* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on 02.09.2011
+ CRL. M. A. 8520//2011 & CRL.A. 878/2009
SURENDER KHARE ... Appellant
- versus -
STATE ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr Arvind Jain with Mr Kuldeep Singh For the Respondent : Mr Pavan Narang CORAM: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL
1. Whether Reporters of local papers may be allowed to
see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
BADAR DURREZ AHMED
1. This is an application under Section 7-A of the Juvenile Justice
(Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘the
said Act’). The prayer of the appellant is that he be declared as a juvenile
within the meaning of Section 2(k) of the said Act and, consequently, that
he be treated as a ‘juvenile in conflict with law’ as defined in Section 2(l)
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 1 of 22
of the said Act. It has also been prayed that consequent upon such
declaration, the appellant, who has been in custody since 11.02.2007, be
released in view of the provisions of the said Act, whereby a juvenile
cannot be detained for a period in excess of three years.
2. The present appeal arises out of the impugned judgment dated
21.03.2009 passed by the learned Additional Sessions Judge, New Delhi in
Sessions Case No. 45/2007 arising out of FIR No. 82/2007 registered at
Police Station R. K. Puram under Sections 302/363/376/201 IPC. The
date of the incident in this case was 06.02.2007. By virtue of the
impugned judgment, the appellant has been convicted under Sections
302/363/376/201 IPC and by a separate order on the point of sentence
dated 21.03.2009 the appellant was sentenced to imprisonment for life in
respect of the offence punishable under Section 302 IPC. A fine of
` 5,000/- was also imposed and in default of payment of the said fine, he
was required to undergo two years imprisonment. He was also sentenced
to rigorous imprisonment for three years in respect of the offence
punishable under Section 363 IPC and a fine of ` 2,000/- was also imposed
on him. In default of payment of which, the appellant was to undergo six
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 2 of 22
months imprisonment. For the offence punishable under Section 376 IPC,
the appellant was also awarded a sentence of life imprisonment with a fine
of ` 5,000/- in default of which he was to undergo two years
imprisonment. As regards the offence punishable under Section 201 IPC,
the sentence awarded to the appellant was of seven years imprisonment
with a fine of ` 2,000/- and in default whereof, he was required to undergo
six months imprisonment.
3. In the present appeal, the appellant had moved an application (Crl.
M. B. 1372/2009), seeking suspension of sentence. The said application
came to be heard by a Division Bench of this Court on 06.05.2010,
wherein, it was urged on behalf of the appellant that he was a juvenile at
the time of the incident. However, this plea of the appellant was rejected
and having regard to the other facts and circumstances of the case also,
this Court did not find it to be a fit case for suspension of sentence and
consequently dismissed the appellant’s application for suspension of
sentence. The order passed by this Court on 06.05.2010 is as under :-
“+ Crl. M. (Bail) No. 1372/2009 in CrI.A.No. 878/2009
Learned counsel for the appellant has, in support of the
present application for suspension of sentence, stressed onlyCRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 3 of 22
on one aspect viz. the appellant was juvenile at the time of
incident. However, he could not controvert the position that
PW9 Dr. Alexander F. Khakha, who had examined the
appellant along with other doctors Dr. Ajay Kumar and Dr.
Vani, opined that the appellant was more than 18 years and
below 19 years of age as on 07.04.2007. This testimony of
PW9 Dr. Alexander F. Khakha has been accepted by the
learned Trial Court, on the basis of which, finding is arrived at
that the appellant was major and not juvenile. Further, having
regard to the facts of this case, we do not find it to be a fit case
for the suspension of sentence.
Application is dismissed.”
Upon reading the said order, it is clear that PW9 Dr Alexander F. Khakha,
who had examined the appellant along with other doctors, namely, Dr
Ajay Kumar and Dr Vani, had opined that the appellant was 18-19 years
and below 19 years of age as on 07.04.2007. It was pointed out by the
court that the testimony of PW9 Dr Alexander F. Khakha had been
accepted by the trial court on the basis of which a finding had been arrived
at that the appellant was an adult and not a juvenile.
