IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    475    OF 2009 (ARISING OUT OF S.L.P.(CRL.) NO.4910 OF 2008)

VANEET KUMAR GUPTA @ DHARMINDER ... APPELLANT VERSUS

STATE OF PUNJAB ... RESPONDENT

ORDER

Leave granted.

Challenge in this appeal is mainly to the award of sentence to the appellant on his conviction for an offence under Section 302 read with Section 149 of the Indian Penal Code, 1860.  On conviction, the Sessions Judge sentenced the appellant to undergo imprisonment for life and to pay a fine of Rs.2,000/- with the default stipulation.  By the impugned order, the High Court has affirmed the decision of the Trial Court.

Since in this appeal we propose to deal only with the legal proposition urged on behalf of the appellant, we deem it  unnecessary  to  state,  in  detail,  the  case  of  the prosecution against the appellant which resulted in his conviction.  It would suffice to note that the incident in which the appellant is stated to have participated, took place on 28th August, 2002.

Learned counsel appearing on behalf of the appellant has challenged the conviction of the appellant mainly on the ground that on the date of occurrence, the appellant was a juvenile and therefore, he should have been tried under  the  provisions  of  the  Juvenile  Justice  (Care  and Protection of Children) Act, 2000 (“the Juvenile Justice Act”  for  short).   Although  it  is  conceded  by  learned counsel  for  the  appellant  that  this  point  was  not specifically raised either before the Trial Court or the High  Court  but  he  submits  that  in  the  light  of  the provision contained in Section 7A of the Juvenile Justice Act, the question about juvenility of the appellant can be gone into even at this stage.  Learned counsel has also pointed out that in fact the High Court was aware of the fact that the appellant had not completed eighteen years of age as on the date of alleged commission of offence and was, thus, a “juvenile” inasmuch as the fact of his being confined in Borstal Jail, Ludhiana, meant for housing a juvenile  in  conflict  with  law  was  mentioned  in  the application filed for grant of bail.  It was, therefore, obligatory for the High Court to hold an inquiry itself for determination of the question of age of the appellant or cause  an  inquiry  to  be  conducted  and  seek  a  report regarding the same.

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Having  bestowed  our  anxious  consideration  to  the facts before us, we are of the opinion that the appeal commends acceptance.

Section 7A, inserted in the Juvenile Justice Act with effect from 22nd August, 2006 reads as follows:

“7A.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 recognised 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 orders and the sentence,  if  any,  passed  by  a  court  shall  be deemed to have no effect.”

It is manifest from a fair reading of proviso to sub- section (1) that a claim of juvenility can be raised at any stage and even after the final disposal of the case.  In that view of the matter, the appellant is entitled to raise before us claim of juvenility at the relevant time.  It

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appears to us that in view of a recent decision of a three Judge Bench of this Court in Pawan Vs. State of Uttaranchal JT (2009) 3 SC 87, the issue is no longer res-integra.  In the said decision, taking note of the observations in the case of  Gurpreet Singh Vs. State of Punjab (2005) 12 SCC 615, wherein entertaining the issue whether the accused was a juvenile under the Juvenile Justice Act, 1986, raised for the first time before it, this Court, had laid down the procedure to be followed in such a situation, one of us, R.M. Lodha, J., speaking for the Court has observed thus:

“Where the materials placed before this Court by the  accused,  prima  facie,  suggest  that  the accused  was  `juvenile'  as  defined  in  the  Act, 2000 on the date of incident, it may be necessary to call for the report or an enquiry be ordered to  be  made.  However,  in  a  case  where  plea  of juvenility is found unscrupulous or the materials lack credibility or do not inspire confidence and even, prima facie, satisfaction of the court is not  made  out,  we  do  not  think  any  further exercise in this regard is necessary. If the plea of  juvenility  was  not  raised  before  the  trial court or the High Court and is raised for the first  time  before  this  Court,  the  judicial conscience  of  the  court  must  be  satisfied  by placing adequate and satisfactory material that the  accused  had  not  attained  age  of  eighteen years on the date of commission of offence; sans such material any further enquiry into juvenility would be unnecessary”.  (Emphasis supplied by us)

Thus, the short question for consideration is as to whether adequate material is available on record to hold that the appellant had not attained age of eighteen years on the date of commission of offence and could, thus, be

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treated as a “juvenile” within the meaning of Section 2(k) of the Juvenile Justice Act?     

