 3839 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A.555/1998


       JAGDEEP GUPTA                             ..... Appellant
                  Through:    Ms.Diya Kapoor, Advocate

                        versus

       STATE OF DELHI                           ....... Respondent
                 Through:     Ms.Rajdipa Behura, Advocate for State
                              along with Inspector Ram Niwas, SHO
                              P.S. Keshav Puram

CORAM:

       HON'BLE MR. JUSTICE G.S.SISTANI
       HON'BLE MR. JUSTICE G.P. MITTAL

                  ORDER

% 30.08.2013 None is present on behalf of the appellant. Ms.Diya Kapoor, Advocate, who is present in Court, is appointed as an Amicus Curiae in the matter. The matter was passed over once to enable the Amicus Curiae to go through the file.

At the second call, Ms.Diya Kapoor, learned Amicus Curiae submits that during the pendency of this appeal an application [Crl.M.No.6934/2004] was filed by the appellant to bring on record the birth certificate of the appellant and to show that the appellant was minor on the date of commission of the offence. Counsel further submits that by an order dated 15.3.2005 the said application was allowed and the appellant was permitted to take the ground with regard to appellant being covered under the Juvenile Justice Act, 1986 being less than 16 years. Counsel further submits that the original birth certificate placed on record shows the date of birth of the appellant to be 02.11.1980 and in view thereof the appellant would have been 15 years of age on the date of commission of the offence.

Ms.Kapoor, has relied on an order passed by this court in the case of Akram Vs. State (GNCT of Delhi) [Crl.A.No.1398/2010 decided on 9.7.2013] in support of her submission that in view of the fact that the appellant has been in custody for more than 6 years, he is liable to be released.

We have heard counsel for the parties. Paragraphs 4, 6 to 14 of the

judgment passed in Akram (Supra) are reproduced below:

"4. Reliance is placed by Mr.Charak on Amit Singh v. State of Maharashtra and Another, reported at (2011) 13 SCC 744, and Ashwani Kumar Saxena v. State of Madhya Pradesh, reported at (2012) 9 SCC 750, in support of his plea that since the appellant has already undergone sentence of more than eight years he is liable to be released forthwith without any decision on the merits in the appeal.

5. xxxxxxxxx

6. We have heard learned counsel for the parties and considered the rival submissions. We find no force in the submission of learned counsel for the respondent for the reason that in the facts of the present case it is not in dispute that the appellant has already undergone more than three years of sentence, which is a maximum sentence, which could have been awarded to the appellant under the Act.

7. Section 20 of the Act contains special provision in respect of cases where the juvenile in conflict with the law was alleged to be involved in commission of any offence before coming into force of the Act. In the instant case, the offence was allegedly committed on 06.08.2004, that is, much after the date of coming into force of the Act on 01.04.2001. Thus, Section 20 has no application. Moreover, Section 20 does not deal with a situation where an appeal is pending before an Appellate Court.

8. As per provision of Section 14 of the Act wherever a juvenile is alleged to have committed an offence an inquiry is to be conducted by the Board and which is to be completed within a period of four months. Section 15 of the Act provides for the orders which may be passed by the Board regarding a juvenile who on inquiry is found to have committed the offence. Section 15 of the Act is extracted hereunder:-

CRL.A.555/1998 2/5 "15. Order that may be passed regarding juvenile.-

(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it thinks so fit, -

(a)allow the juvenile to go home after advice or admonition following appropriate inquiry against and councelling to the parent or the guardian and the juvenile;

(b)direct the juvenile to participate in group councelling and similar activities;

(c) order the juvenile to perform community service;

(d)order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;

(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;

(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;

(g) make an order directing the juvenile to be sent to a special home for a period of three years;

Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.]

(2) ..................

(3) ..................

(4) .................."

9. Thus, as per Section 15(1)(g) of the Act the maximum period for which a juvenile can be sent to a special home for three years.

CRL.A.555/1998 3/5

10. Normally, whenever any order is passed by any Court in respect of a juvenile in conflict with law without any jurisdiction it has to be set aside as it is only the Board which can conduct an inquiry under Section 14 and make an order under Section 15 of the Act. The question for consideration is whether the impugned order should be set aside and the case should be remanded back to the Board for its inquiry in terms of Section 14 or the Appellant should be released forthwith.

11. Ashwani Kumar Saxena (supra) is an answer to the question raised. In concluding para of the report, the Supreme Court set aside the sentence awarded by the Sessions Court and directed the High Court to place the record before the Juvenile Justice Board for awarding appropriate sentence in accordance with the provisions of the Act with a rider that if the Appellant had already undergone the maximum sentence of three years prescribed under the Act, he has to be set free. In the instant case admittedly the Appellant is in custody for a period of over eight years.

12. Similarly, in Amit Singh (supra) again the Supreme Court ordered the Petitioner (juvenile in conflict with law) to be set at liberty as he had already undergone a sentence of twelve years although the maximum period for which a juvenile could be detained in a special home under Section 15 was only three years. Para 21 and 22 of the report are extracted hereunder:-

"21. Inasmuch as the date of birth of the petitioner is 10-5- 1982 and on the date of the alleged incident which took place on 1-5-1999, his age was 16 years, 11 months and 21 days i.e. below 18 years, hence on the date of the incident, the petitioner was a juvenile in terms of the Act because he had not completed 18 years of age and is entitled to get the benefit of the provisions under Sections 2(l), 7-A, 20 and 64 of the Act. It is also specifically asserted that the petitioner had already undergone 12 years in jail since then which is more than the maximum period for which a juvenile may be confined to a special home.

22. Under these circumstances, the petitioner is directed to be released from the custody forthwith. The writ petition is allowed."

13. The remand of the case for an inquiry by a Juvenile Justice Board is not going to serve any purpose in a case where a juvenile in conflict with law has already served the detention of over three

CRL.A.555/1998 4/5 years as according to Section 19 of the Act, a juvenile shall not suffer any disqualification on account of any conviction in pursuance of an inquiry under the Act.

14. Learned counsel for the State urges that the decision in Amit Singh (supra) was rendered in a writ petition. Our attention is also drawn to a judgment of the Supreme Court in Satish @ Dhanna v. State of Madhya Pradesh & Ors. (2009) 14 SCC 187 wherein the accused who was a juvenile was released because the order of conviction was not disputed. The eventuality where an order of conviction is disputed did not come up for consideration before the Supreme Court in Satish (supra) which was considered in Ashwani Kumar Saxena (supra) and Amit Singh (supra)."

In view of the date of birth certificate, which has been placed on

record and the fact that the appellant has already undergone more than 6

years, we do not deem it appropriate to remand the case to the Juvenile

Justice Board for making an inquiry under Section 14 of the Act.

Accordingly, the impugned judgment is set aside. The appellant is stated

to be on bail. The appellant is directed to be released in this case

forthwith. The personal bond and surety bond of the appellant is cancelled

and the surety is discharged.

Appeal stands disposed of, in above terms.

                                                           G.S.SISTANI, J




                                                           G.P. MITTAL, J
AUGUST 30, 2013
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CRL.A.555/1998                                                         5/5