PAWAN KUMAR GUPTA versus STATE OF NCT OF DELHI on 20 January 2020

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1. Accused Pawan Kumar Gupta has filed this SLP challengingthe order dated 19.12.2019 passed by the High Court of Delhi in CriminalRevision Petition No.1301 of 2019 dismissing the claim of the petitionerof juvenility.

2. Contention of the petitioner Pawan Kumar Gupta is that heGwas a juvenile at the time of commission of the offence and that thesame is apparent from the School Leaving Certificate issued in his favourby Gayatri Bal Sanskar Shala, Narayan Pur, Tanda, District AmbedkarNagar, Uttar Pradesh. According to the petitioner, as per the saidcertificate, his date of birth is 08.10.1996 and therefore, on the date ofalleged incident i.e. 16.12.2012, the petitioner was aged only 16 years 02H

months and 08 days and that he was a juvenile on the date of the allegedcommission of the offence. Contention of the petitioner is that thecertificate has been found to be genuine by the investigating officialsand therefore, prayed for holding an enquiry in terms of Section 7A ofthe Juvenile Justice (Care and Protection of Children) Act, 2000 (forshort “JJ Act”). According to the petitioner Pawan Kumar Gupta, as perSection 21 of the Act, no child in conflict with law shall be sentenced todeath or imprisonment for life. The said petition was dismissed by theAdditional Sessions Judge, FTC Court No.7 by order dated 21.12.2018.In the said order dated 21.12.2018, the learned Sessions Judge referredto the order dated 10.01.2013 passed by the learned MetropolitanMagistrate. The learned Sessions Judge also referred to the order ofthe Supreme Court dated 09.07.2018 in and by which the Supreme Courthad inter alia rejected the plea of juvenility taken by the petitioner PawanKumar Gupta while dismissing the review petition. The learned SessionsJudge held that the Supreme Court has held that the petitioner is not ajuvenile on the date of commission of the offence and in view of theorder passed by the Supreme Court dated 09.07.2018, the Sessions Judgewould have no jurisdiction to determine the age of the petitioner PawanKumar Gupta in terms of Section 7A of the JJ Act.

3. By the impugned order, the High Court also referred to theorder of the Supreme Court dated 09.07.2018 and pointed out that theSupreme Court had taken note that the investigating officials have verifiedthe School Leaving Certificate from the concerned school authoritiesand the order passed by the Metropolitan Magistrate dated 10.01.2013and after consideration of all the documents, the Supreme Court negativedthe plea of juvenility taken by the petitioner Pawan Kumar Gupta by itsorder dated 09.07.2018. In the impugned order, the High Court in detailreferred to the order passed by the learned Metropolitan Magistratedated 10.01.2013 and the order of the Supreme Court dated 09.07.2018and rejected the plea of juvenility raised by the petitioner. While dismissingthe plea of juvenility, the High Court had noted that the petitioner hadearlier raised the plea of juvenility in the review petition filed before theSupreme Court against the death penalty awarded to him and that thesame was dismissed by the Supreme Court on 09.07.2018.

4. We have heard Mr. A.P. Singh, learned counsel appearing forthe petitioner and Mr. Tushar Mehta, learned Solicitor General and Mr.Siddharth Luthra, learned Senior counsel appearing for the NCT of Delhiand perused the impugned order and other materials on record.

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5. Mr. A.P. Singh, learned counsel for the petitioner has submittedthat the High Court has passed the order without hearing him. In thatview, we have taken note of the grievance of the petitioner on merits.We have heard Mr. A.P. Singh at length and considered his submissionson merits and the grounds raised in the SLP.

B6. Contending that the plea of juvenility can be raised at any stage,learned counsel for the petitioner placed reliance upon Ram Narain v.State of Uttar Pradesh (2015) 17 SCC 699 and Upendra Pradhanv. State of Orissa (2015) 11 SCC 124. The learned counsel alsoplaced reliance upon Ashwani Kumar Saxena v. State of MadhyaPradesh (2012) 9 SCC 750 wherein para (32) of the said judgmentClays down the procedure to be followed to determine the age of theaccused claiming to be juvenile. It has been held that once the procedureas stipulated under the Act has been followed, that order shall be theconclusive proof of the age as regards the child in conflict with law.

7. As held in Ram Narain v. State of Uttar Pradesh (2015) 17DSCC 699, claim of juvenility may be raised at any stage even after finaldisposal of the case. It may also be raised for the first time even afterfinal disposal of the matter. However, once the accused has chosen totake the plea of juvenility before the trial court, before the High Courtand also before the Supreme Court and the said plea has been rejected,Eit is not open to the accused to reagitate the plea of juvenility by filing thefresh application under Section 7A of the JJ Act.

