Case BriefsHigh Courts

   

Allahabad High Court: In a criminal revision petition filed against the orders passed by the Juvenile Justice Board (‘JJB’) and the Special Judge, (POCSO), declining bail to a Juvenile for offences under Sections 376-AB, 506 of the Penal Code, 1860 and Section 5 or 6 of Protection of Children from Sexual offences Act, 2012 (‘POCSO Act’), Jyotsna Sharma, J. while dismissing the revision petition, said that to prevent ends of justice from being defeated and to achieve the aim and goal of the salutary act, he should be kept in observation home under strict supervision and should be extended to such reformatory services as are available under the scheme of the Act.

In the case at hand, the victim (9 years) used to go to the residence of the accused to study religious scriptures. On 05.12.2020 when she returned from there, she told her mother that the accused has sexually assaulted her and threatened her not to inform the police. On her medical examination, injuries on her private part were found. In her statement recorded under sections 161 and 164 Code of Criminal Procedure, 1973, she narrated the same story and corroborated the allegations as contained in the first information report.

The revisionist contended that the proviso to Section 12 of the Juvenile Justice Act, 2015 and broader principles of law as applicable in the matters of bail to the juveniles have been ignored by JJB as well as the Special Judge as bail has been declined based on the nature of offence and the board as well as Special Judge have treated the case as falling within the exceptional circumstances as defined in proviso to Section 12(1) of the Juvenile Justice Act, 2015 without having any material before them.

The Court relied on Om Prakash v. State of Rajasthan, (2012) 5 SCC 201, wherein the Court commanded the attention of the courts for taking a cautious approach where the accused under the guise of plea of being a minor attempted to take statutory shelter as provided under the Juvenile Justice Act, 2015, and said that although the observation of Supreme Court came in the background of the fact that the evidence about the age was of doubtful nature, however, the nature of the crime as being a material fact was brought into focus.

Further, the Court took note of Mangesh Rajbhar v. State of U.P. (2018) 2 ACR 1941, wherein it was held that “the bail prayer of the juvenile revisionist must be considered on the surrounding facts and circumstances and merely by declaration of being a juvenile does not entitle a juvenile in conflict with law to be released on bail as a matter of right” and of ‘X’ Minor v. State of U.P. Criminal Revision No. 1195 of 2022, wherein the Court took a view that the gravity of the offence as well as the merits of the matter may be of ample significance when the Court has to form an opinion whether case is one falling within the exceptions as envisaged under the proviso to Section 12(1) of the Juvenile Justice Act, 2015.

The Court said that in this case a minor girl went as usual for religious teachings from a person, who in our society is supposed to be having even higher than usual moral standards of conduct. A person in whom she might have trusted as she would trust her own parents, sexually assaulted her and caused shock and trauma to her as well as her family. Further, this kind of violent sexual assault is an indicator that accused needs counselling by psychiatrist not only for his own betterment but also for the health of society. He needs to be extended services of reformatory and rehabilitatory nature so that he can move without posing danger to himself as well as to public and so that he can be brought back to mainstream.

The Court examined the social investigation report and said that the accused had not been to regular school and was uneducated and belonged to a very poor family. Thus, the Court opined that he must be given that kind of atmosphere as is required for his healthy physical and psychological growth. Further, prima-facie, it appears that he is in real need of intensive counselling, and he cannot be risked falling into the same environs of which he is the product.

[X v. State of U.P., 2022 SCC OnLine All 771, decided on 22-11-2022]


Advocates who appeared in this case :

Counsel for Revisionist:- Advocate Brij Raj Singh;

Counsel for Opposite Party:- Government Advocate.


*Apoorva Goel, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

Allahabad High Court: In a criminal revision petition filed under Section 102 of the Juvenile Justice Act challenging the order passed by Juvenile Justice Board (‘JJB’), and challenging the order dated passed by Special Judge (POCSO) affirming the order of the JJB and declining bail to the juvenile for offences under sections 376-AB of the Penal Code, 1860 (‘IPC’) and Section – 5(m) or 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), Jyotsna Sharma, J. has observed that bail to a juvenile is not compulsory in all cases and can be denied for certain reasons, thus seeing the gravity of the offence, upheld the said orders.

In this case, it was alleged by the victim’s mother that when her daughter, aged about 6 years, was playing outside her house, the accused, aged about 15 years, lured her on the pretext of giving toffee and took her behind a hut and committed rape on her. In the medical examination about 1 cm tear was found in her fourchette and she was bleeding. As the accused was a juvenile, the matter was brought before the Juvenile Justice Board. Further, in the age determination inquiry his age was found to be about 12 years and 10 months and in the social investigation report, it was observed by the District Probation Officer that the boy requires strict control and supervision. Thus, JJB declined bail to the juvenile.

The Court took note of Section 12(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 that deals with the matters of bail to the juvenile, and observed that, it is clear that the law does not say that once a person is found a juvenile, he should be released on bail notwithstanding other facts and circumstances of the matter, thus the bail can also be denied if juvenile’s release, in the opinion of the Court, would defeat the ends of justice.

It was also observed that the phrase ‘ends of justice’ is undoubtedly a meaningful phrase bringing within its sweep many factors including, the nature of the crime, the merits of the matter and other facts and circumstances which cannot be passed over by the Court.

The Court viewed that the Juvenile Justice Act, 2015 (‘JJ Act’) differentiates between offences falling into three categories, i.e., petty, serious and heinous offences and that the cases falling in different categories based on the said classification have been dealt with differently. Moreover, the Courts as well as the legislature have been conscious of the need to deal with the matters of heinous offences in a more sensitive manner.

The Court opined that whenever a Court is exercising powers under the provisions of JJ Act, 2015, the general principles as enumerated in Section 3 of the Act must be kept in mind as guiding factor. Further, all decisions regarding the child should be based on primary consideration of the best interest of the child, considering the demands of justice of the other side.

The Court noted that the scheme of the Act has a twin approach, i.e., reformatory as well as retributive to a certain extent, and while dealing with grant or refusal of bail, the ends of justice may compel the Court to strike a balance between competing and often conflicting demands of justice of both the sides, i.e., the accused and the victim. Thus, here the nature of the crime, the methodology adopted, the manner of commission and the evidence available may assume ample significance. Moreover, the aim and object of this act, is to achieve not only the welfare and betterment of a juvenile by extending to him services of reformatory nature, so that he can be brought back to mainstream of society as a person of healthy mind, but also to address the concerns of society at large at this stage, and this aim cannot be achieved unless a holistic view of the matter is taken.

The Court further opined that to give meaning to the phrase ‘ends of justice’, the matter of bail must be seen literally through a prism having three angles, i.e., firstly, the angle of welfare and the best interest of the child, secondly, the demands of justice to the victim and her family and thirdly, the concerns of society at large; and in the end, the court must depend upon its own robust sense of justice.

Thus, it was observed that “in this case a girl of very tender age was put to violent sexual assault by a boy of merely 15 years and she was enticed in a well-planned manner by offering sweets. Further, the trauma and shock caused to an innocent girl, who had no understanding and inkling of the act with which she had to go through and the resentment, which was caused to the members of her family, can easily be understood” Thus, the Court dismissed the criminal revision petition.

[X v. State of UP, Criminal Revision No. – 1036 of 2022, decided on 21-10-2022]


Advocates who appeared in this case:

Counsel for Revisionist:- Advocate Satendra Singh;

Counsel for Opposite Party:- Government Advocate Mukesh Kumar Maurya.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: In a case filed by a father (‘petitioner’) seeking for setting aside the order passed by the Juvenile Justice Board (‘JJB’) directing for medical examination of the accused child which ascertained his age to be 21 years, a division bench of Revati Mohite Dere and Madhav J Jamdar JJ., set aside the impugned order as the age was ascertained flouting the provisions stated under Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’). The age of the boy was found to be of 16 years (on the date of incident) as per the Aadhar card produced before the police, which was maliciously hidden as the father refused to pay a bribe to the police official concerned.

