ASHOK KUMAR MEHRA & ANR.versusTHE STATE OF PUNJAB ETC.

                           [2019] 6 S.C.R. 41                                41


                ASHOK KUMAR MEHRA & ANR.                                     A
                                    v.
                   THE STATE OF PUNJAB ETC.
              (Criminal Appeal Nos. 1466-1467 of 2008)
                              APRIL 15, 2019                                 B
                 [ABHAY MANOHAR SAPRE AND
                    DINESH MAHESHWARI, JJ.]
        Juvenile Justice (Care and Protection of Children) Act, 2000:
ss. 2(k), 2(I), 7A read with s.20 – Benefit of 2000 Act – Entitlement
to – Conviction and sentence of appellant no. 2 for offences u/s.            C
302/34 IPC by the High Court reversing the order of acquittal by
Sessions Judge – Plea of juvenility raised before this Court for the
first time by the appellant – On appeal, held: In light of ss. 2(k),
2(I), 7A rw s. 20 as amended in 2006, a juvenile who had not
completed eighteen years on the date of commission of the offence            D
is entitled to the benefit of the 2000 Act, even though plea of juvenility
raised before this Court for the first time – Appellant no. 2 being a
juvenile is entitled to raise the plea even in this appeal – Thus, the
appellant no.2 was a juvenile on the date of commission of the
offence and though till date he has already undergone considerable
jail sentence partly as an under-trial and partly as a convict, the          E
order passed by the High Court qua appellant no.2 is set aside.
      Dismissing the appeal filed by appellant No.1 and allowing
the appeal filed by appellant No.2, the Court
     HELD: 1.1 So far as appeal filed by appellant No.1-father is
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concerned, the same stands abated on account of his death.
[Para 7][44-B]
      1.2 Appellant No.2 was born on 14.06.1980 whereas the
date of commission of the offence is 04.01.1998. It is, therefore,
an admitted fact that appellant No. 2 was a juvenile (he was below
the age of 18 years, i.e., he was 17 years and 5 months) on the              G
date of the commission of the offence. Though this fact was neither
brought to the notice of the Sessions Judge and nor the High
Court and was brought to the notice of this Court for the first
time by appellant No. 2 in this appeal, yet in the light of law laid
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                                   41
42            SUPREME COURT REPORTS                      [2019] 6 S.C.R.


A    down by this in Raju’s case, appellant No. 2 is entitled to raise
     this plea even in this appeal. In light of Sections 2(k), 2(I), 7A
     read with Section 20 of the 2000 Act as amended in 2006, a
     juvenile who had not completed eighteen years on the date of
     commission of the offence is entitled to the benefit of the 2000
     Act. The claim of juvenility can be raised at any stage before any
B
     Court by an accused, including this Court, even after the
     final disposal of a case, in terms of Section 7A of the 2000 Act.
     [Paras 8-11][45-E-H; 44-D-G]
            1.3 As regards, the issue relating to the genuineness of
     the date of birth of appellant No. 2, the appellant No.2 had filed
C    his date of birth certificate in the Sessions Court; the prosecution
     did not object to the correctness of the birth certificate before
     the Sessions Judge; this Court granted bail to appellant No. 2 on
     this ground observing therein that since he was juvenile at the
     time of commission of the offence and was below 18 years, which
D    was not disputed by the respondent-State; and even at the time
     of hearing of this appeal, counsel for the State did not dispute the
     date of birth certificate of appellant No.2. In the light of these,
     it is not necessary to hold any further inquiry. [Para 12, 13]
     [46-A-C]
E          1.4 Since appellant No.2 was a juvenile on the date of
     commission of the offence and though till date he has already
     undergone considerable jail sentence partly as an under-trial and
     partly as a convict, the impugned order qua appellant no. 2 is set
     aside. [Para 14][46-D]

F          Raju v. The State of Haryana 2019 (4) SCALE 398 –
           relied on.
                            Case Law Reference
     2019 (4) SCALE 398             relied on              Para 8, 14
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
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     Nos. 1466-1467 of 2008.
           From the Judgment and Order dated 21.07.2008 of the High
     Court of Punjab and Haryana at Chandigarh in Criminal Appeal
     No. 681-DBA of 2000 and Criminal Revision No. 1242 of 2000.
H          Yash Pal Dhingra, Adv. for the Appellants.
  ASHOK KUMAR MEHRA v. THE STATE OF PUNJAB ETC.                             43


