Delhi District Court
Sunil vs State (Govt. Of Nct Of Delhi) on 4 December, 2014
IN THE COURT OF SH. SANJIV JAIN, P.C. ACT, SPECIAL
JUDGE3, ROHINI COURTS, DELHI.
Crl. Appeal No. 32/2014
FIR No.778/2013
PS Mangol Puri
U/s 452/302 IPC
In the matter of :
Sunil ........Appellant
Vs.
1.State (Govt. of NCT of Delhi)
2.Pawan @ Golu .......Respondents
Appeal received on assignment on : 16.7.2014
Date of hearing arguments : 4.12.2014
Date of judgment : 4.12.2014
JUDGMENT :
1. This criminal appeal u/s 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'JJ Act') has been directed against the order dated 13.12.2013 passed by the Ld. Metropolitan Magistrate, Rohini, Courts, Delhi in the case FIR No.778/2013, Police Station Mangol Puri whereby the respondent no.2/accused Pawan Kumar @ Golu has been declared as juvenile. Crl. Appeal No. 32/14 Page No.1 of 11 Sunil Vs. State and another An application for condonation of delay in filing the appeal has also been moved.
2. The facts relevant for the disposal of the present appeal are that a case bearing FIR No.778/2013 was registered u/s 452 and 302 IPC in regard to the murder of the son of the appellant against the accused/respondent no.2. He was arrested. At the time of arrest, the respondent no. 2 had disclosed his age as 20 years. Thereafter, he moved an application before the Ld. Metropolitan Magistrate u/s 7A of the JJ Act alleging that he was juvenile on the day of commission of the offence. On this application, a report was called by the Ld. Metropolitan Magistrate from the Investigating Officer (I.O.) whereby it was informed by the IO that the respondent no. 2 was juvenile on the date of commission of the offence. He based his report on a school leaving certificate issued by the Principal where the respondent last studied as per which his date of birth was 17.4.98. He was admitted in the school on 10.9.2003. The report given by the IO was accompanied with the Entry Register maintained in the school and the affidavit given by the father of the respondent no.2 at the time of admission of the respondent no.2 in the school.
3. It has been alleged on behalf of the appellant that the Ld. Crl. Appeal No. 32/14 Page No.2 of 11 Sunil Vs. State and another Metropolitan Magistrate without conducting any inquiry as contemplated u/s 7A of the JJ Act passed an order not in conformity with the law declaring the respondent no. 2 as juvenile solely on the basis of the report submitted by the IO. The alleged offence is of grave nature and it was incumbent upon the Ld. Metropolitan Magistrate to conduct fair and proper inquiry. As per the documents collected by the appellant i.e Adhar Card of respondent no.2, the date of birth of respondent no. 2 has been shown as 1.1.1994 i.e he was not juvenile on the day of commission of the offence. The accused has one brother and two sisters. As per the certificate issued by CBSE in respect of Laxmi who is the elder sister of the accused/ respondent no.2, her date of birth is 16.10.91. The date of birth of younger sister of respondent no.2 namely Saraswati as per the certificate issued by the Principal of Sarvodya CoEd. S S Vidyalaya, C Block, Mangol Puri, Delhi, is 8.3.98. Ms. Saraswati is younger to respondent no.2. That being the position how the date of birth of the respondent no.2 could be 17.4.1998 which is biologically impossible.
4. It is further submitted on behalf of the appellant that the age in respect of respondent no.2 has been recorded in the school register on the basis of the Affidavit given by the father of the respondent Crl. Appeal No. 32/14 Page No.3 of 11 Sunil Vs. State and another no.2 and not on the basis of the document/birth certificate.
5. It is submitted that proper and fair inquiry may be conducted to ascertain as to whether the respondent no.2 was juvenile or not on the day of commission of the offence under S.7A of JJ Act.
6. In the application for condonation of delay it has been stated that the appellant came to know of this impugned order at a belated stage as he was not given any notice of the proceedings. He immediately approached the Juvenile Justice Board with an application seeking proper investigation and also filed relevant documents but it was not disposed of by Ld. Principal Judge and he was not even allowed to inspect the record. He had also filed Revision Petition against the order before the Hon'ble High Court which he withdrew since he was given liberty to approach the Court of Sessions vide order dated 9.7.2014.
7. In response to this petition/appeal, it is submitted on behalf of the respondent no.2 that the respondent no.2 has been falsely implicated at the instance of the complainant due to enmity. The age of the respondent no.2 was verified at the time of investigation by the IO. The correct date of birth of respondent no.2 has been mentioned in the school record i.e 17.4.98 and the Adhar Card cannot be made basis to ascertain the age of the respondent no.2. It Crl. Appeal No. 32/14 Page No.4 of 11 Sunil Vs. State and another is not the case that the said certificate is a procured document as the school record itself shows that the entry in the register was made in the year 2003 though the date of commission of alleged offence is 6.12.2013. It is stated that proper inquiry has been conducted under the Act and the present appeal is devoid of merit. On the application for delay it was replied that the appellant was very much aware of the order and the intention of the appellant is to delay the trial and harass the respondent no.2.
8. I have heard Ld. Counsel Sh. Piyush Mittal for the appellant; Ms. Shivani Gautam, Ld. Counsel for the respondent no.2 and Sh. Harvinder Kumar, Ld. Addl. PP for State and have gone through the case file as well as trial court record.