8. In the present case, this is not the first time that the petitionerhas raised the plea of juvenility. When the matter was pending beforethe trial court, plea of juvenility was raised by the petitioner at the firstinstance. The learned trial court vide order dated 07.01.2013 directedFthe Investigating Officer to file a report regarding the documents he hasrelied upon to determine the age of the accused. Upon consideration ofthe report of the Investigating Officer, vide order dated 10.01.2013, thelearned Metropolitan Magistrate has held that the age verification reportof the petitioner Pawan Kumar Gupta was received and that the accusedGdid not dispute the age verification report filed by the Investigating Officerand further, he did not dispute the age to be above 18 years at the time ofcommission of the offence. When the matter was pending before thelower courts, earlier the petitioner has raised the plea of juvenility and byorder dated 10.01.2013, the learned Metropolitan Magistrate has rejectedHthe plea of juvenility. In the said order, the learned Metropolitan Magistrate pointed out that the prosecution has placed certified copies of theadmission register of the petitioner when he first attended the schooland the same has been filed on record. It is stated that age verificationreport of the petitioner Pawan Kumar Gupta had been received and alsocertified copies had been filed before the learned Metropolitan Magistrate.It is stated that the said report referred to the statement of the parents ofboth the petitioner Pawan Kumar Gupta and co-accused Vinay Sharmawhere they (parents) have confirmed the age of their sons. Pointing outthat the parents of the petitioner or the counsel then appearing for PawanKumar Gupta have not raised any objection as to the age verificationreport filed by the IO and have not disputed the age of the petitioner tobe above 18 years on the date and time of commission of the offence,the learned Metropolitan Magistrate has negatived the plea of juvenility.This order dated 10.01.2013 has not been challenged by the petitioner.

9. When the criminal appeal was pending before the High Courtin Crl.App. No.1398 of 2013, the petitioner and co-accused Vinay haveraised the plea of juvenility that they were juvenile on the date of thealleged commission of the offence. Upon consideration of the submissions,by the reasons stated in paras (150) to (153), by its judgment dated13.03.2014, the High Court rejected the plea of juvenility raised by thepetitioner. The High Court has also pointed out that the order passed bythe learned Metropolitan Magistrate dated 10.01.2013 has not beenchallenged. In para (150), the High Court pointed out that by the orderdated 10.01.2013, the learned Metropolitan Magistrate has held that theparents of the petitioner Pawan Kumar Gupta had confirmed his age asset out in the report which was included in the statement of the parentsof the petitioner. In para (150), the High Court observed as under:- “150. ……It may be noted that the learned M.M. in her order hasclearly recorded the fact that the parents of Vinay Sharma andPawan Kumar had confirmed the age of their respective wardsas set out in the Report which included the written statement ofthe parents of both the accused persons. Learned M.M. furthernoted that the counsel for accused Vinay Sharma and PawanKumar along with the said accused had not raised any objectionto the Age Verification Report filed by the I.O. and the accuseddid not dispute their age to be above 18 years at the time of thecommission of the offence.”

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A10. The plea of juvenility was then raised by the petitioner in thereview petition before the Supreme Court. After referring to thesubmissions of the learned counsel for the NCT of Delhi and the orderof the learned Metropolitan Magistrate dated 10.01.2013, the SupremeCourt by its order dated 09.07.2018 has rejected the plea of juvenilitytaken by the petitioner and the co-accused Vinay Sharma and that orderBhas attained finality. The relevant portion of the order dated 09.07.2018passed by the Supreme Court reads as under:- “18. …..On the claim that Pawan was a juvenile, Shri Luthrareferred to the order dated 10-1-2013 where age verification reportof Pawan has been received and also certified copies had beenCfiled on record. The report had referred to the written statementof the parents of both these accused where they have confirmedthe age of their wards. There was no infirmity in the trial courttaking decision that both were major and the trial court proceededaccordingly. There is no substance in the submission raised by theDlearned counsel for the petitioners.

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45. Now, coming to the submission of the learned counsel forPetitioner 2 that he was juvenile at the time of occurrence. Thesaid issue was also considered by the trial court and rejected. Thetrial court on the basis of the material placed before it had rightlyconcluded that Petitioner 2 was not a juvenile. The learned counselfor the respondent has rightly referred to the proceedings of thetrial court dated 10-9-2013. In this respect this submission alsodoes not furnish any ground for review of the judgment.”

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11. Section 7A of the JJ Act stipulates that an application can befiled before any court at any stage including the stage after the finaldisposal of the petition. However, once a convict has chosen to take theplea of juvenility before the learned Magistrate, High Court and alsobefore the Supreme Court and the said plea has been rejected up to theGSupreme Court, the petitioner cannot be allowed to reagitate the plea ofjuvenility by filing fresh application under Section 7A of the JJ Act.Considering the earlier orders passed by the Metropolitan Magistratedated 10.01.2013 and the judgment of the High Court dated 13.03.2014and the order passed by the Supreme Court dated 09.07.2018, in ourview, the learned Single Judge of the Delhi High Court rightly dismissed H

the revision petition. We do not find any ground warranting interferencewith the impugned order.

12. Mr. A.P. Singh has submitted that the High Court has madecertain observations against him which is prejudicial to his rights. Hefurther submitted that he was not present at the time of passing of theorder by the High Court and as such the observations are not justified.We have considered the above submission raised by learned counsel forthe petitioner but do not express any opinion as it is not germane to thepresent issue. We however reserve liberty to Mr. Singh to takeappropriate proceedings separately against the observations made bythe High Court against him.

13. In the result, the SLP is dismissed.

Divya Pandey

Petition dismissed.

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