The petitioner was taken into custody for the alleged offences punishable under Sections 302, 307, 397, 326, 143, 145, 147, 148, 149, 504, 506(II), 34 of Penal Code, 1860 r/w Sections 4 and 25 of the Arms Act, 1959 and Section 37(1)(A) r/w 135 of the Maharashtra Police Act, 1951.

Counsel for the petitioner submitted that respondent 3- Samadhan Wagh, a police official, malafidely did not produce the documents, before the Juvenile Justice Board and Metropolitan Magistrate. The same was handed over by the petitioner’s father to show that his son was a Juvenile at the relevant time to the police official but Rs. 50000 was demanged by Wagh which was he refused to pay .

It was further submitted that as per Section 94 of JJ Act, only in the absence of any document to show the juvenility of a person, that the age is to be determined by conducting an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. However, in the present case, the Juvenile Justice Board ordered for medical examination without any document verification, which was further upheld by Metropolitan Magistrate.

The Court noted that the documents relied upon, in particular, the Aadhar Card was prepared in 2011 and as such, the petitioner or his father could not have anticipated any impending case against the petitioner. The Juvenile Justice Board also should have sought documents from respondent 3 before resorting to clause (3) of Section 94 of the JJ Act.

The Court further noted that from the documents which are annexed to the petition, the date of birth of the petitioner appears to be 04-06-2005, which, prima-facie shows that at the relevant time, petitioner was a juvenile.

The Court thus sets aside the impugned orders dated 26-08-2021 and 8-11- 2021. finding non-compliance with the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The Court further directed the investigation in the matter to be handed from respondent 3 to the senior inspector of police and placed relevant documents before JJB so that appropriate orders could be passed.

The Court also directed Superintendent, Thane Central Prison to shift the petitioner to the Child Observation Home, Dongri. The directions were given to Additional Commissioner of Police, North Region, Mumbai to conduct an inquiry with respect to the allegations made against respondent 3 which will be heard by ACP only.

[Vikas Ramji Yadav v. State of Maharashtra, 2022 SCC OnLine Bom 2299, decided on 07-09-2022]


Advocates who appeared in this case :

Mr. Vashishtha Arora i/b Mr. Vipul M. Yadav for the Petitioner

Ms. S. D. Shinde, A.P.P for the Respondent—State

Sr. P.I Mr. Jeevan Kharat, from Dindoshi Police Station was present

P.I Mr. Samadhan Wagh from Dindoshi Police Station was present


*Arunima Bose, Editorial Assistant has put this report together.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: In deciding the instant bail application filed by a juvenile applicant by invoking Section 12 of Juvenile Justice (Care and Protection of Children) Act, 2015, the Bench of Bharati Dangre, J., while invoking the principles of repatriation and restoration, granted bail to the applicant. It was observed that since the applicant had positively responded to the rehabilitative efforts during his stay in the Observation Home, he therefore deserves to be reunited and restored with his family and it would be in his best interest so that he can develop himself with full potential.

Facts of the Case: The applicant along with five adults, were arrested for gang-raping a 7-year-old girl and were charged under Sections 376-D, 376(1)(n), 354, 354-D, 114, 509, 506 of IPC and Sections 6, 8 and 12 of the Protection of Children from Sexual Offences Act (POCSO Act). Upon the applicant’s arrest, he was produced before the Juvenile Justice Board constituted under the Juvenile Justice Act, 2015 and was placed in the Observation Home.

The applicant filed two bail applications before the Juvenile Justice Board, but both the applications were rejected. The Board observed that the adult accused persons are the family members of the applicant, and if the applicant is released on bail, he may again come in contact with these people or other people of similar criminal tendencies. The Board held that the applicant’s safety can only be ensured if he is inside the Observation Home.

Contentions of the Applicant:

  • The counsels for the applicant contended that the juvenile applicant belongs to a lower- middle socio-economic background, with his father working as a watchman and his mother being a homemaker. It was also submitted that the applicant had passed his 10th Standard but could not further pursue his education due to financial issues and mother’s illness.

  • It was contended that the applicant’s involvement in the crime is doubtful as the prosecution hasn’t been able to establish the same.

  • The applicant’s side also presented his physical and psychological status report by the Child Guidance Clinic wherein the Probation Officer stated that the applicant is not a danger to the society and has shown good potential to excel, if right kind of opportunities, guidance, support and education are made available to him. It was stated in the report that the applicant has been deprived of his education during his long detention in the Observation Home and the same has caused disruption to his life.

  • The applicant also drew the attention of the Court towards the objectives of Juvenile Justice Act, 2015, which considers a child as distinct from an adult, who has to undergo through the normal procedure on being accused of an offence. It was submitted that the principle of repatriation and restoration which has been recognized as an essential principle by the legislature through the 2015 Act has been violated.

  • It was also submitted that the prolonged detention of the applicant is hampering his progress and also affecting his mental health as it has caused him undue anxiety and that his further stay in the Observation Home is against his interest.

Contentions of the Respondent:

  • Vehemently opposing the bail application, the respondents submitted that the offence that has been committed i.e., gang-rape of a 7-year-old, the crime is heinous in nature. Thus, the applicant does not deserve his release on bail.

  • It was further argued that if released on bail, the applicant would pose danger to the victim.

  • The respondents also pointed out that the Special Judge under the POCSO Act also rejected the application filed by the applicant under Section 439 of CrPC by recording that the accusations faced by the applicant are grave in nature and it is a case of gang rape- an aggravated sexual assault.

Observations and Decision: Perusing the facts and contentions presented, the Court made the following observations-

  • The Court observed that the Juvenile Justice Act, 2015 was enacted while noting that the justice system applicable for adults is not suitable to be applied to a child or a juvenile. Therefore, a new method was evolved to try juveniles, so as to protect their interest and also insulate them from being exposed to vagaries of police and the normal criminal system. The Court also took into account Articles 15, 39 (e) and (f), 45 and 47 of the Constitution and United Nations Convention on the Rights of Child and perused in detail the Juvenile Justice Act, 2015.

  • The Court noted that, “Section 12 (1) of the 2015 Act, makes a provision to the exclusion of anything contained in the CrPC or any other law for the time being in force and is a special provision for a child who is alleged to have committed a bailable or non-bailable offence”. The only embargo is in the proviso to Section 12 stating that where there are reasonable grounds for believing that the release is likely to bring that person into association with a known criminal or expose the said person to moral, physical and psychological danger or the person’s release would defeat the ends of justice. “In the scheme of enactment, it can be seen that Section 12 contains an imperative mandate to release a child on bail, when he is apprehended or detained in connection with an offence and it is a special provision, which stands to the exclusion of the CrPC”. It was pointed out by the Court that Juvenile Justice Act, 2015 is a special statute providing a special procedure to protect children in need and children in conflict with the law. Thus, it is important that while construing its provisions, the core objective of this legislation must not be forgotten.

  • The Court noted the Report presented by the Probation Officer vis-a-vis the applicant’s physical and psychological parameters and observed that the applicant does not fulfill the criteria stated in the embargo contained in Section 12. It was observed that the Report does not reflect him as a desperado or a person misfit in the society, and it recommends that if an opportunity is given to the applicant, he will be a better person.

    “The accusations faced by the applicant are undisputedly serious, but he must also derive the benefit of being a ‘child’, despite he is being tried as an adult and the benefit of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 cannot be denied to him”.

  • Stating that the applicant’s education has suffered due to his detention and the same could not be allowed, the Court granted bail to the applicant.

[Sandeep Ayodhya Prasad Rajak v. State of Maharashtra, 2022 SCC OnLine Bom 1825, decided on 22-08-2022]


Advocates who appeared in this case :

Maharukh Adenwalla, Advocate, for the Applicant;

A.A.Takalkar, A.P.P., Advocate, for the State/Respondent;

Saveena Bedi, Advocate, for the Intervenor.


