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Supreme Court of India
Pawan Kumar Gupta vs State Of Nct Of Delhi on 20 January, 2020Author: R. Banumathi
Bench: R. Banumathi, Ashok Bhushan, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 547 OF 2020
[Arising out of SLP(Crl.) D No.2122 of 2020]
PAWAN KUMAR GUPTA …Petitioner
VERSUS
STATE OF NCT OF DELHI …Respondent
ORDER
Accused Pawan Kumar Gupta has filed this SLP
challenging the order dated 19.12.2019 passed by the High Court
of Delhi in Criminal Revision Petition No.1301 of 2019 dismissing
the claim of the petitioner of juvenility.
2. Contention of the petitioner Pawan Kumar Gupta is that he
was a juvenile at the time of commission of the offence and that
the same is apparent from the School Leaving Certificate issued
in his favour by Gayatri Bal Sanskar Shala, Narayan Pur, Tanda,
District Ambedkar Nagar, Uttar Pradesh. According to the
petitioner, as per the said certificate, his date of birth is
Signature Not Verified
Digitally signed by
08.10.1996 and therefore, on the date of alleged incident i.e.
MAHABIR SINGH
Date: 2020.01.20
16:14:22 IST
Reason:
16.12.2012, the petitioner was aged only 16 years 02 months and
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08 days and that he was a juvenile on the date of the alleged
commission of the offence. Contention of the petitioner is that the
certificate has been found to be genuine by the investigating
officials and therefore, prayed for holding an enquiry in terms of
Section 7A of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (for short “JJ Act”). According to the petitioner
Pawan Kumar Gupta, as per Section 21 of the Act, no child in
conflict with law shall be sentenced to death or imprisonment for
life. The said petition was dismissed by the Additional Sessions
Judge, FTC Court No.7 by order dated 21.12.2018. In the said
order dated 21.12.2018, the learned Sessions Judge referred to
the order dated 10.01.2013 passed by the learned Metropolitan
Magistrate. The learned Sessions Judge also referred to the
order of the Supreme Court dated 09.07.2018 in and by which the
Supreme Court had inter alia rejected the plea of juvenility taken
by the petitioner Pawan Kumar Gupta while dismissing the review
petition. The learned Sessions Judge held that the Supreme
Court has held that the petitioner is not a juvenile on the date of
commission of the offence and in view of the order passed by the
Supreme Court dated 09.07.2018, the Sessions Judge would
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have no jurisdiction to determine the age of the petitioner Pawan
Kumar Gupta in terms of Section 7A of the JJ Act.
3. By the impugned order, the High Court also referred to the
order of the Supreme Court dated 09.07.2018 and pointed out
that the Supreme Court had taken note that the investigating
officials have verified the School Leaving Certificate from the
concerned school authorities and the order passed by the
Metropolitan Magistrate dated 10.01.2013 and after consideration
of all the documents, the Supreme Court negatived the plea of
juvenility taken by the petitioner Pawan Kumar Gupta by its order
dated 09.07.2018. In the impugned order, the High Court in detail
referred to the order passed by the learned Metropolitan
Magistrate dated 10.01.2013 and the order of the Supreme Court
dated 09.07.2018 and rejected the plea of juvenility raised by the
petitioner. While dismissing the plea of juvenility, the High Court
had noted that the petitioner had earlier raised the plea of
juvenility in the review petition filed before the Supreme Court
against the death penalty awarded to him and that the same was
dismissed by the Supreme Court on 09.07.2018.
4. We have heard Mr. A.P. Singh, learned counsel appearing
for the petitioner and Mr. Tushar Mehta, learned Solicitor General
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and Mr. Siddharth Luthra, learned Senior counsel appearing for
the NCT of Delhi and perused the impugned order and other
materials on record.
5. Mr. A.P. Singh, learned counsel for the petitioner has
submitted that the High Court has passed the order without
hearing him. In that view, we have taken note of the grievance of
the petitioner on merits. We have heard Mr. A.P. Singh at length
and considered his submissions on merits and the grounds raised
in the SLP.
6. 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 Pradhan v. State of Orissa (2015) 11 SCC 124. The
learned counsel also placed reliance upon Ashwani Kumar
Saxena v. State of Madhya Pradesh (2012) 9 SCC 750 wherein
para (32) of the said judgment lays down the procedure to be
followed to determine the age of the accused claiming to be
juvenile. It has been held that once the procedure as stipulated
under the Act has been followed, that order shall be the
conclusive proof of the age as regards the child in conflict with
law.
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7. As held in Ram Narain v. State of Uttar Pradesh (2015) 17
SCC 699, claim of juvenility may be raised at any stage even
after final disposal of the case. It may also be raised for the first
time even after final disposal of the matter. However, once the
accused has chosen to take the plea of juvenility before the trial
court, before the High Court and also before the Supreme Court
and the said plea has been rejected, it is not open to the accused
to reagitate the plea of juvenility by filing the fresh application
under Section 7A of the JJ Act.
