Mukesh Kumar Yadav v. State

BADAR DURREZ AHMED, J VEENA BIRBAL, J NOVEMBER 29, 2011 kb

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on 29.11.2011 + CRL.M.C. No. 1542/2011 MUKESH KUMAR YADAV … Petitioner versus STATE … Respondent Advocates who appeared in this case: For the Petitioner : Mr S. Azad, Adv. with Mr Habib, Ms Meenu Sharma, Mr Hari Om Gautam, Advs. For the Respondent : Ms Richa Kapoor CORAM: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL BADAR DURREZ AHMED (ORAL) 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) whereby the applicant Mukesh Kumar Yadav is claiming that he was a juvenile within the meaning of section 2 (k) of the said Act on the date of the incident i.e. 03.10.2006. On the basis of the plea of juvenility, the applicant Mukesh Kumar Yadav is seeking the benefit of the provisions of the said Act. In particular, it is the case of the applicant that he has been in custody for over four years but, according to the said Act, a juvenile in conflict with law cannot be kept in detention either in protective custody or in a place of safety, for more than a period of three years, as stipulated in sections 15 and16 of the said Act. 2. This application had initially been filed before a learned Single Judge of this court. The learned counsel for the applicant also states that the applicant has not filed any appeal against the judgment dated 26.04.2010 passed by the learned Additional Sessions Judge in Sessions case No. 8/3/08 which, in turn, arose out of FIR No. 304/06 under section 302/394/201/34 IPC registered at police station Civil Lines. By virtue of the said judgment, the applicant Mukesh Kumar Yadav @ Chhotu along with Vijay Kumar Yadav @ Monu were convicted under sections 302/397/34 IPC and were sentenced to life imprisonment by virtue of the order on sentence dated 19.05.2010. 3. Insofar as the co-convict Vijay Kumar Yadav @ Monu is concerned, he had filed an appeal before this court being Crl. A. No. 978/2010. The present applicant, namely, Mukesh Kumar Yadav, however, as mentioned above, had not filed any appeal against the said judgment and order on the point of sentence. Vijay Kumar Yadav, during the pendency of the appeal before this court, had filed an application being Crl. M.A. No. 18803/2010 in which he claimed that he was a juvenile on the date of the incident. That application came to be heard by this court and was allowed by an order dated 03.02.2011. By virtue of the said order, the co-convict Vijay Kumar Yadav was held to be a juvenile on the date of the incident and he was given the benefit of the said Act. Since the co-convict had already been in custody for over four years which was beyond the maximum period of three years stipulated under the Act, he was directed to be released forthwith. In the course of the hearing, the co-convict Vijay Kumar Yadav had taken the plea that he was not challenging the conviction. 4. In the present case also, the applicant Mukesh Kumar Yadav is not challenging the conviction as he has not filed any appeal, but, is challenging the order on the point of sentence in view of the fact that such an order could not have been passed inasmuch as the applicant was a juvenile on the date of the incident. The present applicant, as mentioned above, has only resorted to filing this application under section 7-A of the said Act claiming the benefit of the same. 5. However, Gurcharan Singh, who is the son of the deceased Charanjeet Kaur, has filed an appeal (Crl. A. No. 1341/2010) under the proviso to section 372 Cr.P.C. seeking enhancement of the sentence from life imprisonment to death sentence. Since that appeal was pending before this court, the learned Single Judge, before whom the present application was initially filed, thought it fit to send the matter to this court, subject to the orders of Hon'ble the Chief Justice, by virtue of his order dated 18.08.2011. That is how the present application is before us