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Pawan Kumar Gupta v. State .

Delhi High Court

Dec 19, 2019

Judgment

Subsequent
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CaseIQ

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High Court of Delhi — Oral Judgment Summary (19.12.2019)

Factual and Procedural Background

This petition under sections 397 read with 482 Cr.P.C. was filed by the petitioner/convict, Pawan Kumar Gupta, seeking to set aside the impugned order dated 21.12.2018 passed by the learned ASJ/FTC, Patiala House Court in FIR No.413/2012 (offences under various sections of the IPC). The petitioner asserted that he was a juvenile at the time of the alleged offences. He relied upon a School Leaving Certificate and mark sheet issued by Gayati Bal Sanskar Shala, Narayanpur, Tanda, Distt. Ambedkar Nagar (U.P.) stating his date of birth as 08.10.1996, which—if accepted—would make him 16 years old on the alleged incident date of 16.12.2012.

The petitioner contended that an application under section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the "J.J. Act") read with Rule 12 of the Juvenile Justice Rules, 2007, for age determination was maintainable and that the District & Sessions Judge had applied law contrary to the facts and violated principles of natural justice in his order dated 21.12.2018.

The case history recorded in the judgment includes that (i) the petitioner had earlier raised the plea of juvenility before the Supreme Court and the Supreme Court had, by an order dated 09.07.2018, negated the plea and indicated no grounds for review; (ii) verification by investigating officials on directions of the Supreme Court reported that no birth proof had been submitted at the time of admission to the school; and (iii) a review petition before the Supreme Court had been dismissed. The learned ASJ below held that in view of the Supreme Court's order, the trial court had no jurisdiction under section 7A to revisit the question of age and that the petitioner could not re-agitate the plea after the Supreme Court had rejected it.

In the High Court, the petitioner’s counsel failed to appear when the matter was taken up; the Court attempted to contact the filing advocate and, after giving an opportunity to appear, disposed of the petition in the advocate's absence. The High Court dismissed the petition as not maintainable, imposed costs of ₹25,000 on the filing advocate (Shri A.P. Singh) for his conduct, directed deposit of that amount for welfare of destitute women and children, and directed that the order be sent to the Delhi Bar Council.

Legal Issues Presented

Whether the impugned order dated 21.12.2018 (which declined to entertain the petitioner’s claim of juvenility) ought to be set aside.
Whether an application under section 7A of the Juvenile Justice Act for determination of age is maintainable before the trial court (or any court below) after the Supreme Court has considered and rejected a plea of juvenility in the convict's earlier proceedings.
Whether the petition filed under sections 397/482 Cr.P.C. is maintainable in the circumstances recorded by the Court, including the pendency and outcome of Supreme Court proceedings and the conduct of counsel for the petitioner.

Arguments of the Parties

Petitioner's Arguments

The petitioner asserted he was a juvenile on the date of the alleged offence (16.12.2012), based on his School Leaving Certificate and mark sheet showing date of birth as 08.10.1996 (making him 16 years, 2 months and 8 days on the date of the incident).
The petitioner relied on section 7A of the J.J. Act and Rule 12 of the J.J. Rules to contend that a claim of juvenility may be raised before any court at any stage, including after final disposal, and that the trial court has jurisdiction to determine age by taking evidence under section 7A.
To support the contention about maintainability of age-determination applications, the petitioner relied upon the case of Abdul Razzak vs. State of Uttar Pradesh, 2015 (3) SCALE 659.
The petitioner contended that the order dated 19.01.2013 by the learned Magistrate was bad because it improperly relied on the investigating officer's age verification report and no ossification test had been conducted nor any order passed in that regard.
The petitioner alleged that the investigating police officials had pressured his illiterate father into signing statements and that the father had later informed authorities that the petitioner was below 18 years of age.

State's / Respondent's Arguments

The State (through the learned APP and Additional Standing Counsel) submitted that the issue of juvenility raised in the present petition had already been considered and rejected by the Hon'ble Supreme Court (order dated 09.07.2018) and therefore the present petition is not maintainable.
The State pointed out that, on the Supreme Court's directions, investigating officials verified the School Leaving Certificate at the school and reported that no birth proof documents had been submitted at the time of admission—facts which underpinned the Supreme Court’s rejection of the juvenility plea.
The State (and victim's counsel) also argued that the petitioner was adopting delay tactics to avoid the imminent execution of the death sentence confirmed by the trial court and by higher courts; they drew attention to procedural irregularities and timing of affidavits to support the contention the filing was intended to delay execution.
The State highlighted procedural and conduct issues: the affidavit supporting the petition was attested on 26.03.2019 but the petition was drafted and filed on 05.04.2019 and was left under objections; the advocate for the petitioner did not appear as directed by the Court despite communications.