8. In the present case, this is not the first time that the
petitioner has raised the plea of juvenility. When the matter was
pending before the trial court, plea of juvenility was raised by the
petitioner at the first instance. The learned trial court vide order
dated 07.01.2013 directed the Investigating Officer to file a report
regarding the documents he has relied upon to determine the age
of the accused. Upon consideration of the report of the
Investigating Officer, vide order dated 10.01.2013, the learned
Metropolitan Magistrate has held that the age verification report of
the petitioner Pawan Kumar Gupta was received and that the
accused did not dispute the age verification report filed by the
Investigating Officer and further, he did not dispute the age to be
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above 18 years at the time of commission of the offence. When
the matter was pending before the lower courts, earlier the
petitioner has raised the plea of juvenility and by order dated
10.01.2013, the learned Metropolitan Magistrate has rejected the
plea of juvenility. In the said order, the learned Metropolitan
Magistrate pointed out that the prosecution has placed certified
copies of the admission register of the petitioner when he first
attended the school and the same has been filed on record. It is
stated that age verification report of the petitioner Pawan Kumar
Gupta had been received and also certified copies had been filed
before the learned Metropolitan Magistrate. It is stated that the
said report referred to the statement of the parents of both the
petitioner Pawan Kumar Gupta and co-accused Vinay Sharma
where they (parents) have confirmed the age of their sons.
Pointing out that the parents of the petitioner or the counsel then
appearing for Pawan Kumar Gupta have not raised any objection
as to the age verification report filed by the IO and have not
disputed the age of the petitioner to be above 18 years on the
date and time of commission of the offence, the learned
Metropolitan Magistrate has negatived the plea of juvenility. This
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order dated 10.01.2013 has not been challenged by the
petitioner.
9. When the criminal appeal was pending before the High
Court in Crl.App. No.1398 of 2013, the petitioner and co-accused
Vinay have raised the plea of juvenility that they were juvenile on
the date of the alleged commission of the offence. Upon
consideration of the submissions, by the reasons stated in paras
(150) to (153), by its judgment dated 13.03.2014, the High Court
rejected the plea of juvenility raised by the petitioner. The High
Court has also pointed out that the order passed by the learned
Metropolitan Magistrate dated 10.01.2013 has not been
challenged. In para (150), the High Court pointed out that by the
order dated 10.01.2013, the learned Metropolitan Magistrate has
held that the parents of the petitioner Pawan Kumar Gupta had
confirmed his age as set out in the report which was included in
the statement of the parents of the petitioner. In para (150), the
High Court observed as under:-
“150. ……It may be noted that the learned M.M. in her order has clearly
recorded the fact that the parents of Vinay Sharma and Pawan Kumar
had confirmed the age of their respective wards as set out in the Report
which included the written statement of the parents of both the accused
persons. Learned M.M. further noted that the counsel for accused Vinay
Sharma and Pawan Kumar along with the said accused had not raised
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any objection to the Age Verification Report filed by the I.O. and the
accused did not dispute their age to be above 18 years at the time of the
commission of the offence.”
10. The plea of juvenility was then raised by the petitioner in the
review petition before the Supreme Court. After referring to the
submissions of the learned counsel for the NCT of Delhi and the
order of the learned Metropolitan Magistrate dated 10.01.2013,
the Supreme Court by its order dated 09.07.2018 has rejected the
plea of juvenility taken by the petitioner and the co-accused Vinay
Sharma and that order has attained finality. The relevant portion
of the order dated 09.07.2018 passed by the Supreme Court
reads as under:-
“18. …..On the claim that Pawan was a juvenile, Shri Luthra referred to
the order dated 10-1-2013 where age verification report of Pawan has
been received and also certified copies had been filed on record. The
report had referred to the written statement of the parents of both these
accused where they have confirmed the age of their wards. There was
no infirmity in the trial court taking decision that both were major and the
trial court proceeded accordingly. There is no substance in the
submission raised by the learned counsel for the petitioners.
……..
45. Now, coming to the submission of the learned counsel for Petitioner
2 that he was juvenile at the time of occurrence. The said issue was also
considered by the trial court and rejected. The trial court on the basis of
the material placed before it had rightly concluded that Petitioner 2 was
not a juvenile. The learned counsel for the respondent has rightly
referred to the proceedings of the trial court dated 10-9-2013. In this
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respect this submission also does not furnish any ground for review of
the judgment.”
11. Section 7A of the JJ Act stipulates that an application can
be filed before any court at any stage including the stage after the
final disposal of the petition. However, once a convict has chosen
to take the plea of juvenility before the learned Magistrate, High
Court and also before the Supreme Court and the said plea has
been rejected up to the Supreme Court, the petitioner cannot be
allowed to reagitate the plea of juvenility by filing fresh application
under Section 7A of the JJ Act. Considering the earlier orders
passed by the Metropolitan Magistrate dated 10.01.2013 and the
judgment of the High Court dated 13.03.2014 and the order
passed by the Supreme Court dated 09.07.2018, in our view, the
learned Single Judge of the Delhi High Court rightly dismissed the
revision petition. We do not find any ground warranting
interference with the impugned order.
12. Mr. A.P. Singh has submitted that the High Court has made
certain observations against him which is prejudicial to his rights.
He further submitted that he was not present at the time of
passing of the order by the High Court and as such the
observations are not justified. We have considered the above
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submission raised by learned counsel for the petitioner but do not
express any opinion as it is not germane to the present issue. We
however reserve liberty to Mr. Singh to take appropriate
proceedings separately against the observations made by the
High Court against him.
13. In the result, the SLP is dismissed.
………………………..J.
[R. BANUMATHI]
..………………………..J.
[ASHOK BHUSHAN]
.………………………..J.
[A.S. BOPANNA]
New Delhi;
January 20, 2020.
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