Chunni Lal vs The State, Govt. of NCT of Delhi

Sanjay Kishan Kaul, J.—The appellant Chunni Lal has been convicted and sentenced in Sessions Case No. 233/95 arising out of FIR No.4/93 registered at PS Rajouri Garden for having committed the offence punishable under Sections 302, IPC and sentenced accordingly.

Feeling aggrieved by the impugned judgment of conviction dated 19.09.1996 and order on sentence of the even date, the appellant has preferred the instant appeal.

During the pendency of the appeal, the appellant moved an application for urging additional grounds being Crl.M.A.7576/1998 pleading that he was a "child. within the meaning of the definition of the expression "child. under Juvenile Justice Act, 1986 and that he ought to have been tried under the said Act instead of the IPC.

In support of his prayer, the appellant filed photocopy of his School Leaving Certificate wherein his date of birth is shown as 05.01.1978 suggesting that on 31.12.1992, date of commission of offence, he was a juvenile being under 18 years of age.

The said application was allowed vide the order dated 17.12.1998 allowing the appellant to raise the additional grounds at the time of final hearing of the appeal. The respondents were permitted to have the facts verified and oppose the grounds on merits. Thereafter vide the order dated 15.04.1999 the Sessions Judge was directed to determine the age of the appellant at the time of the alleged incident. On 07.09.2009 learned Counsel for the appellant stated that he had a copy of the Age Estimation Report, School Leaving Certificate and Janampatri and the learned APP was directed to get the same verified. It was also noted that the report from the District & Sessions Judge was not on record and the same was called for. A letter dated 15.09.2009 has been received from the learned ASJ stating that no age verification report was on record.

The respondent has filed a report dated 18.09.2009 under the signatures of Inspector B.R. Sankhla PS Rajouri Garden stating the School issuing the School Leaving Certificate had got closed 14/15 years ago but the Head Master of the School in 1986 had already filed an affidavit in 1999 stating that he had issued the certificate. As per the admission register the date of birth of the appellant is 05.01.1978. The age estimation report of the appellant has also been verified. His age was examined to be between twenty and twenty one years as per report given by doctor on 21.09.1999.

It may be noticed here that the Juvenile Justice Act, 1986 has been repealed by The Juvenile Justice (Care and Protection of Children) Act, 2000 ("the said Act. for short) as amended up to date and Rules framed there under and grant of benefits under said Act and Rules framed thereunder.

In view of the said position, learned Counsel for the respondent has not disputed that the age of the appellant on the date of commission of offence was less than 18 years. Thus, it is obvious that he was a juvenile as per Section 2(k) of the said Act wherein it is provided that a "juvenile. or a "child. means a person who has not completed eighteenth year of age.

During the course of arguments, learned Counsel for the appellant, on instructions from the appellant, submitted that the appellant does not wish to press the appeal on merits and prayed for grant of benefit under 7-A of the said Act to him.

In order to appreciate the submissions of learned Counsel for the appellant, it would be useful to reproduce Section 7-A of the said Act, which is as follows:

7-A Procedure to be followed when claim of juvenility is raised before any court - 1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

2) If the Court finds a person to be a juvenile on the date of commission of the offence under Sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect.

From a perusal of Section 7-A of the said Act, it transpires that as per Clause (1), whenever a claim of juvenility is raised before any Court, the Court shall make an inquiry and take such evidence as may be necessary so as to determine the age of such person and shall record a finding whether the person is a juvenile or a child or not stating his precise age as nearly as possible.

We have already concluded above that the appellant was a juvenile on the date of commission of offence as his age then was about 15 years. Clause 2 of Section 7-A of the said Act provides that if the Court finds a person to be juvenile on the date of commission of offence, it shall forward the juvenile to the Juvenile Justice Board for passing appropriate orders, and the sentence, if any, passed by a Court shall be deemed to have no effect. The import of this provision is that sentence awarded by the impugned order of sentence will have no effect and the matter ought to be referred to the Juvenile Justice Board for passing appropriate orders. We may, however, note that as per Section 15 of the said Act, the maximum period for which a juvenile can be sent to a Special Home is three years. As per the nominal roll of the appellant, the appellant Chunni Lal has already suffered detention for a period of more than six years.

In view of the fact that the appellant has suffered incarceration for a period which is more than the maximum period of detention in Special Home permissible under the said Act, we do not deem it appropriate to refer the matter back to the Juvenile Justice Board for passing appropriate orders and direct formal release of the appellant in the present appeal.

The appeal is accordingly disposed of.

Bail-cum-surety bonds of the appellant are cancelled and discharged.