*Sucheta Sarkar, Editorial Assistant has prepared this brief.

Madhya Pradesh High Court
Case BriefsHigh Courts

   

Madhya Pradesh High Court: Satyendra Kumar Singh, J. in a recent case affirmed that Trial Court does not have power to determine the age of the applicant and this power is vested only with the JJ Board. This petition was filed against the order passed by Additional Special Judge whereby application was filed u/Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 [the Act of 2015] requesting to refer the matter to Juvenile Justice Board for determination of applicant’s age was rejected.

Applicant alongwith other co-accused persons was facing criminal trial for the offences punishable u/Section 8C/15 of NDPS Act. After filing of charge-sheet till framing of charges, applicant was not represented by any one and on 17-05-2020, his counsel filed vakalatnama and found applicant’s age below 18 years. Hence, on 18-05-2020, counsel for the applicant moved an application u/Section 94 of the Act of 2015 by which prayer is made for referring the matter to Juvenile Justice Board for determination of his age as well as for his trial.

The Trial Court had directed the respondent to verify the documents filed by the applicant in support of his aforesaid application and after receiving the verification report on 28-05-2021 rejected applicant’s application on the ground that school scholar register entry with regard to date of birth of the applicant is doubtful and secondly, as per date of birth entry of his Aadhar Card, his date of birth is 24-03-2000 and as per the said date of birth, applicant was major at the time of incident.

Counsel for the applicant submitted that trial Court had committed an error of law while not taking into consideration the application filed by the applicant u/S 94 of the Act of 2015. He further submitted that exclusive jurisdiction for determination of the age of applicant lies with the Juvenile Justice Board constituted under the Act of 2015.

The Court explained that u/Section 94 of the Act of 2015, the presumption is raised that when a person is brought before the Juvenile Justice Board (‘JJ Board') or the Child Welfare Committee (‘Committee') and the said person is a child as nearly as may be and proceed to inquiry u/Section 14 or Section 36 as the case may be, without waiting for further confirmation of the age. But where the said Board or the Committee had reasonable grounds for doubt regarding whether the person brought before it is a child or not, the JJ Board or the Committee must undertake the process of age determination by seeking evidence.

The Court relying on Sanjay Kumar Gupta v. State of U.P., 2019 (12) SCC 370, Rishipal Singh Solanki v. State of Uttar Pradesh, 2021 SCC Oline SC 1079 concluded that Trial Court did not have power to determine the age of the applicant and this power is vested only with the JJ Board constituted under the Act of 2015.

The petition was allowed setting aside the impugned order stating that it was not in consonance with the provisions of the Act, of 2015. The matter was remanded back to the Trial Court.

[Shriram Rawat v. State of Madhya Pradesh, Criminal Revision No. 1439 of 2021, decided on 17-08-2022]


Advocates who appeared in this case :

R.R. Trivedi, Advocate, for the Petitioner;

Shashwat Seth, Advocate, for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: Hemant Chandangoudar, J.,  allowed the petition and quashed the impugned proceedings initiated against alleged offence under Section 80 of Juvenile Justice (Care and Protection of Children) Act, 2015.

The facts of the case are such that a charge sheet was filed alleging that accused 1 gave birth to twin babies and accused 3, who was married and issue less through accused 4, intended to take the daughter of accused 1 on adoption. Accused 1 and 2 agreed for giving adoption to accused 3. Accused 1 delivered twin babies and one of the daughters had breathing problem and the said daughter was taken by accused 3 by registering the name of the mother as Jareena Begum and thereafter took the daughter of accused 1 and 2 on adoption by executing a deed on Rs.20/- stamp paper. The Magistrate took cognizance of the offence punishable under Section 80 of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short `Act’) and issued summons to the petitioners. Assailing this, present petition was filed.

Counsel for the petitioners submitted that the child who is alleged to have been taken by adoption by accused 3 is not an orphan, abandoned or surrendered child so as to constitute the commission of offence punishable under Section 80 of the Act. Hence it was submitted that the charge sheet filed against the petitioners – accused is without any substance.

Counsel for respondent submitted that accused 3 having taken adoption of the child without following the provisions or procedure as provided under the Act have committed the offence punishable under Section 80 of the Act

The Court observed that a person is stated to have committed an offence, if he/she takes a child on adoption who is an orphan, abandoned or surrendered child without following the provisions or procedures as provided under the Act. It was further observed that in the present case, the allegation is that accused 3 has taken a child in adoption born to accused 1 and 2 who is not an abandoned child or orphan or surrendered child as defined under Sections 2(1), 2(42) and 2(60) of the Act.

The Court held “In the absence of any declaration that the child is deserted by his biological or adoptive parents or guardians, the filing of the charge sheet is also without any substance.”

[Banu Begum v. State of Karnataka, Criminal Petition No. 100659 of 2021, decided on 07-04-2022]


Appearances

For petitioners- Mr. M B Gundawade

For respondents- Mr. Ramesh Chigari


Arunima Bose, Editorial Assistant has reported this brief.

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: M.G. Sewlikar, J., held that, in terms of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Juvenile Justice Board has to make assessment into heinous offences to determine whether CCL is to be tried as an adult.

Present revision was preferred by the State of Maharashtra against the decision by the Additional Sessions Judge confirming the order of the Juvenile Justice Board, Aurangabad dismissing the application by its order.

Factual Matrix


An Officer-in-charge of the Anti-Terrorist Squad Unit had received secret information in that some persons had engaged themselves in terrorist activities in Mumbra and Aurangabad areas. Further, he secretly obtained the name, addresses and cell phone numbers of the suspects.

The said suspects were put under surveillance and from the information received, it was revealed that one Mohsin Khan and his associates had established a group “Ummat E Mohammadia” and some trusted and like-minded persons were made members of the group.

It was suspected that the suspects would carry out some terrorist activities in Mumbai. Hence four teams were formed.

On the arrest of accused 1, it was revealed that one Zaman had made some poisonous substance which was to be added in food at a function or in the water so as to cause mass murder. The said substance was handed over to Salman and Zaman.

As per the prosecution, accused 1 to 9 were indoctrinated with the ideology of terrorist organization ISIS. The said accused persons hatched a criminal conspiracy to carry out the terrorist attack with the use of a poisonous substance and explosive substance in Mumbai, Aurangabad and other places.

In view of the above an offence came to be registered under Section 120-B of the Penal Code 1860 read with Sections 18, 20, 38 of the Unlawful Activities (Prevention) Act, 1976 read with Section 135 of the Maharashtra Police Act.

Respondent being a child in conflict with the law on his arrest was produced before the Juvenile Justice Board.

The applicant State filed an application for preliminary assessment of CCL and the CCL be transferred to Children’s Court for trial as an adult. On hearing both sides, JJB rejected the application.

On being aggrieved with the above order, present revision was filed.

Analysis, Law and Decision


In terms of Section 15 of the JJ Act, JJB has to make an assessment into heinous offences to determine whether CCL is to be tried as an adult.

Whether the CCL has committed a heinous offence?

The sine qua non for trying the CCL as an adult for committing heinous offence is minimum punishment of seven years.

Bench noted that the JJB held that none of the Sections 18,20, 38 and 39 provided minimum punishment for seven years.

Therefore, it was clear that the JJB did not commit any error in rejecting the application.

Hence, the revision application was devoid of any substance and the same was accordingly dismissed. [State of Maharashtra v. Shadab Tabarak Khan, 2022 SCC OnLine Bom 571, decided on 16-3-2022]


Advocates before the Court:

Special Public Prosecutor for applicant: Mangesh R. Jadhav

Advocate for Respondent: S.Y. Firdose h/f Md. Imran Khan M. Ismail Khan

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: R.C. Khulbe, J. granted bail in a criminal revision petition moved against the order of Juvenile Justice Board (JJB), Dehradun as well as a judgment by Addl. Sessions Judge (POCSO)/FTC, Dehradun against the petitioner.