When the matter came up for hearing on 15th December, 2008, counsel for the State was asked to seek instructions as to whether any inquiry had been conducted with regard to the age of the appellant as on the date of the commission of the offence, particularly in the light of the school register and Transfer Certificate issued by Rama Montessori Junior Basic Vidayalaya Samiti, Nawabganj, Gonda (U.P.). Pursuant  to  and  in  furtherance  of  the  said  order,  an affidavit has been filed by the Deputy Superintendent of Police,  Garhshankar,  District  Hoshiarpur.  In  the  said affidavit, it is stated that upon making inquiries from the Principal of the aforementioned School, Certificate dated 15th December, 1987 has been found to be genuine. It is further  stated  that  as  per  the  inquiries  made,  the appellant had studied in the said School from Class I to V during the period 1994-1999 and as per the school records, his date of birth is 15th December, 1987.  Thus, in view of the  said  report,  filed  on  affidavit,  which  is  not questioned by learned counsel for the State, the age of the appellant as on the date of occurrence was about 15 years.

The  inquiry  report,  which  inspires  confidence, unquestionably  establishes  that  as  on  the  date  of occurrence, the appellant was below the age of eighteen

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years; was thus, a “juvenile” in terms of the Juvenile Justice  Act  and  cannot  be  denied  the  benefit  of  the provisions of the said Act.  Therefore, having been found to  have  committed  the  aforementioned  offence,  for  the purpose  of  sentencing,  he  has  to  be  dealt  with  in accordance  with  the  provisions  contained  in  Section  15 thereof.  As per clause (g) of sub-section (1) of Section 15 of the Juvenile Justice Act, the maximum period for which the appellant could be sent to a special home is a period of three years.

Under the given circumstances, the question is what relief should be granted to the appellant at this juncture. Indisputably, the appellant has been in prison for the last many years and, therefore, at this distant time, it will neither  be  desirable  nor  proper  to  refer  him  to  the Juvenile Justice Board.  Accordingly, we follow the course adopted in  Bhola Bhagat Vs.  State of Bihar (1997) 8 SCC 720;  sustain  the  conviction  of  the  appellant  for  the offence for which he has been found guilty by the Sessions Court, as affirmed by the High Court and at the same time quash the sentence awarded to him.

Resultantly,  the  appeal  is  partly  allowed  to  the extent indicated above.  We direct that the appellant shall be released forthwith, if not required in any other case.

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.....................J. [ D.K. JAIN ]

.....................J. [ R.M. LODHA ]

NEW DELHI, MARCH 6, 2009. IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   475    OF 2009 (ARISING OUT OF S.L.P.(CRL.) NO.4910 OF 2008)

VANEET KUMAR GUPTA @ DHARMINDER ... APPELLANT

VERSUS

STATE OF PUNJAB       ... RESPONDENT

ORDER

It has now been brought to our notice that vide order dated

February 09, 2009, it was directed that the appellant shall be released on

bail on his furnishing a personal bond in the sum of Rs.10,000/- with one

surety in the like amount to the satisfaction of the trial Court. In view of

the  said  order,  we  direct  that  if  the  appellant  has  already  furnished

personal bond and a surety in terms  of the said order, the same shall stand

discharged.  

.....................J.      [ D.K. JAIN ]

.....................J.      [ R.M. LODHA ]

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NEW DELHI, MARCH 19, 2009.

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