IN THE SUPREME COURT OF INDIA
By – Naina Sharma
|NAME OF THE CASE
|Pawan Kumar Gupta vs. State of NCT of Delhi
|Petition(criminal) No. 547 of 2020
|Pawan Kumar Gupta
|State of NCT of Delhi
|DATE OF CASE
|20 January 2020
|R. Banumathi, Ashok Bhusan, and A.S. Bopanna
|Constitution of India
|IMPORTANT SECTIONS / ARTICLES
|Article 32 and Article 72 of the Constitution of India, Section 7 A of JJ Act.
In the present case, the appellant Pawan Kumar Gupta filed a special leave petition challenging the order of Delhi high court in the Supreme Court in which the former dismissed the claim of the appellant of juvenility. In the case, the appellant claimed that he was a juvenile at the time of the offense and showed the school-leaving certificate in his favor pleading for mercy however the petition was rejected by Delhi high court, as it referred to the order of the honorable supreme court and pointed out that supreme court had already negative the plea of juvenility after consideration of all documents. Later, the plea of juvenility was raised again in the review petition before the Supreme Court only to be dismissed.
The accused Pawan Kumar Gupta along with the other five accused gang-raped the victim in a moving bus in Delhi on 16 December 2012 the victim died of multiple organ failure later on and the medical report said that she suffered serious injuries in her abdomen and intestines. The crime that took place was beyond human imagination and was very brutal.
On 13 March 2013 the trial court gave capital punishment to all six accused and on 13 September 2013 Delhi high court gave the same verdict and then on 5 May 2017 Supreme Court as well gave the same verdict
In this case, the appellant along with other co-accused was a death row convict. He filed a special leave petition challenging the order of the Delhi high court which dismissed the claim of the petitioner of juvenility. The contention of the appellant was that he was a juvenile at the time of the commission of the offense and presented a school leaving certificate according to which his date of birth was 8 October 1996 and therefore on the date of offense the petitioner was 16 years, 2 months and 8 days old making him a juvenile and asserted that the certificate is found genuine was investigating officials and therefore requested for inquiry in terms of section 7A of Juvenile Justice (care and protection of children) Act, 2000 and according to section 21 of the act no child in conflict with the law shall be sentenced to death.
The petition was dismissed by additional sessions judge on the account of an order of the Supreme Court dated on 9 July 2018 in which it rejected the plea of juvenility while dismissing the review plea the Delhi High Court also rejected the petition and the petitioner moved to Supreme Court however the petition was rejected there as well on 20 January 2020.
Later on, the accused even filed a mercy petition to the president requesting him to change the order of capital punishment into lifetime imprisonment, although the petition was rejected the accused filed the petition again which was rejected a second time as well. Later on, a writ petition was filed before the Supreme Court to challenge the order of the honorable president who rejected the mercy petition twice.
The Supreme Court dismissed the writ petition as well.
FACTS OF THE CASE
The petitioner was the death row convict of the Nirbhaya case along with co-accused. In the Delhi high court, it wasn’t the first time the petitioner Pawan Kumar Gupta had filed the plea of juvenility.
When the case was in the trial court, the plea of juvenility was first raised, the learned trial court vide order dated 7 January 2013 directed the investigating officers to file a report to determine the age of the accused, the age verification has received the petitioner and his parents confirmed the age and had not raised any objection and did not dispute the age of petitioner to be above 18 years on the date and time of the commission of an offense. Hence, the learned metropolitan magistrate rejected the plea of juvenility. This order dated 10 January 2013 was not challenged by the petitioner.
When the criminal appeal was pending in Delhi high court, the petitioner raised the plea of juvenility that they were juvenile at the time of the offense, the high court also rejected the plea on 13 March 2014 and pointed out the order of the metropolitan magistrate which wasn’t challenged, and mentioned about the petitioner’s parents confirming his age.
The plea of juvenility was then raised in a review petition before the Supreme Court and was finally rejected on 20 January 2020 after referring to the judgment of the Delhi High Court and Trial court.
ISSUES RAISED BY COURT
- The special leave petition filed before the Supreme Court by appellant to challenge the order of Delhi high court which dismissed the appellant’s plea of juvenility.
ARGUMENT FROM THE APPELLANT SIDE
The appellant, Pawan Kumar Gupta, challenged the order of the Delhi high court
- The appellant argued that the petitioner’s age at the time of conviction of offence was just 16 and presented a school – leaving certificate.
- MR. A.P Singh, the learned counsel for the petitioner, argued that the high court had passed the order without hearing him.
- The appellant argued that the plea of juvenility can be raised at any stage and showed reliance upon, Ram Narain vs. State of Uttar Pradesh in which , in which claim of juvenility may be raised at any stage even after final disposal of the matter.