Victim's Counsel / Other Observations

The counsel for the victim informed the High Court that the petitioner and his counsel were employing delaying tactics and that the review petitions were already dismissed by the Supreme Court.
It was pointed out that affidavits supporting condonation of delay applications bore dates (10.12.2019) inconsistent with the earlier affidavit and that the advocate failed to respond to Court communications about appearance.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Abdul Razzak vs. State of Uttar Pradesh, 2015 (3) SCALE 659	Relied upon by the petitioner to strengthen the submission regarding maintainability of an application under section 7A of the J.J. Act (i.e., that juvenility claims may be raised and recognized at any stage).	The Court recorded that the petitioner relied on this authority, but the High Court's decision turned on the fact that the Supreme Court had already considered and rejected the juvenility plea; the judgment does not elaborate further application of this precedent.
Writ Petition (C) No.8889/2011 titled "Court on Its Own Motion vs. Department of Woman and Child Development, National Commission for Protection of Child Rights (NCPCR)"	The judgment record shows that pursuant to this Writ Petition, the petitioner's father had visited Tihar Jail and certain communications/events followed; the opinion uses this factual matrix.	The Court noted that pursuant to that writ petition the father visited Tihar Jail and that the accused stated to the father that he was below 18; this factual sequence was recorded by the petitioner but the High Court did not treat the writ as overruling the Supreme Court's later order.
Order of the Hon'ble Supreme Court dated 09.07.2018 (review of conviction/death sentence)	The Supreme Court, on the material before it (including the learned MM's order of 10.01.2013 and verification by investigating officials), negated the plea of juvenility and dismissed review; thus it functioned as the binding higher-court determination of the juvenility issue in these proceedings.	The High Court relied upon this Supreme Court order to hold the present petition not maintainable: the Court below and the High Court treated the Supreme Court's rejection of the juvenility plea as preclusive of a fresh section 7A challenge in the trial courts, and the High Court dismissed the petition on that basis.

Court's Reasoning and Analysis

The High Court's analysis proceeded on both procedural and substantive grounds recorded in the judgment:

Procedural conduct and appearance: The Court observed that petitioner’s counsel had sought an adjournment at 10:30 a.m. and left the court; subsequently the court master tried to contact the filing advocate (Shri A.P. Singh) by text, call and email and directed appearance at 2:30 p.m. The advocate did not appear. In the absence of the advocate and in view of urgency, the Court proceeded to dispose of the petition. The Court deplored the advocate's practice of leaving documents that raise objections on the record and not pursuing the matter when listed, treating that as deliberate conduct to delay execution.
Effect of prior Supreme Court decision: The Court placed decisive weight on the fact that the Hon'ble Supreme Court, by its order dated 09.07.2018, had considered and rejected the petitioner’s plea of juvenility (noting also the learned Magistrate's order dated 10.01.2013 and subsequent verification by investigating officials). The Court below had concluded that in view of that Supreme Court order it lacked jurisdiction to determine the age of the petitioner under section 7A of the J.J. Act. The High Court accepted that reasoning and concluded that once the plea of juvenility has been considered and rejected by the Supreme Court during the conviction/appeal/review proceedings, the petitioner could not re-agitate the same plea before courts below by filing a fresh section 7A application.
Maintainability and abuse of process: Although the opinion recognizes the general proposition (as asserted by the petitioner) that a claim of juvenility may be raised at any stage, the Court reasoned that where the convict had chosen to raise the plea before the Supreme Court and it had been rejected, re-opening the identical claim in inferior courts would amount to re-agitation of a matter already decided by a higher court. Therefore, in the specific factual matrix before the Court (including Supreme Court's order and the dismissal of review), the petition was not maintainable.
Conduct of counsel and related sanctions: The Court analyzed the chronology and dates of affidavits and found irregularities (e.g., affidavit attested on 26.03.2019; petition filed on 05.04.2019; documents left under objections). The Court concluded that counsel's conduct amounted to playing "hide and seek" with the Court and facilitating delay. On that ground it imposed costs of ₹25,000 on the filing advocate and directed further action by the Bar Council.