4. The learned counsel for the appellant made a four-fold submission
with regard to the order dated 06.05.2010. First of all, he submitted that
the order dated 06.05.2010 merely records the finding recorded by the
Trial Court and cannot be regarded as a finding of this court. Secondly,
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 4 of 22
even if it is assumed that it reflects an opinion of this Court, he contended
that the said order was passed while considering the suspension of
sentence application of the appellant and cannot be treated as a final or
binding order and can only be treated as the court’s prima facie opinion.
Thirdly, it was contended on behalf of the appellant that since it was only a
prima facie consideration, this Court had not gone into the question of
considering the provisions of Rule 12(3)(b) of the Juvenile Justice (Care
and Protection of Children) Rules, 2007 (hereinafter referred to as ‘the
said Rules’). It was submitted that the said Rule 12(3)(b) specifically
stipulated that in case the exact assessment of the age cannot be done, the
Court or the Board or, as the case may be, the Committee, for reasons to
be recorded by them, may, if considered necessary give benefit to the child
or juvenile by considering his/ her age on the lower side within the margin
of one year. It was contended that if the benefit of one year on the lower
side is given, then, even accepting the evidence of PW9 Dr Alexander F.
Khakha, the age of the appellant would be between 17-18 years on the date
of the occurrence, that is, 06.02.2007. Fourthly, he submitted that as per
the opinion of Dr Alexander F. Khakha and the other doctors, the age of
the appellant, as on 07.04.2007, was between 18-19 years. But the date of
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 5 of 22
occurrence was 06.02.2007 which was 2 months prior to the date on which
the said opinion was given i.e., 07.04.2007. Thus, even as per the said
report, without giving the benefit under Rule 12(3)(b), the appellant, on
the date of the incident, that is, 06.02.2007 would be below the age of 18
years. Thus, it was contended that the appellant was a juvenile at the time
of the incident and, therefore, the benefit of the said Act had to be given to
the appellant particularly in view of Section 7-A thereof which enables a
claim of juvenility at any stage even after final disposal of the case and
requires that such claim should be determined in terms of the provisions
contained in the Act and the Rules made thereunder even if the juvenile
had ceased to be so on or before the date of commencement of the said
Act. To substantiate his plea, he referred to Section 7-A of the said Act,
which reads as under :-
“7-A. Procedure to be followed when claim of juvenility
is raised before any court.–
(1) Whenever a claim of juvenility is raised before any
court or a court is of the opinion that an accused person was
a juvenile on the date of commission of the offence, the
court shall make an inquiry, take such evidence as may be
necessary (but not an affidavit) so as to determine the age
of such person, and shall record a finding whether theCRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 6 of 22
person is a juvenile or a child or not, stating his age as
nearly as may be:
Provided that a claim of juvenility may be raised before any
court and it shall be recognised at any stage, even after final
disposal of the case, and such claim shall be determined in
terms of the provisions contained in this Act and the rules
made thereunder, even if the juvenile has ceased to be so on
or before the date of commencement of this Act.
(2) If the court finds a person to be a juvenile on the date
of commission of the offence under sub- section (1), it shall
forward the juvenile to the Board for passing appropriate
order, and the sentence, if any, passed by a court shall be
deemed to have no effect.”
5. There is another complication in this matter. The appellant had also
been arrested in another case being FIR No. 90/2007 registered under
Section 377/506 IPC at Police Station R. K. Puram, wherein the date of
incident was 08.02.2007. The ossification test of the appellant had been
done at RML Hospital and the report dated 24.02.2007 indicated the age of
the appellant to be between 17-18 years. The matter came up before the
Metropolitan Magistrate and on 09.02.2011, when he was to decide as to
whether the appellant was a juvenile on the date of commission of the
offence i.e., 08.02.2007 in the case under FIR No. 90/2007. The learned
Metropolitan Magistrate passed the following order:-
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 7 of 22
“FIR NO. 90/2007
P.S: R.K. Puram
09.02.2011
Present: Ld. APP for the State.
Accused produced from JC.
Dr. Alexender Frenklin, Head of the Medical
Board constituted in Safdarjung Hospital in FIR
NO. 82/07.
1. Vide this order I shall decide whether accused Surender
Khare was juvenile on the day of commission of offence in
this case or not?