9. S. 54 of the JJ Act prescribes procedure in enquiries, appeal and revision proceedings and S.7A provides procedure to be followed when claim of juvenility is raised before any court. They read as under :
"S.54 : Procedure in inquiries, appeals and revision proceedings:
(1) Save as otherwise expressly provided by this Act, a competent authority while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure 1973 Crl. Appeal No. 32/14 Page No.5 of 11 Sunil Vs. State and another (2 of 1974) for trials in summons cases. (2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
S.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 recognsed 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."Crl. Appeal No. 32/14 Page No.6 of 11
10. In terms of Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 in every case concerning a child or a juvenile in conflict with law, the age determination inquiry has to be conducted by the court or the Board or by the Committee by seeking evidence referred to in clauses (a) & (b) under the said provision. The primary evidence for determining the age of the juvenile or a child in conflict with law is the Matriculation or equivalent certificates, if available and in the absence of any such certificate, the date of birth from the school (other than a play school) first attended by the person claiming to be a juvenile. In the absence of either one of the two certificates mentioned above, alone could the birth certificate given by the Corporation or a Municipal Authority or a Panchayat suffice. In terms of Rule 12 (3) (b) medical opinion as to the age of the child in conflict with law comes as the last option available to the court under Rule 12 of the Rules mentioned above.
11. In the case at hand, the summary inquiry conducted by the Ld. Metropolitan Magistrate runs into one page. The entry of the date of birth of the respondent no.2 has allegedly been made by the Principal on the basis of the information given by the father of respondent no.2 at the time of his admission. No inquiry was made Crl. Appeal No. 32/14 Page No.7 of 11 Sunil Vs. State and another from the Principal/Head Master whether the Affidavit was the only basis of recording date of birth of the respondent no.2 in the school register basing which, certificate was issued by the Principal relied upon by the IO/Ld. Metropolitan Magistrate while ascertaining the juvenility of the respondent no.2. The finding that the respondent no. 2 was juvenile on the date of commission of the offence rests entirely on the report submitted by the Investigating Officer. The report does not indicate whether any efforts were made by the Ld. Metropolitan Magistrate to secure the relevant record relating to the birth of the respondent no.2 from the Corporation/Panchayat/Municipal Authority concerned. Suffice it to say that the report submitted by Ld. Metropolitan Magistrate appears to be much too cryptic to be made a basis for declaring the respondent no. 2 to be a juvenile as on the day of the commission of the offence.
12.As per school leaving certificate of Ms. Saraswati, younger sister of respondent no.2, her date of birth is 8.3.1998. In the Adhar Card, the date of birth of the respondent no. 2 has been mentioned as 1.1.1994. As per record, the respondent no. 2 had disclosed his age as 20 years at the time of arrest. Question arises as to what made the respondent no. 2/accused disclose his date of birth as 1.1.1994 in Crl. Appeal No. 32/14 Page No.8 of 11 Sunil Vs. State and another the Adhar Card. Viewed thereof, the documents placed on record by the appellant more particularly that of Ms. Saraswati who is the younger sister of the respondent no.2 and the Adhar Card of the respondent no.2 need to be looked into while ascertaining the juvenility.
13.In 'Puneet Vasudeva Vs. State and others', MANU/DE/3640/2009 it was held that it is true that the determination of the age would depend upon facts and circumstances of each case and it is no doubt true that the Court must strike a balance. In case of a dispute, the Court may appreciate the evidence having regard to the facts and circumstances of the case. It would be a duty of the Court of law to accord the benefit to a juvenile, provided he is one to give the same benefit who in fact is not a juvenile may cause injustice to the victim. Section 32 of the JJ Act also makes it obligatory to make an inquiry of the age of an accused and for that purpose to take such evidence as may be necessary. The Court is required to record a finding on the basis of evidence and material before it as to whether the accused was a juvenile or not. The age of an accused on the day of occurrence is an important factor which decides his fate as to whether he was entitled to get the benefits of the provisions of the Act which saves him from the ordeal of criminal trial under the law Crl. Appeal No. 32/14 Page No.9 of 11 Sunil Vs. State and another and also from the imprisonment etc.
14. As regards delay, record shows that when the inquiry proceedings were conducted by Ld. Metropolitan Magistrate under the JJ Act, no notice was given to the appellant. The appellant came to know of this fact later. He immediately took steps and moved an application before the Juvenile Justice Board submitting all the documents. He also filed criminal revision against that order where he was given liberty to approach the Court of Sessions. The offence is grave in nature. Considering these circumstances I am of the view that it is a fit case where delay be condoned. I order accordingly.
15.In the result thereof I direct that a further inquiry be conducted by the Ld. Metropolitan Magistrate who shall be free to summon the record relating to the birth of the respondent no. 2 from the Corporation, Panchayat, Municipal Corporation and the school concerned and call/examine any witness to go into the question of genuineness and veracity of the documents. The respondent no.2 shall also be free to produce any further certificate relating to his date of birth from any other Authority in support of his claim that he was a juvenile as on the date of commission of offence. The Ld. Metropolitan Magistrate shall complete the inquiry expeditiously and as far as possible within a period of two months from the date Crl. Appeal No. 32/14 Page No.10 of 11 Sunil Vs. State and another of this order.
16. Appeal is accordingly allowed. Parties are directed to appear before the Court of Ld. Metropolitan Magistrate on 11.12.2014. Trial court record be sent back with the copy of the judgment. Appeal file be consigned to record room.
Dictated & announced in (SANJIV JAIN) open court today i.e on 4.12.14. Special Judge/P.C. Act, CBI3, Rohini Courts, Delhi.
Crl. Appeal No. 32/14 Page No.11 of 11 Sunil Vs. State and another Crl. Appeal No. 32/14 Page No.12 of 11 Sunil Vs. State and another