Holding and Implications

Holding: DISMISSED. The petition under sections 397/482 Cr.P.C. was dismissed by the High Court as not maintainable.

Immediate consequences and directions ordered by the Court (as recorded in the judgment):

The petition was dismissed for being not maintainable in light of the Supreme Court's earlier order rejecting the juvenility plea.
The Court imposed costs of ₹25,000 upon Shri A.P. Singh, Advocate (the filing advocate) for his conduct in relation to the petition; that amount was directed to be deposited within one week in favour of "Nirmal Chhaya, Jail Road, Hari Nagar, New Delhi" for welfare of destitute women and children, failing which the Registrar General was directed to recover the amount as per law.
The Court directed that the order be sent to the Delhi Bar Council for necessary action against the advocate named in the order.
Pending applications in the matter were dismissed and an order "dasti" under the signature of the Court Master was recorded.

Broader implications:

The judgment is based on the specific factual and procedural matrix before the Court—principally the Supreme Court's prior consideration and rejection of the juvenility plea—and the advocate's conduct. The opinion does not claim to establish a general new legal precedent beyond applying the consequence that a plea of juvenility already rejected by the Supreme Court in the same proceedings cannot be re-agitated in inferior courts by filing a fresh section 7A application; the decision mainly resolves the petition on the facts and record before the Court and imposes costs and administrative consequences.

Show all summary ...

$~59 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 19.12.2019

+ CRL.REV.P. 1301/2019 & Crl.M.A. 43043-45/2019 PAWAN KUMAR GUPTA ..... Petitioner Through None.

versus

STATE ..... Respondent

Through Mr.Sanjay Lao, ASC for the State with Mr.K.K. Ghai, APP & Mr.Karon Jeet & Mr.Rai Sharma, Advs.

Insp.Anil Sharma, Insp.Ravi Shanker, SI Deep Chand SI Ranveer.

SinghMr.Jitendra Kr. Jha, Adv. with Ms.Seema Kushwaha, Adv. with

parents of Nirbhaya.

CORAM:

HON'BLE MR. JUSTICE SURESH KUMAR KAIT

J U D G M E N T (ORAL)

1. Vide the present petition filed under section 397 read with section 482 Cr.P.C., the petitioner/convict seeks direction thereby to set aside the impugned order dated 21.12.2018 passed by Ld. ASJ/FTC, Patiala House Court, New Delhi in FIR No.413/2012 registered at Police Station Vasant Vihar for the offences punishable under sections 120-B IPC and

365/366/376(2) (g)/377/307/302 IPC and/or section 396/395/397/201/412 IPC read with section 120-B IPC.

2. It is pertinent to mention here that learned counsel for the petitioner mentioned at 10:30 a.m. and sought adjournment and accordingly, since notice is not issued in the absence of counsel for the State, the matter was adjourned for 24.01.2020 and thereafter, he left the court. Immediately thereafter, Mr.Sanjay Lao, learned Additional Standing Counsel for the State appeared and mentioned that the issue of juvenility which is challenged in the present petition has already been decided by the Hon'ble Supreme Court, thus, the present petition is not maintainable. He further submits that the petitioner is adopting delay tactics and wanted to drag the matter so that execution of the death sentence may not take place, date for which is to be decided very soon.

3. Accordingly, this Court directed Mr.Mahesh Raturi, Assistant Court Master of this Court that let a message be sent to Advocate Shri A.P. Singh, who has filed the present petition. Accordingly, he sent a text message on mobile phone nos.9810368152 and 9210215708 maintained by Shri A.P. Singh, Advocate at 11:27 a.m. Thereafter, in addition to the text message, the above-named ACM called on the aforementioned numbers and his call

was answered once but immediately disconnected and thereafter, his call went unanswered. Thereafter, mail sent on his e-mail address apsingh.adv.off@gmail.com by the ACM to Shri A.P. Singh, Advocate is as under:

"This is Court Master to Justice Suresh Kumar Kait. Your item is listed as Item No.59. Our ACM is calling you informing you that the matter would be taken up immediately but your assistant first talked to our ACM and then disconnecting the phone. It is directed by court to appear at 02:30 p.m. failing which the matter would be taken up for final disposal."

4. Despite, none appeared on behalf of the petitioner till 02:30 p.m. However, keeping in view of the facts and circumstances of this case and urgency, this Court decided to dispose of the matter, in the absence of counsel for the petitioner, who preferred not to appear for the best known to him.

