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

O R D E R

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

08.10.1996  and  therefore,  on  the  date  of  alleged  incident  i.e.

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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