- MR. A.P Singh, the learned council, said that the high court has made certain observations against him which are prejudicial to his rights and he was not present at the time when high court passed the order.
- The appellant argued that under section 7 A of JJ Act, if any accused is a juvenile at the time of conviction of offence and a plea of juvenility is raised,the court shall make an inquiry and take such evidence to determine the real age of accused, also the claim of juvenility can be raised at any stage and before any court and at any stage and that should be recognized by court even after disposal of case and such claim shall be determined in terms of the provisions contained in this Act and the rules made there under, even if the juvenile has ceased to be so on or before the date of commencement of this Act, and if the court found the accused to be juvenile, the case should be given to Juvenile board and it will decide further on and the judgment of court have no effect.
- The learned council of petitioner submitted that the petitioner did not have the same intention along with other co- accused and he has been tortured in the prison and also had suffered head injuries and was not given proper treatment so he should not be given death penalty.
ARGUMENTS FROM THE RESPONDENT SIDE
- On the claim that appellant was juvenile at the time of commission of offence, honourable court said that on order dated 10 January 2013 the age verification report had been received ,and the age was confirmed by parents and there was no infirmity in the trial court that appellant along with other co-accused were major.
- The honourable court said that under section 7 A of JJ Act if the plea of juvenility had been rejected by magistrate, high court and supreme court, the petitioner cannot be allowed to register the plea by filling a fresh application.
- On the learned council’s submission that the high court has made certain observations against him which is prejudicial to his rights and he was not present at the time when high court passed the order, the court said that the submission raised is considered but it is not germane to present issue so the appropriate proceedings will be taken separately.
- To the claim regarding the torture and injuries in prison, the council of state Mr. Tushar Mehta denied it and said that according to section72 of Indian constitution the torture cannot be ground for judicial review of executive order.
- ARTICLE 32, Right to constitutional remedies, this article provides the right to move to Supreme Court by appropriate proceedings for the enforcement of the rights conferred in part third of the constitution. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate.
- SECTION 72, Power of President to grant pardons, mercy etc, and to suspend, remit or commute sentences in certain cases
- The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
- in all cases where the punishment or sentence is by a court Martial;
(b) In all cases where the punishment or sentence is for an offense against any law relating to a matter to which the executive power of the Union extends;
(c) In all cases where the sentence is capital punishment.
- SECTION 7 A OF JJ ACT 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 and take such evidence to determine the real age of accused, also the claim of juvenility can be raised at any stage and before any court and at any stage and that should be recognized by court even after final disposal of case and such claim shall be determined in terms of the provisions contained in this Act and the rules made there under, even if the juvenile has ceased to be so on or before the date of commencement of this Act, and if the court found the accused to be juvenile, the case should be given to Juvenile board and it will decide further and give appropriate order and judgment and if there is any order or sentence of court it shall deem to have no effect.
In this case, the supreme court rejected the review petition of a plea of juvenility considering the orders of the metropolitan magistrate and judgment of Delhi high court, and said that the plea was rightly dismissed by a single judge of Delhi high court and the supreme court did not find any ground warranting interference with the impugned order.
The Supreme Court considered all the arguments rose by appellant and as a result, dismissed the special leave petition dated 20 January 2020
The petition was also considered by the trial court and was rejected on the basis of the evidence presented that the petitioner was not a juvenile and on this basis, there was no ground for review of the judgment and when the plea of juvenility is rejected up to the Supreme Court, the petitioner cannot file a fresh application under section 7 A of JJ Act.
And, about the submission of learned counsel Mr. A.P Singh that there were certain observations made against him and he was not present at the time of passing the order by high court the court said that his submissions are considered but as it is not related to present issue, the proceedings will be taken separately about this.
Later the petitioner filed a mercy petition before the president only to be rejected however another mercy petition was filed claiming that the principles of considering mercy petition were not followed challenging the president’s order of rejecting the mercy petition however the Supreme Court dismissed the writ petition.
Fighting for rights, equality, and justice for women has never been easy. Rape is a heinous offense, showing brutality. In this case, I fully agree with the court’s judgment. The Supreme Court rejecting the special leave petition was not mala fide in nature and was completely right as the petitioner failed to prove the rightness of its arguments. Going through the case and studying it, I feel that justice was served by rejecting the plea of juvenility as it was proved that the appellant was not a juvenile. In this case, the accused Pawan Kumar Gupta was the four convicts who did not exhaust all his legal remedies. Plea of juvenility can be raised before any court even after final disposal, but in the case above the accused was not a juvenile and the offense was really very heinous. The case falls in the rarest of rare category and the rejection of the mercy petition was a fair action as well as there was no ground for that.
 [Divya Maini] [Pawan Kumar Gupta vs. State of NCT of Delhi] [Law Foyer]
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