CHANDER KUMAR v. STATE N.C.T. OF DELHI

..... Appellant Through: Ms. Neelam Grover, Adv. Versus STATE N.C.T. OF DELHI ..... Respondent Through: Mr. Arvind Kr. Gupta, APP for the State. CORAM: HON’BLE MR. JUSTICE SANJIV KHANNA O R D E R % 23.07.2010

1. Initially proceedings against the appellant were initiated under the Juvenile Justice Act, 1986. By order dated 13th May, 1999, the Juvenile Court recorded that the appellant herein Mr.Chander Kumar was above the age of 16 years on the date of commission of the offence and therefore, the Investigating Officer should file a supplementary charge sheet before the concerned adult Court.

2. The supplementary charge sheet was filed and by the impugned judgment dated 25th January, 2002, the appellant has been convicted under Section 307/34 of the Indian Penal Code (IPC for short) and by order dated 25th January, 2002 sentenced to rigorous imprisonment of five years and fine of Rs.1,000/- and in default suffer further rigorous imprisonment for one month.

3. The appeal filed by the appellant was admitted vide order dated 11th CRL.A.87/2002 February, 2002 and has remained pending since then.

4. In the meanwhile, Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted and the earlier enactment Juvenile Justice Act, 1986 stands repealed. The effect of the repeal and enactment of Juvenile Justice (Care and Protection of Children) Act, 2000 and amendments was examined by the Supreme Court in Hari Ram Vs. State of Rajasthan reported in (2009) 13 SCC 211 and it has been observed as under:- “58. Of the two main questions decided in Pratap Singh’s case (supra), one point is now well established that the juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate. The effect of the other part of the decision was, however, neutralized by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, whereunder the provisions of the Act were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of the offence. 59. The law as now crystallized on a conjoint reading of Sections 2(k), 2(l), 7A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to Ist April, 2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted. 60. The instant case is covered by the amended provisions of Section 2(k), 2(l), 7A and 20 of the Juvenile Justice Act, 2000. However, inasmuch as, the appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence, the High Court was of the view that the provisions of the Juvenile Justice Act, 1986, would not apply to the appellant’s case. Of course, the High Court, while deciding the matter, did not have the benefit of either the amendment of the Act or the introduction of the Juvenile Justice Rules, 2007. 61. Even otherwise, the matter was covered by the decision of this Court in the case of Rajinder Chandra’s case (supra), wherein this Court, inter alia, held that when a claim of juvenility is raised and on the evidence CRL.A.87/2002 available two views are possible, the Court should lean in favour of holding the offender to be a juvenile in borderline cases. In any event, the statutory provisions have been 62. altered since then and we are now required to consider the question of the claim of the appellant that his date of birth was Kartik Sudi 1, Samvat Year 2039, though no basis has been provided for the fixation of the said date itself in the light of the amended provisions. Often, parents of children, who come from rural backgrounds, are not aware of the actual date of birth of a child, but relate the same to some event which may have taken place simultaneously. In such a situation, the Board and the Courts will have to take recourse to the procedure laid down in Rule 12, but such an exercise is not required to be undertaken in the present case since even according to the determination of the appellant’s age by the High Court the appellant was below eighteen years of age when the offence was alleged to have been committed. expressed 63. Having hereinabove, we are unable to sustain the impugned order of the High Court in holding that the provisions of the Juvenile Justice Act, 1986, would not be applicable to the appellant’s case since he was allegedly 13 days above the age prescribed. 69. The said position was re-emphasized by virtue of the amendments introduced in Section 2C of the 2000 Act, whereby the Proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of clause (l) of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed.” regard

5. In view of the aforesaid legal position, the appeal has to be allowed on the ground that the appellant was a juvenile as defined in Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, as he was below the age of 18 years at the time of commission of offence. The matter is accordingly remitted to the Juvenile Justice Board for disposal in CRL.A.87/2002 accordance with law. The appellant as per the nominal roll has been in Jail for a period of one year and two months. The petitioner will continue to remain on bail, subject to further orders, which may be passed by the Juvenile Justice Board. The appellant will appear before the Juvenile Justice Board on 16th August, 2010. Trial court record will also be sent to the Juvenile Justice Board. Dasti. JULY 23, 2010 J SANJIV KHANNA, J. CRL.A.87/2002