Nanhey vs The State, Govt. of NCT of Delhi

Sanjay Kishan Kaul, J.—The appellant Nanhey has been convicted and sentenced in Sessions Case No. 96/96 arising out of FIR No. 63/89 registered at PS Mansrovar Park for having committed the offences punishable under Sections 302 and 392 of IPC and sentenced accordingly.

Feeling aggrieved by the impugned judgment of conviction dated 18.10.1996 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 being Crl. M.A. 9374/2009 u/s 482 of Cr.P.C. alleging that he was a juvenile on the date of commission of offence and prayed for determination of his age in terms of The Juvenile Justice (Care and Protection of Children) Act, 2000 ("the said Act. for short) as amended up to date and Rules framed thereunder and grant of benefits under said Act and Rules framed thereunder.

In support of his prayer, the appellant filed photocopy of his School Leaving Certificate wherein his date of birth is shown as 08.07.1972 suggesting that on 10.04.1989, date of commission of offence, he was a juvenile being under 18 years of age.

The respondent was accordingly directed to verify the authenticity of the said School Leaving Certificate and as per the reports submitted by the SHO Police Station: Mansarovar Park dated 02.09.2009, it has been confirmed that the School Leaving Certificate submitted by the appellant is genuine and the Head Master of the Primary School, Rohada, Lal Ganj, Partap Garh, UP has certified that as per their school records, the appellant Nanhey s/o Ram Dev, R/o Village Lachhidadi Kunda, Partap Garh, UP was admitted in the school on 16.07.1979 and left the school on 30.06.1983 after 4th standard and as per the school records, his date of birth is 08.07.1972.

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, to be precise, the age was 16 years 9 months and 3 days. 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 7A 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 7A 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 16 years 9 months and 3 days. Clause 2 of Section 7A 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 Nanhey has already suffered detention for a period of more than nine 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.