2. During the course of trial, accused had moved an
application for transferring the present case to Juvenile Board
on 07.07.09. It is stated in the application that on the basis of
Ossification Test Report of the accused dated 24.02.2007 it
was opined by the concerned Doctors that his age was 17 to 18
years. It is also pertinent to mention here that accused was
convicted in case FIR No. 82/07 and in the said case Medical
Board was constituted, for determination of age of accused.
Copy of the said Medical Board Report is on record. As per
the said report, age of the accused on 07.04.2007 was 18 to 19
years.
3. It is settled law in view of Arnit Das Versus State of
Bihar (2000) 5 SCC 488, a margin of error of two years has to
be given on either side, while determining the age of accused.
4. This court keeping in mind the procedure mentioned in
Section 7 of Juvenile Justice (Care and Protection of
Children) Act, 2007 conducted the enquiry. During the said
inquiry, the court inquired from the accused as to whether
documents as per Rule 12 (3) (a) of Juvenile Justice (Care and
Protection of Children) Act, 2007 can be furnished by him or
not. The accused did not furnish the said documents. Further,
IO concerned also did not furnish the said documents. It isCRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 8 of 22
pertinent to mention here, that neither accused nor the IO
concerned, has furnished, any document, pertaining to, the
date of birth of the accused. The net result is, that, this court
has to come to the conclusion, pertaining to the age of
accused, on the basis of the Ossification Test Report and
Medical Board Report, placed on file, as per Rule 12 (3) (b) of
Juvenile Justice (Care and Protection of Children) Act, 2007,
for determination of age of accused.
5. Date of commission of offence in this case is 08th
February, 2007. As per Ossification Test Report, the age of the
accused was between 17 to 18 years on 24.02.2007. Further,
Medical Report on 07.04.2007 suggests that the age of
accused was 18 to 19 years on the said day of report. In this
regard, court inquired from the Head of the said Medical
Board, who apprise the court, that, it is the day 07.04.2007,
which is to be seen, while appreciating the margin of 18 to 19
years of age, of the accused.
6. There are two reports, pertaining to the age of accused,
in this case. First report, based on Ossification Test,
suggesting that accused was 17 to 18 years of age on
24.02.2007. Necessary corollary, to that report can be, that
accused was below 18 years of age on 08.02.2007. Thus, there
is doubt of twenty days only, with regard to the age of the
accused, as seen from the date of commission of offence, in
this case. The benefit of said doubt, in view of settled position
of law, is given to the accused. More so, where Medical Board
Report dated 07.04.2007 also suggesting that on the day of
said report, accused was 18 to 19 years of age.
7. Keeping in mind the aforesaid discussion, this court
opines, that on the day of commission of offence, in this case,
accused was below 18 years of age.
8. Accused is directed to be sent to Juvenile Board for
further proceedings, as per law.
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 9 of 22
9. Copy of this order be given dasti to the accused for
official purposes.
-sd-
(PRASHANT SHARMA)
M.M.-6, Saket Courts, New Delhi
9-2-2011″
It will be apparent from the above order dated 09.02.2011 that the
Metropolitan Magistrate was faced with two reports pertaining to the age
of the appellant. The first report based on the ossification test suggested
the age of the appellant to be between 17-18 years as on 24.02.2007.
According to the learned Metropolitan Magistrate this implied that the age
of the appellant on the date of the incident, that is, 08.02.2007 was below
18 years. He noted that there was a doubt of 20 days only and that the
benefit of such doubt should go to the appellant particularly because the
Medical Board’s Report of 07.04.2007 also suggested that he was between
18-19 years of age. Consequently, the learned Metropolitan Magistrate
was of the view that on the date of commission of the offence in the case
arising out of FIR No. 90/2007, the appellant was below 18 years of age.
He directed the appellant to be sent to the Juvenile Board for further
proceedings, as per law.
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 10 of 22
6. The Juvenile Justice Board-II, Firozshah Kotla Ground, Delhi Gate,
Delhi took up the matter on 10.02.2011, when it passed the following
order :-
“State Vs. Surender
FIR No. 90/07
PS R. K. Puram
u/s 377/506 1PCCase received by transfer. It be checked and registered as
per rules.
10.02.2011
Present: MsVandana Chauhan, Ld. Substitute APP for the State.
Juvenile with parents.
One of the Members is not sitting presently.
