Delhi High Court
Sanjay Kumar vs State on 24 August, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered On: 24.08.2017
CRL.A. 654/2000
SANJAY KUMAR ..... Appellant
Through: Mr. Ajay Burman, Sr. Advocate with
Ms. Ruchi Kapur, Ms. Sadhvi Gaur,
Ms. Tanya Harnal and Mr. Sahil
Verma, Advocates
versus
STATE ..... Respondent
Through: Mr. Ravi Nayak, APP with Inspector
Anupam Shrivastav, PS- GTB
Enclave
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE NAJMI WAZIRI
SIDDHARTH MRIDUL, J (ORAL)
CRL.M.A.3073/2017
1. The present application under the provisions of Section 7-A of the
Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter
referred to as 'the said Act'), filed on behalf of the applicant/appellant prays
for a direction to conduct an enquiry to determine the age of the
applicant/appellant Sanjay Kumar and, thereafter, declare him to be a
juvenile at the time of commission of the offence; for which he has been
convicted and sentenced to life imprisonment.
2. The learned Trial Court by way of the order on sentence dated
29.09.2000, whilst taking into consideration the report of the radiologist and
the school leaving certificate of the applicant/appellant, had found that the
applicant/appellant was above 16 years of age on the date of the commission
of the offence.
3. This Court by way of the order dated 11.08.2017, whilst allowing
CRL.M.A.13035/2017, directed the Delhi Police to verify the correctness of
a document attached to the said application. The said document is a
certificate dated 28.07.2017, issued by Ms. Seema Yadav, Principal,
E.D.M.C. Primary School, East Rohtas Nagar, Shahdara North, Delhi-
110032.
4. Pursuant to the directions of this Court, as contained in the previous
order dated 11.08.2017, a status report has been filed on behalf of the Delhi
Police, authored by Inspector Manjeet Tomar, Station House Officer, Police
Station - GTB Enclave, District Shahdara, Delhi.
5. A perusal of the same would show that upon local enquiry being
conducted into the additional documents qua the date of birth of the
applicant/appellant Sanjay Kumar, it has been revealed that he studied from
Class-I to Class-III in E.D.M.C. Primary School, East Rohtash Nagar,
Shahdara North, Delhi and from Class-III to Class-V in E.D.M.C. Primary
School, Ramnagar Extension, Shahdara, Delhi. It further reveals that Sh.
Daryao Singh, father of the applicant/appellant Sanjay Kumar had procured
the latter's admission by furnishing an affidavit dated 21.07.1980 regarding
the date of birth of the applicant/appellant Sanjay Kumar. The date of birth
of the applicant/appellant Sanjay Kumar as recorded by the concerned school
on the basis of the said affidavit dated 21.07.1980; at the time of the
admission of Sanjay Kumar, is stated to be 25.10.1974.
6. In view of the foregoing, it is, therefore, an admitted position that on
the 22.11.1991, when the said offence was committed, for which the
applicant/appellant Sanjay Kumar has been convicted and sentenced to life
imprisonment, he was less than 18 years of age (i.e. he was approximately 17
years and 1 month old).
7. In order to determine the issue raised in the present application, it
would be profitable to reproduce the provisions of Section 9 of the said Act
and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules,
2007.
" Section 9. Procedure to be followed by a Magistrate who
has not been empowered under this Act.
xxxxx xxxx xxxx
(2) In case a person alleged to have committed an offence
claims before a court other than a Board, that the person is a
child or was a child on the date of commission of the offence,
or if the court itself is of the opinion that the person was a
child on the date of commission of the offence, the said court
shall make an inquiry, take such evidence as may be necessary
(but not an affidavit) to determine the age of such person, and
shall record a finding on the matter, stating the age of the
person as nearly as may be: Provided that such a claim may be
raised before any court and it shall be recognised at any stage,
even after final disposal of the case, and such a claim shall be
determined in accordance with the provisions contained in this
Act and the rules made thereunder even if the person has
ceased to be a child on or before the date of commencement of
this Act."
"Rule 12. Procedure to be followed in determination of
Age.― (1) In every case concerning a child or a juvenile in
conflict with law, the court or the Board or as the case may be
the Committee referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the date
of making of the application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted by
the court or the Board or, as the case may be, the Committee
by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in
the absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin
of one year.
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the
medical opinion, as the case may be, record a finding in
respect of his age and either of the evidence specified in any
of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause
(b) shall be the conclusive proof of the age as regards such
child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the date of
offence, on the basis of any of the conclusive proof specified
in sub-rule (3), the court or the Board or as the case may be
the Committee shall in writing pass an order stating the age
and declaring the status of juvenility or otherwise, for the
purpose of the Act and these rules and a copy of the order
shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7A, section 64 of the
Act and these rules, no further inquiry shall be conducted by
the court or the Board after examining and obtaining the
certificate or any other documentary proof referred to in sub-
rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to
those disposed off cases, where the status of juvenility has not
been determined in accordance with the provisions contained
in sub-rule (3) and the Act, requiring dispensation of the
sentence under the Act for passing appropriate order in the
interest of the juvenile in conflict with law."
8. A plain reading of the above provisions would show that it is
mandated by law that a claim of juvenility may be raised before any Court at
any stage and if the Court finds a person to be a juvenile on the date of the
commission of the offence, it will forward the juvenile to the Juvenile Justice
Board for passing appropriate orders, in accordance with law. It further
mandates that in respect of the enquiry to be conducted, in order to
determine the age of the applicant claiming juvenility; in the absence of a
matriculation or equivalent certificate, the date of birth certificate from the
school (other than a play school) first attended will be considered. Lastly, it
mandates that if after following the statutory procedure in relation to the
determination of age, the Court is of the view that the convict, as in the
present case, was a juvenile on the date of the commission of the offence,
any sentence passed by a Court of competent jurisdiction; sentencing the
convict for the said offence, shall be deemed to have no effect whatsoever, in
law.
9. In view of the foregoing discussion, as well as the decision of the
Hon'ble Supreme Court in Jitendra Singh Alias Babboo Singh vs. State of
Uttar Pradesh, reported as (2013) 11 SCC 193, the sentence imposed by the
Trial Court on the applicant/appellant is deemed to be set aside by operation
of law. Therefore, although the conviction imposed by the Trial Court on the
applicant/appellant is sustained, the sentence imposed on him is set aside.
Furthermore, in view of the circumstance that the applicant/appellant Sanjay
Kumar has already undergone more than six years' incarceration, it is
considered just and expedient not to refer the matter to the Juvenile Justice
Board for further proceedings, in accordance with law.
10. In view of the foregoing, the present application is allowed and
disposed off.
CRL.A.654/2000
1. The appeal preferred on behalf of the appellant Sanjay Kumar against
his conviction and sentence is disposed off in terms of the order passed of
the even date in CRL.M.A.3073/2017.
2. The bail bond/personal bond and the surety bonds, if any, furnished on
behalf of the appellant are hereby discharged.
SIDDHARTH MRIDUL, J
NAJMI WAZIRI, J
AUGUST 24, 2017
dn