5. It is stated in the present petition that the petitioner filed an application under section 7A Juvenile Justice Board (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'J.J. Act') read with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 (hereinafter referred to as 'J.J. Rules') for age determination of petitioner before the Principle Magistrate/Member, Juvenile Justice Board II, Prayas,

Delhi Gate, New Delhi, from office of the Superintendent Central Jail No. 2, Tihar, New Delhi vide Petition No. F-2/SCJ-2/CJ02/AS(Ct)/2018, however, after hearing by Board/member, the same was transferred to ASJ, Patiala House Court, New Delhi for necessary disposal.

6. It is stated through this petition that Ld. District & Sessions Judge while passing the order dated 21.12.2018, did not pay heed towards the facts of the case and applied the law contrary to the facts, in light of J.J. Act read with Rule 12.

7. Further stated that the order passed by the Ld. District Sessions Judge is not only bad in law but against the principle of natural justice.

8. Facts of the present case, as narrated in the petition, are that petitioner was a juvenile at the time of alleged commission of offence and that the said fact has been verified from the School Leaving Certificate and mark sheet of the petitioner, which was issued in his favour by Gayati Bal Sanskar Shala, Narayanpur, Tanda, Distt. Ambedkar Nagar, U.P., in which the date of birth of the petitioner is 08.10.1996, whereas, date of alleged incident is 16.12.2012. Therefore, petitioner on the date of alleged commission of offence was 16 years 2 month and 8 days. Thus, he was juvenile on the date

of alleged offence. The above-mentioned certificate and mark sheet of the petitioner issued by Gayati Bal Sanskar Shala, Narayanpur, Tanda, Distt. Ambedkar Nagar, U.P has been found to be genuine by the investigating officer in the present case.

9. It is also stated that the petitioner never moved any application under section 7 A of J.J. Act. It is well settled law that there is no prohibition in law for filing such an application before any Court and at any stage. The provision of section 7A of the J.J. Act itself is very clear 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. Accordingly, an application under section 7A of J.J. Act filed before the Trial Court is always maintainable and Trial Court has the jurisdiction to take evidence as provided under the said section and determine the age of the petitioner. To strengthen his submission, the petitioner has relied upon the case of Abdul Razzak vs. State of Uttar Pradesh: 2015 (3) Scale 659.

10. Further stated that the order dated 19.01.2013 passed by learned MM is bad in law as learned MM could not have relied upon the age verification report of the petitioner filed by the investigating officials in the said respect. Moreover, ossification test of petitioner was not conducted by the

investigating officials and no order was passed by the Ld. MM in this regard. Since the petitioner was a juvenile on the date of occurrence of the offence, he is entitled to the benefit of above-stated provisions of the Act.

11. However, the police officials in this case had pressurized the father of petitioner who being an illiterate man, had signed wherever he was asked to and that he otherwise never gave any statement to the police official about the age of his son/petitioner. Pursuant to the Writ Petition(C) No.8889/2011, titled as Court on Its Own Motion vs. Department of Woman and Child Development, National Commission for Protection of Child Rights (NCPCR) father of petitioner had visited Tihar Jail and the accused stated him that he was below 18 years of age at the time of commission of offence. Accordingly, requested that the directions may be passed to the concerned authority to conduct ossification test of the accused, so that question of juvenility may be ascertained/decided to impart justice and to respect the spirit of J.J. Act.

12. The challenge in the present petition is to set aside the order dated 21.12.2018, wherein the petitioner claimed juvenility and submitted that at the time of commission of offence and as per the School Leaving Certificate

issued in his favour by the school mentioned above, which reflects his date of birth as 08.10.1996.

13. The learned APP for the State who appeared before the court below, submitted that the application was not maintainable and a review petition filed on behalf of the petitioner before the Hon'ble Supreme Court seeking review of its judgment confirming the death sentence of the convict/petitioner herein, has been dismissed by narrating therein the same facts which were being asserted before the Trial Court that the date of birth of the convict/petitioner is 08.10.1996 and this date of birth is reflected in the school leaving certificate issued by the school mentioned above.

14. Moreover, on the directions of the Hon'ble Supreme Court, the investigating officials had also verified the said School Leaving Certificate from the concerned school authorities and it was reported that at the time of admission of the petitioner in the school, no birth proof documents had been submitted. Accordingly, the Hon'ble Supreme Court had negated the plea of juvenility taken before it by the petitioner vide its order dated 09.07.2018 and in the said order, it is categorically observed by the Hon'ble Supreme Court that in view of the order dated 10.01.2013 passed by learned MM, no grounds are made out for review of its judgment.