Juvenile has been produced from central jail. Sh. David, Ld.
counsel from DLSA has been asked to assist the party at this
moment.
The juvenile has been declared to be so vide order dt. 09.02.11
of the Ld. Adult Court. The juvenile has remained in custody
for four years as of today. It is stated that while conducting the
enquiry, the Board is to follow the procedure laid down for trial
in summons cases. The ld. counsel refers to Section 258 Cr. P.
C. applicable to summons cases. The provision empowers the
Court to stop proceedings at any stage without pronouncing
judgment for reasons to be recorded. Where such stoppage is
made after evidence of principle witnesses being recorded, the
provisions requires pronouncement of a judgment of acquittal
and release of the offender where applicable.
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 11 of 22
In the present case, the juvenile has been facing the
enquiry since long. He has already undergone the maximum
period for which any child can be detained in special home for
rehabilitation. No fruitful purpose would be served by
continuing the present enquiry. By virtue of the power bestowed
by Section 258 Cr. P. C., the Board deems it fit that the
proceedings in the present enquiry be stopped. As stipulated in
the provision, since principle witnesses have been examined,
the stoppage of the proceedings shall have the effect of acquittal
of the juvenile. He be released if not wanted in any other case.
File be consigned to Record Room.
- sd - - sd -
(Madhu Shukla) (Geetanjli Goel)
Member, JJB-II Principal Magistrate
JJB-II, Delhi Gate,
New Delhi/10.02.2011/H
It is clear that the Juvenile Justice Board had observed that the appellant
had already undergone the maximum period for which any child / juvenile
could be detained in a special home for rehabilitation and that no fruitful
purpose would be served by continuing the enquiry under the said Act.
Consequently, invoking the powers under Section 258 Cr. P.C, the Board
thought it fit that the proceedings in the inquiry pursuant to FIR No. 90/
2007 be stopped. Since the principal witnesses had been examined, the
stoppage of the proceedings, as indicated in Section 258 Cr. P.C itself,
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 12 of 22
would have the effect of acquittal of the juvenile. Consequently, the
appellant was directed to be released, if not wanted in any other case.
7. Thus, on the one hand, we have the present appeal which is pending
before us and in which the appellant has not been regarded as a juvenile by
the trial court. We also have the order dated 06.05.2010 passed by this
Court whereby the appellant’s application for suspension of sentence was
rejected and the Court had observed that the trial court had arrived at the
finding that the appellant was not a juvenile. On the other hand, we have
the proceedings in respect of the FIR No. 90/2007, which has culminated
in the order dated 10.02.2011 of the Juvenile Justice Board, whereby the
appellant has been recognized has a juvenile under the said Act and the
proceedings have been stopped by invoking the powers under Section 258
Cr. P.C. It is also clear from a reading of Section 258 Cr. P.C that when
proceedings are stopped prior to pronouncement of a judgment but after
evidence of the principal witnesses has been recorded, the same would
have the effect of an acquittal.
8. We, therefore, have an anomalous situation where, in respect of one
FIR the appellant has been regarded as a juvenile within the meaning of
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 13 of 22
the said Act, whereas under another FIR, he has not been considered to be
a juvenile. The incidents in connection with the two FIRs are only two
days apart: The date of occurrence in respect of FIR No. 82/2007 is
06.02.2007 and the date of occurrence in respect of FIR No. 90/2007 is
08.02.2007.