The bail application was rejected by JJB on sole ground that he may again commit an offence. The Court after bare reading of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 held that “the Courts below had erred in law in not releasing the juvenile on bail.” Grandfather of the Juvenile was asked to furnish two sureties and personal bond of Rs 50,000 and he was given the custody of the juvenile. The condition of bail was subject to appearance of juvenile and his grandfather every month before the JJB. Court also clarified that in case of violation of these conditions, the State will be at liberty to approach the JJB for cancellation of bail.

In the view of above conditions, the criminal revision was allowed.[Ayaan Ali v. State of Uttarakhand, 2022 SCC OnLine Utt 75, decided on 16-02-2022]


Appearances by:

Mr Aditya Singh, counsel holding brief of Mr Rajat Mittal counsel for the revisionist.

Mr V.K. Jemini, Dy.A.G. for the State.


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Upholding the concurrent findings of High Court as well as Sessions Court and Juvenile Justice Board, the Division Bench comprising of Dhananjaya Y Chandrachud and B.V. Nagarathna*, JJ., passed a detailed verdict to guide determination of juvenility. Rejecting the contention of the appellant that the signatures of respondent on the admission forms of class 1 and class 8 (on the basis of which DoB was recorded for admission in matriculation) were identical and it could not be so on the admission form of class 1 as the respondent was only four and half years old when he was admitted to class 1, the Bench stated,

“Even if the documents seeking admission to class 1 and class 8 were discredited or eschewed, the fact remained that the mark-sheet pertaining to the matriculation supported the presumption that the respondent was less than 16 years of age on the date of incident.”

The respondent, one Nishant Solanki along with other accused was alleged to have attacked upon the appellant and his family causing serious injuries as well as death of appellant’s father and uncle. It had been stated that the accused were carrying a Farsa (battle-axe), lathi and balkaties (caneknives) and attacked the complainant/appellant and the members of his family. The respondent prayed before the Juvenile Justice Board, Baghpat to be declared as a juvenile delinquent, which was allowed by the Board.

The grievance of the appellant was that the respondent had been accused of committing grave offences under sections 147, 148, 149, 323, 307, 302 and 34 of the IPC along with other co-accused, but his claim of juvenility was erroneously allowed by the Board which was later on sustained by the appellate court as well as the Allahabad High Court.

Presumption for determining Juvenility

An application claiming juvenility could be made either before the Court or the JJ Board. When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies. Under Section 94 of JJ Act, if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence

“The degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).”

On the basis of the documents mentioned section 94 of JJ Act, 2015 a presumption of juvenility may be raised.  The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side, and if two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. The Bench added,

“Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.”

Further, when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Evidence Act, 1882 inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

Determination of Age by the JJ Board

The Certificate-cum-Marks Sheet of the High School issued by the Board of High School and Intermediate Examination U.P., was produced stating that the date of birth of respondent as 25-09-2004. Noticeably, when the respondent sought admission in class 1 no document in respect of birth was given and the date of birth was mentioned orally. The respondent continued his education there till class 8th and the transfer certificate recorded his date of birth as 25-09-2004 and the same was entered in the school records of class 9th. The Principal of the school first attended by the respondent stated that the respondent was a little above four years of age at the time of admission in class 1.

According to the JJ Board, it is only in the absence of the matriculation certificate that determination of age had to be by ossification test or any other latest medical age determination test. The date of the incident was 05-05-2020. Hence, as per the date of birth recorded in matriculation certificate, the respondent was 15 years and 8 months of age as on the date of the incident.

Observations and Findings

Rejecting the contention raised by the appellant that the signatures of respondent on the admission forms of class 1 and class 8 were identical and it could not be so on the admission form of class 1 as the respondent  was only four and half years old when he was admitted to class 1, the Bench stated that in the absence of any rebuttal evidence, even if the documents seeking admission to class 1 and class 8 were discredited or eschewed, the fact remained that the mark-sheet pertaining to the matriculation supported the presumption that the respondent was less than 16 years of age on the date of incident.

Differentiating the instant case from the case of Sanjeev Kumar Gupta v. State of Uttar Pradesh, (2019) 12 SCC 370, wherein it was observed that that the date of birth reflected in the matriculation certificate could not be accepted as authentic or credible, the Bench observed that in the Sanjeev Kumar’s case the records maintained by the CBSE were purely on the basis of the final list of the students forwarded by the Senior Secondary School where the second respondent therein had studied from class 5 to 10, while there was clear and unimpeachable evidence of date of birth recorded by the school attended by the respondent till class 4 and which was supported by voluntary disclosure made by the accused therein while obtaining both, Aadhaar Card and driving license. Therefore, the Bench stated that in Sanjeev Kumar’s case, there was clear and unimpeachable evidence of date of birth which had been recorded in the records of the school which the respondent therein had attended till class 4, however, in the instant case in the absence of there being any evidence to negate the date of birth recorded in matriculation certificate same, the criminal revision deserved to be dismissed.

Conclusion

Considering the absence of any other document indicating the date of birth of the respondent contrary to what had been indicated in the matriculation certificate, therefore the Bench denied to differ from the order of the High court which sustained the judgment of the District & Sessions Court as well as of the JJ Board.

[Rishipal Singh Solanki v. State Of Uttar Pradesh, 2021 SCC OnLine SC 1079, decided on 18-11-2021]


Kamini Sharma, Editorial Assistant has put this report together


Appearance by:

For the Appellant: Anupam Dwivedi, counsel

For the State of U.P.: Sharan Thakur, Additional Advocate General

For the Respondents: Saurabh Trivedi, counsel

*Judgment by: Justice B.V. Nagarathna

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: R. Narayana Pisharadi, J., held that passive submission made by the victim under unavoidable circumstances as she had no other option is not consent. While clarifying the difference between consent and submission, the Bench expressed,

“Merely for the reason that the victim was in love with the accused, it cannot be presumed that she had given consent for sexual intercourse.”

The appellant-accused had challenged the judgment of the Trial Court by which the accused was convicted for the offences under Sections 366A and 376 of the Penal Code, 1860 and under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The prosecution case was that the victim girl, who was aged 17 years, had eloped with the accused, a bus cleaner in which the victim used to travel often. The victim contended that she was in love with the accused, who had induced her to elope with him and threatened her of committing suicide in front of her house if she did not go with him. The accused took her to Mysore; they stayed in a lodge where the accused committed forcible sexual intercourse with her. The medical report revealed that there was no evidence of recent sexual intercourse but there was evidence of past penetration.

Consent

“True, the victim has admitted that she was in love with the accused and that she knew that eloping with him would create problems. But, it does not mean that it was with her consent that the accused her to Mysore. Her evidence shows that he made a threat that if she did not go with him, he would commit suicide in front of her house.”

Considering the statement of the victim that the accused had forcibly undressed her and that when she cried he closed her mouth with his hand, the Bench opined that the testimony of the victim clearly showed that it was against her will and without her consent that the accused committed sexual intercourse with her. The Bench added,

“Even if it is assumed that, on subsequent occasions, she did not resist the act of the accused, it cannot be found that it was with her consent that the accused had sexual intercourse with her. It can only be found that it was a passive submission made by the victim girl under unavoidable circumstances as she had no other option.”

Although, the prosecution failed to prove that the victim was minor at the time of the incident, the Bench opined that even if it was assumed that the victim was more than 18 years of age, it could not be a ground to hold that she was a consenting party to the sexual intercourse as helplessness in the face of inevitable compulsion could not be considered to be consent as understood in law.

Claim of Juvenility

The accused had produced the extract of the school admission register kept in the school in which the accused first attended, to substantiate his claim of juvenility. According to the said document, the date of birth of the accused was 12-08-1996, hence on the date of the incident the accused had completed seventeen years of age and he was below eighteen years. Therefore, as on the date of the alleged incident, the accused had completed seventeen years of age and he was below eighteen years.

