Pawan Kumar Gupta vs State Of Nct Of Delhi on 20 January, 2020


Supreme Court of India

Pawan Kumar Gupta vs State Of Nct Of Delhi on 20 January, 2020

Author: 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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