      Ankit Swarup, Ms.Vidisha Swarup, Jawad Tariq, Rohit Kumar             A
Singh, Ms. Jaspreet Gogia, Ms. Mandakini Singh, Ms. Ashima Mandla,
Advs. for the Respondents.
      The Judgment of the Court was delivered by
      ABHAY MANOHAR SAPRE, J.
                                                                            B
       1. These appeals are directed against the final judgment and order
dated 21.07.2008 passed by the High Court of Punjab & Haryana at
Chandigarh in Criminal Appeal No.681-DBA of 2000 and Criminal
Revision No.1242 of 2000 whereby the High Court allowed the criminal
appeal filed by respondent No.1(State) herein and the criminal revision
filed by respondent No.2(Complainant) herein by setting aside the           C
judgment dated 06.06.2000 passed by the Sessions Judge, Rupnagar in
Sessions Case No.10 of 1998 and convicted both the appellants for the
offence punishable under Section 302 read with Section 34 of the Indian
Penal Code, 1860(hereinafter referred to as “IPC”) and sentenced them
to undergo imprisonment for life and to pay a fine of Rs.5,000/- each. In   D
default of payment of fine, they shall undergo further rigorous
imprisonment for a period of six months each.
      2. A few facts need mention hereinbelow for the disposal of these
appeals.
      3. Appellant No.1-Ashok Kumar Mehra is the father of appellant        E
No.2-Kushwant@Sukhwant Kumar Mehra. Both the appellants, i.e.,
father and son were prosecuted for commission of the offence of
committing murder of one Inderjit Dhiman. The Sessions Judge by
judgment/order dated 06.06.2000 passed in Sessions Case No.10/1998
acquitted both the appellants.                                              F
       4. The State and the Complainant both felt aggrieved and filed
criminal appeal and criminal revision in the High Court. By impugned
order, the High Court allowed the criminal appeal as well as the criminal
revision and while reversing the judgment of acquittal passed by the
Sessions Judge, convicted both the appellants and awarded them life
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sentence, which has given rise to filing of these appeals by both the
accused persons, i.e., father and son.
      5. Heard Mr. T.S. Doabia, learned senior counsel for the appellants
and Mr. Ankit Swarup & Ms. Jaspreet Gogia, learned counsel for the
respondents.
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44             SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A            6. Mr. T.S. Doabia, learned senior counsel for the appellants, at
     the outset, stated that so far as the appellant No.1-Ashok Kumar Mehra,
     i.e., father is concerned, he has expired during the pendency of these
     appeals. Learned counsel then brought to our notice that so far as appellant
     No.2-Kushwant @ Sukhwant Kumar Mehra, i.e., son is concerned, he
     was juvenile on the date of commission of the offence.
B
           7. In our opinion, so far as appeal filed by appellant No.1-Ashok
     Kumar Mehra, i.e., father is concerned, the same stands abated on
     account of his death. In this view of the matter, the appeal filed by
     appellant No.1 is accordingly dismissed as abated.
C          8. Now so far as the appeal filed by appellant No.2 - Sukhwant
     Kumar, i.e., son is concerned, the same, in our view, deserves to be
     allowed in the light of law laid down by this Court in a recent decision of
     this Court in Raju vs. The State of Haryana, 2019(4) SCALE 398
     wherein a similar question was involved. This is what was held by this
     Court (Three Judge Bench) in Paras 9, 10, and 25 as under:
D
           “9. It is by now well-settled, as was held in Hari Ram v.
           State of Rajasthan, (2009) 13 SCC 211, that in light of
           Sections 2(k), 2(I), 7A read with Section 20 of the 2000 Act
           as amended in 2006, a juvenile who had not completed
           eighteen years on the date of commission of the offence is
E          entitled to the benefit of the 2000 Act (also see Mohan Mali
           v. State of Madhya Pradesh, (2010) 6 SCC 669; Daya Nand
           v. State of Haryana, (2011) 2 SCC 224; Dharambir v. State
           (NCT) of Delhi (supra); Jitendra Singh @ Babboo Singh v.
           State of Uttar Pradesh, (2013) 11 SCC 193). It is equally
F          well-settled that the claim of juvenility can be raised at any
           stage before any Court by an accused, including this Court,
           even after the final disposal of a case, in terms of Section
           7A of the 2000 Act (see Dharambir v. State (NCT) of Delhi,
           (supra), Abuzar Hossain v. State of West Bengal, (2012) 10
           SCC 489; Jitendra Singh @ Babboo Singh v. State of UP,
G          (supra); Abdul Razzaq v. State of Uttar Pradesh, (2015) 15
           SCC 637).
           10. In light of the above legal position, it is evident that the
           Appellant would be entitled to the benefit of the 2000 Act if
           his age is determined to be below 18 years on the date of
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  ASHOK KUMAR MEHRA v. THE STATE OF PUNJAB ETC.                               45
           [ABHAY MANOHAR SAPRE, J.]