Relying on Raju v. State of Haryana, (2019) 14 SCC 401, wherein the Supreme Court had ordered, “seeing that the appellant has already spent 6 years in imprisonment, whereas the maximum period for which a juvenile may be sent to a special home is only 3 years as per Section 15(1)(g) of the 2000 Act, we direct that the appellant be released from custody forthwith, if he is not required to be detained in connection with any other case.”, the Bench held that since as per Section 15 of the JJ Act, 2000, the maximum punishment that can be imposed upon a juvenile is to direct that he shall be sent to a Special Home for a period not exceeding three years and the accused had already undergone imprisonment for more than six years, the accused need not be directed to appear before the J.J. Board for receiving sentence.

Conclusion

Consequently, the appeal was allowed in part and it was ordered as follows:

  1. Conviction of the accused for the offence punishable under Section 3 read with Section 4 of the POCSO Act was set aside.
  2. Conviction of the accused for the offence punishable under Section 366A of IPC was altered to conviction under Section 366.
  3. Conviction of the accused for the offence punishable under Section 376 of IPC was is affirmed.
  4. The sentence of imprisonment and fine imposed on the accused was set aside.

The accused was directed to be released from custody. [Syam Sivan v. State of Kerala, 2021 SCC OnLine Ker 4307, decided on 17-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Advocate George Renoy, State Brief

For the State: Advocate Ambika Devi S, Spl. PP

Punjab and Haryana High Court
Case Briefs

Punjab and Haryana High Court: Rajesh Bhardwaj, J., held that plea for anticipatory bail by a juvenile is not maintainable in law as there is no concept of arrest on apprehension regarding children in conflict with the law.

The petitioner, a juvenile had filed the instant petition seeking anticipatory bail with regard to FIR lodged against him under Section 8 of Protection of Children from Sexual Offence Act, 2012 (POCSO), contending that he had been falsely implicated in case.

Whether petition under Section 438 of CrPC maintainable on behalf of a juvenile?

The moot question before the Court was the issue of the maintainability of the petition on behalf of a juvenile under Section 438 of CrPC. Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015 Section 10 deals with the apprehension of the child alleged to be in conflict with the law and Section 12 pertains to bail to a person who is apparently a child alleged to be in conflict with the law.

The provisions of Section 12 would show that when any child in conflict with law is brought before a Board, such person notwithstanding anything contained in the CrPC or in any other law for the time being in force, be released on bail with or without surety; whereas the provisions of Section 438 CrPC are enumerated for granting the bail to the person who has apprehension of the arrest. The Bench stated that

“A reading of provisions of Section 438 CrPC vis-a-vis of relevant provisions of the Act would show that a juvenile cannot be arrested and thus, there is no question of apprehension of his arrest. Hence, the petition under Section 438 CrPC is not maintainable in case of a juvenile.”

Reliance was placed by the Court on the decision of Madras High Court in K. Vignesh v. State of T.N., 2017 SCC OnLine Mad 28442, wherein it had been held that,

“Had it been the intention of the Legislature, that a police officer should be empowered to arrest a child in conflict with law, the Legislature would have very well used the expression ‘arrest’ instead of using the expression ‘apprehend’ in Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2015…the Legislature has, thus, consciously omitted to use the expression ‘arrest’ in Section 10 of the Act, which means that the Legislature did not want to empower the police to arrest a child in conflict with law. Therefore, the Legislature has empowered the police simply to apprehend a child in conflict with law and immediately, without any delay, cause his production before the Juvenile Justice Board…the proviso to Section 10 of the Act makes it very clear that in no case a child alleged to be in conflict with law shall be placed in a police lock-up or lodged in a jail. The Board has been obligated to send the child either to an observation home or a place of safety.”

Opining that a careful perusal of statutory provisions and the judicial precedents would show the intention of legislature in safeguarding the welfare of juvenile as apparent by Section 12, wherein it mandates the production of the child before the Board, the Bench stated that,

“The underlying purpose of the scheme appears to be that legislature wanted the personal interaction of the juvenile with the Board before arriving at a decision regarding his bail.” 

On the other hand, the Bench observed that such a provision has no place under Section 438 CrPC and hence safeguard provided to a juvenile is automatically bypassed. Even otherwise the Act mandates the provision of granting the bail to a juvenile in a bailable or non-bailable offence notwithstanding anything contained in CrPC. Thus, it was held that the petition under Section 438 CrPC on behalf of the juvenile is not maintainable; therefore the petition was dismissed with the liberty to the petitioner to seek remedy in accordance with law.[X v. State of Haryana, CRM-M-21406 of 2021, decided on 05-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Manoj Tanwar, Advocate

For the State of Haryana: Manish Bansal, DAG, Haryana

Case BriefsHigh Courts

Madhya Pradesh High Court: Subodh Abhyankar, J., dismissed a Criminal Revision filed by the petitioner under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The allegation against the petitioner was that he is aged around 15 years old and on 16-01-2021 at around 10.30 AM he had committed rape of a minor girl aged around 10-11 years old whereby she was left bleeding for a prolonged period of time. In her statement to the Police, she has also stated that around three days earlier also, the petitioner had committed rape on her.

Counsel for the petitioner submitted that the Courts have erred in not considering the fact that none of ingredients of the proviso to Section 12 of the Act of 2015 are satisfied in the present case, as there is no evidence or material on record that if the petitioner is released on bail, he is likely to come in contact with known criminal or in the event of hisrelease, he would expose himself to moral, psychological or physical danger; and his release on bail, would defeat the ends of justice.

Court found that so far as the age of the petitioner was concerned, it was 15 years whereas the prosecutrix in the present case was 10 years 4 months and 2 days. Her MLC revealed that she was initially treated at District Hospital, Jhabua on 16-01-2021, wherein it was noted that she was bleeding from her vagina since afternoon and had changed 5-6 pads since then. Later, she was transferred to MY Hospital, Indore for further treatment, from where she was discharged on 21-01-2021 wherein her exploration and repair of posterior vaginal wall operation was also performed.

The Court after perusing the records opined that it was not a fit case to exercise its discretion to release the petitioner on bail. The conduct of the petitioner clearly reveals that he committed the aforesaid offence with full consciousness and it cannot be said that it was committed in ignorance. The Court stated that, “An offence of rape, being carnal in nature, cannot be committed unless a person has the specific knowledge of the same. Thus, his release, in the considered opinion of this court, would defeat the ends of justice.”

The Court while dismissing the petition observed that,

“The Legislature has still not learnt any lesson from the case of Nirbhaya which is reported as Mukesh v. State NCT of Delhi, (2017) 6 SCC 1 as the age of a child is still kept below 16 years in heinous offences under s.15 of the Act of 2015 giving a free hand to the delinquents under the age of 16 years to commit heinous offences. Thus, apparently, despite committing a heinous offence, the petitioner would be tried as a juvenile only, because he is less than 16 years old as provided under Section 15 Act of 2015. Apparently, the present law to deal with such cases is totally inadequate and ill equipped and this Court really wonders as to how many more Nirbhayas’ sacrifice would be required to shake the conscious of the lawmakers of this Country.”

[Sunil (Juvenile) v. State of M.P., Criminal Revision No.853/2021, decided on 25-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Appearance:

Counsel for the petitioner: Mr Vikas Rathi

Panel Lawyer for the respondent / State of M.P.: Ms Poorva Mahajan

Op EdsOP. ED.

Introduction

Juvenile justice system (JJS) and the mental health of juveniles involved are inherently related. Children in conflict with law and children in need of care and protection are more likely to be prone to mental health and substance related problems. On the corollary, children having mental health or substance related problems are more likely to come in contact with the Juvenile justice system. Juvenile Justice (Care and Protection of Children) Act 2015[1] focus on the developmental well-being of the children coming in contact with the JJS, including their psychological well-being, and focus on their social reintegration and rehabilitation.

