MANOJ KUMAR Vs. STATE OF NCT DELHI

JUDGEMENT

(1.) This application for bail under Section 439 of the Code of Criminal Procedure, 1973 has been moved because the application filed before the learned Additional Sessions Judge was dismissed by an order dated 19.09,2006.

(2.) When the application for bail was argued before the learned Additional Sessions Judge, a plea was taken that the petitioner was a juvenile at the time of the alleged incident. So, the decision of, the bail application rested on two different considerations. The first consideration being as to whether the petitioner was a juvenile. The second consideration being on the merits of the matter, treating the application as a regular application for bail under Section 439 Cr.P.C de hors the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. What has happened is that an enquiry was conducted by the learned Additional Sessions Judge in respect of the certificates submitted by the petitioner which included his school certificate as well as the school certificates of his elder sister to indicate that the petitioner was a juvenile. The enquiry that was directed to be conducted was so conducted for, a period of about one month by the Investing Officer and he went on to verify these school certificates from different schools and submitted his report. According to the learned counsel for the petitioner, the school certificates of the petitioner as well as those of his elder sister stood verified as being genuine. He further submits that if those school certificates are taken to be genuine, then, according to them the petitioner would be a juvenile on the date of the incident, i.e., on 30.07.2003. In the school certificate the date of birth of the petitioner has been shown as 10.04.1986, which would make him about a little over 17 years of age on the date of the incident, which would be covered under the definition, of "juvenile" as given in Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000.

(3.) The learned counsel for the petitioner as well as the learned counsel for the State were heard. A reading of the order passed by the learned Additional Sessions Judge would be necessary in this case because it is not, as indicated above, a simple case of consideration of grant of bail under the provisions of Section 439 Cr.P.C simpliciter. Along with the normal considerations, which a court has to keep in mind for grant of bail, in this case, the added consideration is as to whether the petitioner was a juvenile or not. It is well settled that if the petitioner is regarded as a juvenile, then his bail application would have to be considered in terms of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000. On the other hand, if he is to be regarded as an adult and not a juvenile within the meaning of the said Act, then the consideration for bail would be entirely on the principles of Section 439 Cr.P.C simpliciter. In the order of the learned Additional Sessions Judge, a finding has been returned, rejecting the plea of minority, raised by the petitioner. However, while going into this finding, the learned Additional Sessions Judge has observed that since this plea was raised after three years, when the case was reaching its end, the same could not be entertained. The exact words used by the learned Additional Sessions Judge while rejecting the plea of the petitioner, read as under:- ".............so, at this stage the claim of the applicant with regard to his minority cannot be believed in the absence of any original birth certificate produced contempanerously with the school authorities despite undertaking to produce the same within stipulated period and keeping in view the gravity of the offence and late claim of minority, no benefit can be given to accused at this stage when case is at its final leg and only three witnesses remain to be examined. As such plea of minority is rejected." (emphasis added) Having rejected the plea of minority, the application of the petitioner for bail was considered on merits under Section 439 Cr.P.C and rejected.