      commission of the offence. Moreover, it would be irrelevant             A
      that the plea of juvenility was not raised before the Trial
      Court, in light of Section 7A. As per the report of the inquiry
      conducted by the Registrar (Judicial) of this Court, in this
      case, the Appellant was below 18 years of age on the date
      of commission of the offence. The only question before us
                                                                              B
      that needs to be determined is whether such report may
      be given precedence over the contrary view taken by the
      High Court, so that the benefit of the 2000 Act may be given
      to the Appellant.
      25. Criminal Appeal hereby stands allowed and the order
      of the High Court affirming the conviction and sentence of              C
      the Appellant under Section 376(2)(g) of the IPC is set aside.
      Seeing that the Appellant has already spent 6 years in
      imprisonment, whereas the maximum period for which a
      juvenile may be sent to a special home is only 3 years as
      per Section 15(1)(g) of the 2000 Act, and since the Appellant           D
      has already been enlarged on bail by virtue of the order of
      the Court dated 09.05.2014, he need not be taken into
      custody. His bail bonds stand discharged and all proceedings
      against him, so far as they relate to the present case, stand
      terminated.”
                                                                              E
       9. When we examine the facts of the case of appellant No.2 in
the light of law laid down in the case of Raju (supra), we find that
appellant No.2 was born on 14.06.1980 whereas the date of commission
of the offence is 04.01.1998.
      10. It is, therefore, an admitted fact that appellant No. 2 was a       F
juvenile (he was below the age of 18 years, i.e., he was 17 years and 5
months) on the date of the commission of the offence (04.01.1998). In
other words, appellant No. 2 had not completed the age of 18 years on
the date of commission of the offence, i.e., on 04.01.1998.
       11. Though this fact was neither brought to the notice of the          G
Sessions Judge and nor the High Court and was brought to the notice of
this Court for the first time by appellant No. 2 in this appeal, yet in the
light of law laid down by this Court in several decisions referred to in
Para 10 of the decision in Raju (supra), appellant No. 2 is entitled to
raise this plea even in this appeal.
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46                SUPREME COURT REPORTS                         [2019] 6 S.C.R.


A           12. Now, so far as the issue relating to the genuineness of the
     date of birth of appellant No. 2 is concerned, firstly, it is not in dispute
     that appellant No.2 had filed his date of birth certificate in the Sessions
     Court; Secondly, the prosecution did not object to the correctness of the
     birth certificate before the Sessions Judge; Thirdly, this Court by order
     dated 11.07.2011 granted bail to appellant No. 2 on this ground observing
B
     therein that since he was juvenile at the time of commission of the offence
     and was below 18 years, which was not disputed by the respondent-
     State; and lastly, even at the time of hearing of this appeal, learned counsel
     for the respondent-State did not dispute the date of birth certificate of
     appellant No.2.
C          13. In the light of these four reasons, we are of the view that it is
     not necessary to hold any further inquiry on this question.
            14. In view of the foregoing discussion, we are of the considered
     opinion that since appellant No.2 was a juvenile on the date of commission
     of the offence and though till date he has already undergone considerable
D    jail sentence partly as an under-trial and partly as a convict, yet the
     appeal filed by appellant No. 2 has to be allowed as was done in the
     case of Raju (supra) without going into the merits of the case and passing
     any other consequential order in that regard.
          15. The appeal of appellant No. 2 is accordingly allowed. The
E    impugned order qua appellant No.2 is set aside.

     Nidhi Jain                                                  Appeals disposed of.



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