Being the future of any society, and a vulnerable section of the same, children deserve laws that focus on their well-being and protection. India does have many child centric laws such as Child and Adolescent Labour (Prohibition and Regulation) Act, 1986[2], the Juvenile Justice (Care and Protection of Children) Act, 2000[3], the Prohibition of Child Marriage Act, 2006[4], the Right of Children to Free and Compulsory Education Act, 2009[5], and the Protection of Children from Sexual Offences Act, 2012[6]. Among these acts, the JJ Act deals with children in conflict with law and children in need of care and protection.

Studies show that at some juvenile justice contact points, as many as 70% of the youth have diagnosable mental health problems. The commoner ones include externalising disorders like attention deficit hyperactivity disorder (ADHD), substance abuse disorders, or internalising disorders like anxiety disorders and mood disorders. Externalising disorders increase the chances of youth delinquency, violence and recidivism[7], while early identification and treatment result in decreased rate of delinquency and better social integration.[8]

This paper attempts to highlight the relevant sections of the Juvenile Justice (Care and Protection of Children) Act, that deal with mental health aspect of the children and the potential role that mental health professionals can play, along with challenges and opportunities involved.

Factors responsible for juvenile delinquency

The intensity and severity of juvenile offences are generally determined by the social, economic and cultural conditions prevailing in the country. The causes of such behaviour, like all other crimes, find their roots in complex psychological, social and economic factors. Clinical studies have found emotional and mental maladjustments arising out of disorganised family problems to be a common cause behind such behaviour.[9] The causes for delinquent behaviour among juveniles are found at all stages of society, including society itself, social institutions, social groups and organisations and interpersonal relations.

Factors associated with youth crimes and delinquent behaviour are strikingly similar across nations. An international study shows that family disadvantage leads to educational disadvantage, which leads to underachievement, economic marginality, social education, and mental stress.[10]

A juvenile delinquent is the outcome of unwholesome environment congenial for the development of his faculties in conformity with social expectations. Such behaviour often occurs in social settings where the norms for accepted behaviour have broken down and the rules that deter people from committing socially unacceptable acts become irrelevant to certain members of the society. Thus, they response to the traumatising and destructive changes in their surrounding by rebellious behaviour and criminal activities.[11]

The social factors also play an important role in persuading a child towards delinquent behaviour. These factors include the behaviour of the people that the child interacts with during a certain age, like neglect, favoritism, bullying, or cruelty of parents, school teachers, or peers. This results in inferiority complex, fear of opening up, fear of apprehension, and shame at school, home, or among friends.[12] Delinquent behaviour can also be attributed to lack of education, or poor performance at school. The present education system and the society place undue importance in training the intellect of children rather than their emotional and mental well-being. This may result in neglect towards social expectations and association with people involved in criminal behaviour.[13] Another reason that can be attributed to delinquent behaviour is socio-economic background. Socio-economic instability is often linked to low income which may lead the young to resort to criminal behaviour. The present-day developing societies are dynamic and self-explanatory in its complexity followed by never-ending changes. The socio-economic change and the crises in those societies often uproot people from their traditional communities and alienate them as they lose access to their former social support networks.[14]

Television and media have popularised heroes who promote justice through physical elimination of wrongdoers. The impact of media and video games on the impressionable minds of young individuals and children is a popular debate. Children who watch violence tend to react aggressively to triggering situations. The media brings violence in individual’s nature in various ways. Firstly, movies that portray violence can excite young people and the aggression can be transferred to daily lives of impressionable children. Secondly, television shows daily violent acts by parents and peers, which leads children to believe that the acts are normal and part of routine lives. Thirdly, the violence on media and games are fake and surreal. They are also romanticised. Wounds bleed less and the agonising pain is rarely shown. So, the consequences of violent behaviour seem negligible. It causes children to believe violence is desirable and preferred way of establishing justice and acquiring what they desire.[15]

The importance of family and family background is an increasingly recognised tool for detecting deviant behaviour in young people. Children who receive adequate parental care and support are less likely to indulge in deviant activities compared to children neglected by their parents and families. Dysfunctional family environment like inadequate parental care and support, weak internal linkage and integration, and premature autonomy are closely related to juvenile delinquency. Children belonging to underprivileged families who face the risk of social exclusion are over presented as possible offenders. This has a negative impact on their mentality and attitude. Criminalisation of families is also a possible factor. Families involved in crime would push their younger members towards similar behaviour.

Thus, it is evident that the various possible factors leading to delinquent behaviour, in some way or the other, have an effect on the psychology of the child. Thus, emphasising the importance of the assessment and care of mental health of children in contact with the juvenile justice system.

Juvenile justice system and mental health

India enacted the Juvenile Justice Act, 1986 for the first time in 1986[16], which prohibited sentencing children in conflict with law to prison under any circumstances.[17] Later, being a signatory to United Nations Convention on the Rights of the Child, India ratified the treaty by passing the Juvenile Justice (Care and Protection of Children) Act, 2000, incorporating the provisions of the convention for the protection of children in conflict with law and children in need of care and protection. The Act adopts child friendly approach in the adjudication and disposition of matters, to ensure proper care, protection and treatment by catering to their development needs. Further, it mandates the ultimate rehabilitation of children by setting up various institutions for the purpose.

The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2010[18] omits the provision from the Act that ruled for “separate treatment of juveniles or children suffering from leprosy, sexually transmitted disease, hepatitis B, tuberculosis, and children with unsound minds”. It regulates the power of the competent authority of special homes to move a child from a special home to a special facility, like a mental health institution.

 Further, the Juvenile Justice (Care and Protection of Children) Act, 2015[19] defines child in need of care and protection as one “who is mentally ill or mentally or physically challenged or suffering from a terminal disease and having no support system (parents or guardians) if found so by the Juvenile Justice Board (Board) or the Child Welfare Committee (CWC).”[20] Moreover, the Act also states that juveniles should be given access to rehabilitation and reintegration services by institutions registered under this Act. It also mandates for these institutions to provide mental health services, including counselling focused on the needs of the child.[21] The Act also lays down the provision for moving a child from special homes to treatment centres for mental illness and substance abuse related issues.[22]

Mental health aspects of children involved with juvenile justice system

The mental health of children in conflict law and their delinquent behaviour are interrelated. This could be due to their shared biopsychological vulnerabilities, or the fact that one condition aggravates the other. Not addressing or avoiding these interrelated problems may lead to repetition of offence. Hence, addressing and acknowledging the mental health of such children, and other related issues, is of utmost importance. Mental health professionals can significantly contribute in this process, in the preventive, therapeutic, and rehabilitative fronts, apart from their advisory role in the juvenile justice system. The Act has taken this fact under consideration and provided that no social worker shall be appointed to the Juvenile Justice Board[23] or Child Welfare Committee[24] unless they have experience in education, or are practising professionals with a degree in child psychology, psychiatry, sociology, or law.

The Act mandates that in case of children ages between 16 to 18 years, accused of committing a heinous crime, a preliminary assessment should be ordered for their mental and physical capacity.[25] The Board shall take help of experienced psychologists, psychosocial workers, or other experts in the field. It has been found that children under the age of 14 years, coming in contact with law, are more prone to having mental health issues, as opposed to older children.[26] Since mental health professionals are frequently called upon as experts in such cases, their role becomes extremely important, especially when such cases get highlighted in the media, and the court procedure is likely to be influenced by such factors.