9. While this Court in its order dated 06.05.2010 did notice that from
the testimony of PW9 Dr Alexander F. Khakha, the appellant was not a
juvenile on the date of the occurrence in FIR No. 82/2007, we agree with
the learned counsel for the appellant that, first of all, this Court only
recorded what the Trial Court had found and did not itself arrive at that
finding and, secondly, the said observation was, in any event, only a prima
facie one at the stage of consideration of the suspension of sentence
application of the appellant and cannot be regarded as a conclusive
determination of the age of the appellant. That being the position, once an
application under Section 7-A of the said Act has been moved before us
wherein the claim of juvenility has been raised, it is incumbent upon us to
determine such a claim in terms of the provisions contained in the said Act
and the said Rules. The detailed report with regard to the determination of
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 14 of 22
the age of the appellant in the present case i.e., FIR No. 82/2007 has been
exhibited as Exhibit PW9/A and the same has been proved by PW9
Dr Alexander F. Khakha. As per the report Exhibit PW9/A, the age of the
appellant as on 07.04.2007 has been indicated to be 18-19 years. The date
of the incident in the present case was 06.02.2007. Therefore, the age of
the appellant as on the date of the incident would be two months less than
the age given in Exhibit PW9/A which would mean that the appellant
would be 17 years and 10 months old on the lower side. Thus, even if the
benefit of one year margin on the lower side is not given, the appellant
would still have to be regarded as a juvenile on the date of the incident. In
case the benefit of one year is given on the lower side then, clearly, the
appellant would be less than 18 years old on the date of the occurrence. In
either eventuality, the appellant would have to be regarded as a ‘juvenile in
conflict with law’ within the meaning of Section 2(l) of the said Act. Rule
12(3) of the said Rules stipulates that in every case concerning a child or
juvenile in conflict with law, the age determination inquiry shall be
conducted by the Court or the Board or, as the case may be, the Committee
by seeking evidence by obtaining the documents specified in Clause (a),
namely, (i) the matriculation or equivalent certificates, if available; and in
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 15 of 22
the absence whereof; (ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence whereof; (iii) the
birth certificate given by a corporation or a municipal authority or a
panchayat; and in the absence of either (i), (ii) and (iii) of Clause (a), the
medical opinion of a duly constituted Medical Board. In the present case,
there is no evidence concerning the three types of documents mentioned in
Clause (a) of Rule 12(3) of the said Rules. Consequently, it is the medical
opinion of a duly constituted Medical Board, which will have to be
considered for the purposes of declaration of the age of the appellant. No
further medical opinion is necessary inasmuch as Exhibit PW9/A is the
opinion of a duly constituted Medical Board comprising of Dr Alexander
F. Khakha, Dr Ajay Kumar and Dr Vani. It is on the basis of the said
opinion that we have come to the conclusion that the appellant was a
juvenile on the date of the incident. This is also in conformity with the
declaration of juvenility in the case arising out of FIR No. 90/2007.
10. It is clear from the provisions of Section 7-A (2) of the said Act that
if the court finds a person to be a juvenile on the date of commission of the
offence in a proceeding under sub-Section (1) of Section 7-A, it shall
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 16 of 22
forward the juvenile to the Board for passing an appropriate order and the
sentence, if any, passed by a Court shall be deemed to have no effect.
11. Section 6(2) of the said Act stipulates that the powers conferred on
the Board by or under the said Act, may also be exercised by the High
Court and the Court of Session, when the proceedings comes before them
in appeal, revision or otherwise. Thus, instead of forwarding the appellant
to the Board for passing an appropriate order, by virtue of Section 6(2)
read with Section 7-A(2), this Court can pass the appropriate order.
12. The orders that may be passed with regard to a juvenile are indicated
in Section 15 of the Said Act. Section 15(1) provides that where a Board
(in this case this Court) is satisfied on inquiry that a juvenile has
committed an offence, then notwithstanding anything to the contrary
contained in any other law for the time being in force, the Board may, if it
thinks so fit, either (a) allow the juvenile to go home after advice or
admonition; or (b) direct the juvenile to participate in group counselling
and similar activities; or (c) order the juvenile to perform community
service; or (d) order the parent of the juvenile or the juvenile himself to
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 17 of 22
pay a fine, if he is over fourteen years of age and earns money; or (e)
direct the juvenile to be released on probation of good conduct and placed
under the care of any parent, guardian or other fit person, on such parent,
guardian or other fit person executing a bond, with or without surety, as
the Board may require, for the good behaviour and well-being of the
juvenile for any period not exceeding three years; or (f) direct the juvenile
to be released on probation of good conduct and placed under the care of
any fit institution for the good behaviour and well-being of the juvenile for
any period not exceeding three years; or (g) make an order directing the
juvenile to be sent to a special home for a period of three years. It is clear
that the maximum period for which a juvenile can be sent to a special
home is three years in view of Section 15(1)(g) of the said Act.