15. After considering the rival contentions of the parties, the court below opined that in view of the order of the Hon'ble Supreme Court dated 09.07.2018, the court has no jurisdiction to determine the age of the petitioner in terms of section 7-A of the J.J. Act. Also specifically recorded that in para 43 of the said order, the Hon'ble Supreme Court has categorically held that the learned Trial Court/learned MM on the basis of the material placed before it, has rightly concluded that the petitioner is not a juvenile on the date of commission of the offence. It was further opined that once the convict has raised the plea of juvenility before the Hon'ble Supreme Court and the said court has rejected the same, it is now not open to the petitioner to file a fresh application under section 7-A of the J.J. Act before any court below.

16. The learned Court further observed that no doubt an application under section 7-A of the J.J. Act can be filed before any court at any stage including a stage after the final disposal of the case by the Hon'ble Supreme Court, however, once a convict has chosen to take the plea of juvenility before the Hon'ble Supreme Court during proceedings and the said plea has been rejected by the Hon'ble Supreme Court, the petitioner cannot be

allowed to re-agitate this plea thereafter by filing an application under section 7-A of J.J. Act before any court.

17. Despite above facts, the present petition has been filed.

18. Mr.Sanjay Lao, learned Additional Standing Counsel for the State has drawn the attention of this Court to the affidavit filed by Mr.Hira Lal Gupta who claimed to be the father (Parokar) of the petitioner in support of the present petition and the said affidavit has been attested by Oath Commissioner, Patiala House Courts, Delhi on 26.03.2019, whereas the present petition has been drafted thereafter and filed on 05.04.2019. The petition continued under objections and counsel for the petitioner did not bother to remove the same and to list the matter before the court. Thus, it seems that counsel for the petitioner was not interested to get the matter listed before the court, so that he may take benefit of the same at the appropriate time.

19. This Court deprecates such practice adopted by the advocate. In addition to above, counsel for the petitioner mentioned the present matter at 10:30 a.m. and sought adjournment and the matter was directed to be fixed on 24.01.2020, without any objection. Thereafter, counsel for the victim

and learned Additional Standing Counsel for the State approached and informed this Court that this is delaying tactics of the petitioner just to avoid the execution of the death sentence awarded by the Trial Court, which has been confirmed by this Court as well as by the Hon'ble Supreme Court. Moreover, the review petitions filed by the petitioner and other co-accused persons have already been dismissed by the Hon'ble Supreme Court. Accordingly, this Court sent a text message to Shri A.P. Singh, Advocate on his mobile and on his e-mail address mentioned above, however, he did not bother to report to the Court nor any reply was sent to the messages explaining his inability to appear.

20. It is also pointed out by learned counsel for the victim that the affidavits supporting the condonation of delay applications are dated 10.12.2019 whereas the affidavit supporting the present petition is of

26.03.2019.

21. It is not in dispute that an Advocate files petition on the instructions of the petitioner. It is also not in dispute that the petitioner is a master of facts, however, it is presumed that the Advocate is well-aware of the law and the procedure. If the Advocate comes to know that any document which is

illegal or not upto the mark, he may suggest the client not to place the same on the judicial file, for which the court may take adverse view.

22. In the present case, nowhere it is mentioned by the Advocate who filed the petition that he pointed out the objection regarding the aforementioned affidavit and his client still insisted to file the document on record. Thus, the Advocate deliberately placed these documents on record just to linger on the final execution of the conviction order passed by the Trial Court.

23. Accordingly, while dismissing the present petition being not maintainable, I hereby impose cost of ₹25,000/- upon Shri A.P. Singh, Advocate who played hide and seek with this Court and did not appear before this Court despite communications. The said amount shall be deposited within one week from today in favour of Nirmal Chhaya, Jail Road, Hari Nagar, New Delhi for the welfare of destitute women and children, failing which Registrar General of this Court is directed to recover the amount from abovementioned advocate as per law.

24. In view of above, the petition is dismissed.

25. In addition to above, the order passed by this court be also sent to Delhi Bar Council for necessary action against the advocate named above.

26. Order dasti under signatures of the Court Master.

27. Pending applications stand dismissed.

(SURESH KUMAR KAIT)

JUDGE

DECEMBER 19, 2019