The Act mandates that confidentiality should be maintained while dealing with children in conflict with, or likely to be in conflict with, law, to avoid litigation.[27] This is in conformity to the latest Mental Healthcare Act, 2017, which also emphasises maintaining privacy and confidentiality of a person suffering from a mental illness.[28]

Rehabilitative and reintegrative services form the core of the JJ Act. It mandates the child care institutions to have mental health and deaddiction facilities for the children.[29] The Act also provides that as and when required, a child may also be shifted to a mental health facility or a deaddiction center, for necessary treatment. What is needed is to form a comprehensive post-discharge plan to ensure continuity of care, to avoid worsening of the psychological or behavioural problem, as the case may be.

Challenges in meeting the mental health needs

Although there are major gaps between practice and policies for juveniles who run afoul of the law, India has made a promising beginning by adopting progressive legislation, especially the Juvenile Justice Act, 2015 and the community can provide this vulnerable, yet difficult population a chance at an easier present and brighter future.

The Juvenile Justice Act provides that the mental health and well-being of the children be given utmost importance, in reality, this mandate does not seem to achieve actual practice. Lack of understanding about child psychology and deviant behaviour among social workers, and staff of child care institutions are some of the limiting factors. Lack of training and knowledge on the part of these staff lead to harsh behaviour towards the children, which may lead to worsening of the problem.

There are also incidences of children from the LGBTQ+ communities and children with gender identity issues coming in contact with the juvenile justice system. There is a lack of proper training and sensitisation among the staff of the child care institutions about the problems faced by such children, as they are often prone to bullying by the senior inmates and the workers, which increases the risks of mental health problems.

Although the Juvenile Justice Act requires regular and basic mental health facilities, including specific need-based counselling sessions, many institutions involved in the system run without regular and qualified mental health professionals, or have irregular visits from professionals who are volunteers with NGOs offering supplementary services like health and recreation. A study conducted by National Commission for Protection of Child Rights reflected that children in child care homes face various mental traumas like bullying by senior inmates, sexual abuse, overcrowding, etc. Therefore, there should be regular monitoring of child care homes to keep a check on the treatment of children and the implementation of the provisions of the Act.

Prejudice and stigma are a major challenge in the reintegration and rehabilitation of such children. The society often sees these children as threatening, or possessing a bad character. This leads to marginalisation and lack of social integration, which may cause stress, inferiority complex, or other mental health related issues in the children.

Lack of awareness regarding mental health issues and the stigma around it is a hurdle for early intervention. This results in delay in seeking help till the juvenile comes in contact with the juvenile justice system. It is imperative to spread awareness about mental health and the importance of mental health care.

Conclusion and recommendations

A standardised curriculum should be developed for persons dealing with children encountering the juvenile justice system, which should include educating the personnel about child psychology, different psychological and biological needs of children in need of care and protection and children in conflict with law, as well as sensitisation and awareness about the LGBTQ+ community.

Childcare institutions should be made better equipped by appointment of mental health professionals on a regular basis. Further, regular auditing of the childcare institutions for ensuring proper functioning, availability of qualified staff and mental health professionals and conformity with the provisions of the laws in force should be done. The authority running the childcare institution should be made accountable and answerable for any lack thereof.

Counselling of the juveniles at the time of their entry at the institutions should be made a norm. The counselling should deal with the reason why they are being kept in the institutions, the possible situations that they might face during their stay at the institution, example bullying by senior inmate, and the authority that they should contact in such cases. Additionally, a simple screening mechanism for detection of mental disorders should be developed that would be easy to use by the staff at the childcare institutions with proper training, without the help of mental health professionals. This would enable the institutions to assess the mental state of the children at entry level and provide the required help.

Job and livelihood oriented vocational training should be imparted to the children, tailored to their skills and interests. Digital learning and technology driven courses should be preferred in order to make their reintegration in the society and make it easier for them to find an appropriate job upon their release.

Training and counselling sessions with prior inmates with regard to substance use problems, or other issues, should be available. Since inmates often share similar socio-economic backgrounds and experiences inside the juvenile justice system, it would be easier for the children to talk to and relate to the prior inmates and help in better dealing with the environment in the system.

Awareness about psychological and socio-cultural determinants and the relation between delinquent behaviour and mental health issues should be spread so as to reduce the stigma and prejudice against child offenders that is prevalent in the society so as to ease the process of social reintegration and rehabilitation.


BA LLB (Hons.), National University of Study and Research in Law, Ranchi, e-mail: shipra8997@gmail.com.

[1] <http://www.scconline.com/DocumentLink/nAUMUPN2>.

[2] <http://www.scconline.com/DocumentLink/Zs3BeR9b>

[3] <http://www.scconline.com/DocumentLink/nAUMUPN2>.

[4] <http://www.scconline.com/DocumentLink/Isn4k0z4>.

[5] <http://www.scconline.com/DocumentLink/c51TsRvC>.

[6] <http://www.scconline.com/DocumentLink/slbHee3H>.

[7] Fazel, S., Doll, H., Långström, N., Mental Disorders Among Adolescents in Juvenile Detention and Correctional Facilities: A Systematic Review and Metaregression Analysis of 25 Surveys, 47 J Am Acad Child Adolesc Psychiatry (2008).

[8] Shufelt, J.L., Cocozza, J.J., Youth with mental health disorders in the juvenile justice system: Results from a multi-state prevalence study, Delmar, NY: National Center for Mental Health and Juvenile Justice (2006), <https://www.sprc.org/resources-programs/youth-mental-health-disorders-juvenile-justice-system-results-multi-state>.

[9] F. Ershad, Juvenile Delinquency and Slum Area: A Critical Outlook on Chicago School with Specific Reference to Iran, 38 Indian Journal of Criminology) (2003).

[10] Friday, Paul C., Juvenile Delinquency: An International Perspective, 1-3 Indian Journal of Criminology (2006).

[11] Sanyukta Singh, Juvenile Justice in India: A Critique, J54 Cr. LJ, Vol. 109 (August 2003).

[12] Mohd. Wasim Ali, Juvenile Delinquency in India: A Socio-Legal Study, SCC OnLine 23 ALJ (2015-2016) 258. <http://www.scconline.com/DocumentLink/a0w48qgk>

[13] J.P.S. Sirohi, Criminology and Penology 384 (Allahabad Law Agency 2004).

[14] F. Ershad, Juvenile Delinquency and Slum Area: A Critical Outlook on Chicago School with Specific Reference to Iran, 38 Indian Journal of Criminology) (2003).

[15] Friday, Paul C., Juvenile Delinquency: An International Perspective, 1-3 Indian Journal of Criminology (2006).

[16] <http://www.scconline.com/DocumentLink/vf1D7306>.

[17] Sagar, R., Patra, B.N., Gupta, P., Gaps Analysis in Mental Health Care Services in Child Care Institutions: A Delhi Based Study, National Commission for Protection of Child Rights (2016), <https://ncpcrgovin/showfilephplid=1283>.

[18] The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2010.  <http://www.scconline.com/DocumentLink/myCrg1l0>

[19] Ibid.

[20] S. 2 (14)(iv), the Juvenile Justice (Care and Protection of Children) Act, 2015.

[21] S. 18, the Juvenile Justice (Care and Protection of Children) Act, 2015 

[22] S. 96, the Juvenile Justice (Care and Protection of Children) Act, 2015 

[23] S. 4(3), the Juvenile Justice (Care and Protection of Children) Act, 2015

[24] S. 27(4) and S. 4(3), the Juvenile Justice (Care and Protection of Children) Act, 2015

[25] S. 15, the Juvenile Justice (Care and Protection of Children) Act, 2015 

[26] James G. Scott, Childhood Mental and Development Disorders, 4 Mental, Neurological, and Substance Use Disorders: Disease Control Priorities, <https://www.ncbi.nlm.nih.gov/books/NBK361938/>.

[27] S. 3(xi), the Juvenile Justice (Care and Protection of Children) Act, 2015 

[28] S. 23, the Mental Healthcare Act, 2017 

[29] S. 53, the Juvenile Justice (Care and Protection of Children) Act, 2015

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Jai Shree Thakur J., set aside the impugned order and allowed the appeal.