13. Section 16 (1) also stipulates that notwithstanding anything to the
contrary contained in any other law for the time being in force, no juvenile
in conflict with law shall be sentenced to death or imprisonment for any
terms which may extend to imprisonment for life, or committed to prison
in default of payment of fine or in default of furnishing security. The
proviso to Section 16(1) stipulates that where a juvenile who has attained
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 18 of 22
the age of sixteen years has committed an offence and the Board is
satisfied that the offence committed is so serious in nature or that his
conduct and behaviour have been such that it would not be in his interest
or in the interest of other juveniles in a special home to send him to such
special home and that none of the other measures provided under this Act
is suitable or sufficient, the Board may order the juvenile in conflict with
law to be kept in such ‘place of safety’ and in such manner as it thinks fit
and shall report the case for the order of the State Government. Section
16(2) provides that on the receipt of a report from a Board under sub-
section (1) of Section 16, the State Government may make such
arrangement in respect of the juvenile as it deems proper and may order
such juvenile to be kept under protective custody at such place and on such
conditions as it thinks fit. The proviso to Section 16(2) of the said Act is
very material as it stipulates that the period of detention so ordered shall
not exceed, in any case, the maximum period provided under Section 15 of
the said Act.
14. A reading of Sections 15 and 16 of the said Act makes it clear that
even where the Board is satisfied upon an inquiry that the juvenile has
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 19 of 22
committed an offence, the juvenile can at the most can be sent to a special
home for a period of three years or if the juvenile has committed a very
serious offence and has attained the age of 16 years, he can be kept in a
place of safety under the protective custody of the State. But, this period
of detention cannot exceed the maximum period of three years provided
under Section 15 of the said Act.
15. Coming back to the present case, we find that the appellant has been
found guilty of having committed the offences he was charged with. The
learned counsel for the appellant submitted straightaway that he is not
challenging the conviction but is only claiming benefit of the said Act in
view of the fact that the appellant was a juvenile on the date of
commission of the offence. He submitted that the appellant has already
been in custody for over four years and six months. The maximum
detention of three years that the appellant could have undergone as a
juvenile has already been exceeded and, therefore, he cannot be detained
any further.
16. A plea had been raised on behalf of the learned counsel for the State
that the period of three years which the appellant is seeking to take
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 20 of 22
advantage of in the present proceedings, has already been exhausted in the
proceedings emanating from FIR No. 90/2007, which have been stopped
by the Juvenile Justice Board by virtue of its order dated 10.02.2011.
There are two answers to this contention raised on behalf of the State. The
first is that the order dated 10.02.2011 passed by the Juvenile Justice
Board operates as an acquittal and, therefore, the entire period of detention
can be reckoned for the purposes of the present appeal emanating from
FIR No. 82/2007. Secondly, even if we do not adopt this course, we find
that the appellant would still be entitled to the benefit under the Said Act
inasmuch as he would still have crossed the maximum period of detention
contemplated under the said Act. This will become clear if we examine
the details with regard to his period of custody. The appellant was arrested
in both the cases, that is, FIR No. 82/2007 and FIR No. 90/2007
simultaneously on 11.02.2007. Insofar as the present case is concerned, he
remained in custody throughout the trial period, that is, up to 29.03.2009.
Thus, the period of custody when the appellant was an under-trial works
out to two years, one month and eighteen days. In addition, the appellant
has been in custody post-conviction with effect from 30.03.2009 till date
i.e., 02.09.2011, which works out to two years, five months and two days.
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 21 of 22
Since the under-trial period up to 29.03.2009 would be common in respect
of both the offences, the benefit of set-off can be taken in respect of both
the offences as has been settled by the Supreme Court in the case of State
of Maharashtra v. Najakat: AIR 2001 SC 2255. In addition, the appellant
has already undergone the period of two years five months and two days
post-conviction. Hence, the appellant, in total, in this case, has been in
detention for four years six months and twenty days which is far in excess
of the maximum period of three years permissible under the said Act.
17. In view of the foregoing, while the conviction of the appellant is
sustained inasmuch as the appellant has not challenged the same, the
sentence awarded to him is set aside and since he has already been in
detention for over three years and, therefore, cannot be sent to a Special
Home or ‘place of safety’ for further detention, he is directed to be
released forthwith. This application is allowed and the appeal stands
disposed of accordingly.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
SEPTEMBER 02, 2011
SR
CRL. M. A. 8520//2011 & CRL.A. 878/2009 Page 22 of 22