The facts of the case are such that he was arrested in FIR No.94 registered under Sections 307, 376, 457, 511 Penal Code, 1860 i.e. IPC at Police Station Division No.7, Ludhiana. He moved an application for grant of bail before Juvenile Justice Board, but the same was dismissed. The appeal preferred by him before the Additional Sessions Judge, Ludhiana was also dismissed. The present revision petition has been filed to challenge the impugned order dated 22.06.2020 passed by the Juvenile Justice Board, Ludhiana, whereby, the bail to the present petitioner aged 15 years (who has already been declared juvenile) has been declined and the same has been affirmed by Additional Sessions Judge, Ludhiana vide judgment dated 07.08.2020.

Counsel for the petitioners submitted that the argument forwarded by the respondents that  if released on bail he would come in close proximity to her as he resides near to the house of the complainant; and he may be exposed to moral and psychological danger and also his release would defeat the ends of justice, whereas, no such finding was recorded as to how he will come in contact with criminals and how he will be exposed to moral, physical or psychological danger, or that his release would defeat the ends of justice. It was also submitted that the petitioner is a student and he is not a previous convict nor is associated in any kind of un-social or criminal activities. It is further argued that nothing has been brought on record so as to show that the petitioner is having any criminal background or any criminal case has been registered against any of his family member.

Counsel for the respondents opposed the grant of bail to the petitioner on the ground of heinousness and seriousness of offence.

The court observed that from a bare reading of the provisions of Section 12 of the Juvenile Justice Act, 2015 i.e. J.J. Act, it appears that the intention of the legislature is to grant bail to the juvenile irrespective of the nature or gravity of the offence alleged to have been committed by him, and bail can be declined only in such cases where reasonable grounds are there for believing that the release is likely to bring the juvenile into association of any known criminal or expose him to moral, physical or psychological danger, or that his release would defeat the ends of justice. Meaning thereby, as per the aforesaid provision, a juvenile can be denied the concession of bail, if any of the three contingencies specified under Section 12 (1) of the J.J. Act is available.

 Issue regarding orders declining bail to juveniles

The Court observed that bail of a child in conflict with law cannot be rejected in a routine manner and if the bail is declined, a reasoned order has to be given by the Board. A juvenile has to be released on bail mandatorily unless and until the exceptions carved out in proviso to Section 12 (1) of the J.J. Act, 2015 itself are made out. The exceptions are noted being:-

  1. a) a reasonable ground for believing that the release is likely to bring the juvenile into association with any known criminal;
  2. b) his release is likely to expose him to any moral, physical or psychological danger; and
  3. c) his release would defeat the ends of justice.

The Court thus held that “I am of the view that both the Courts below have not satisfied the requirement of provisions of Section 12(1) of the J.J. Act and without adhering to material on record, the bail application of the petitioner has been declined. Petitioner is in custody since the date of filing of the FIR i.e. 17.05.2020 and no purpose will be served, in case, he is kept in custody. The impugned orders are not sustainable in the eyes of law and as such, are liable to be set aside.”

 In view of the above, impugned order was set aside and appeal allowed.[Vishvas v. State of Punjab, CRR No. 53 of 2021, decided on 08-02-2021]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In a bid to clear the air over the applicability of and the Juvenile Justice (Care and Protection of Children) Act, 2015 in a case where the accused had committed an offence in the year 1981 and had pleaded juvenility, the bench of SA Nazeer and Sanjiv Khanna, JJ elaborately discussed the schemes of the Juvenile Justice Act, 1986, the Juvenile Justice (Care And Protection Of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Act, 2015 and concluded that

  • all proceedings in respect of a juvenile pending in any court on the date on which the 2000 Act came into force shall continue before that court as if the 2000 Act had not been passed; and
  • 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.

BACKGROUND OF THE CASE


The accused was sentenced to life imprisonment for commission of the offence under Section 302 read with section 34. There was, however, the question of juvenility involved and the Trial Court held that the accused was not a juvenile as per the Juvenile Justice Act, 1986 (1986 Act) as he was more than 16 year of age on the date of commission of the offence i.e. 11.12.1981.

The conundrum in the present case was in light of the definition of ‘juvenile’ under the 1986 Act, which was below sixteen years in case of a boy and below eighteen years in case of a girl on the date the boy or girl is brought for first appearance before the court or the competent authority, whereas the Juvenile Justice (Care And Protection Of Children) Act, 2000 (2000 Act), does not distinguish between a boy or girl and a person under the age of eighteen years is a juvenile. Further, under the 2000 Act, the age on the date of commission of the offence is the determining factor.


APPLICABILITY OF THE 2000 ACT


Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 verdict and its effect

The Constitution Bench in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 held

  • the 2000 Act would be applicable in a pending proceeding instituted under the 1986 Act in any court or authority, if the person had not completed eighteen years of age as on 1st April 2001, when the 2000 Act came into force.
  • the reckoning date for the determination of the age of the juvenile is the date of the offence and not the date when he is produced before the authority or in a court.
  • Consequently, the 2000 Act would have prospective effect and not retrospective effect except in cases where the person had not completed the age of eighteen years on the date of commencement of the 2000 Act. Other pending cases would be governed by the provisions of the 1986 Act.

Scheme of the 2000 Act

  • Legislative intent clearly expressed states that all proceedings in respect of a juvenile pending in any court on the date on which the 2000 Act came into force shall continue before that court as if the 2000 Act had not been passed.
  • If the court comes to a finding that a juvenile has committed the offence, it shall record the finding but instead of passing an order of sentence, forward the juvenile to the Juvenile Justice Board (Board) which shall then pass orders in accordance with the provisions of the 2000 Act, as if the Board itself had conducted an inquiry and was satisfied that the juvenile had committed the offence.
  • The proviso states that the Board, for any adequate and special reasons, can review the case and pass appropriate order in the interest of the juvenile.
  • The expression ‘all pending cases’ in the Explanation to Section 20 includes not only trial but even subsequent proceedings by way of appeal, revision etc. or any other criminal proceedings. Thus, in respect of pending cases, Section 20 authoritatively commands that the court must at any stage, even post the judgment by the trial court when the matter is pending in appeal, revision or otherwise, consider and decide upon the question of juvenility.
  • Juvenility is determined by the age on the date of commission of the offence. The factum that the juvenile was an adult on the date of enforcement of the 2000 Act or subsequently had attained adulthood would not matter.
  • As per Section 64, where a juvenile in conflict with law is undergoing any sentence of imprisonment at the commencement of the 2000 Act, he shall, in lieu of undergoing the sentence, be sent to a special home or be kept in a fit institution in such manner as the state government thinks fit for the remainder of the period of sentence. However, such sentence shall not exceed the maximum period provided in Section 15 of the 2000 Act. The statute overrules and modifies the sentence awarded, even in decided cases.

Applicability of the 2000 Act to the facts of the case

In light of the aforementioned legal position, the Court noticed that it can, at this stage, decide and determine the question of juvenility of the accused, notwithstanding the fact that he was not entitled to the benefit of being a juvenile on the date of the offence, under the 1986 Act, and had turned an adult when the 2000 Act was enforced.

“As the accused was less than 18 years of age on the date of commission of offence on 11.12.1981, he is entitled to be treated as a juvenile and be given benefit as per the 2000 Act.”


INTERPRETATION OF SECTION 25 OF THE 2015 ACT


Section 25 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is a non-obstante clause which applies to all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of the 2015 Act, that is, 31st December 2015. It states that the pending proceedings shall be continued in that Board or court as if the 2015 Act had not been passed.

  • The use of the word ‘any’ before the board or court in Section 25 of the 2015 Act, would mean and include any court including the appellate court or a court before which the revision petition is pending.
  • The word ‘found’ in the phrase ‘a child alleged or found to be in conflict with law’ is used in past-tense and would apply in cases where an order/judgment has been passed.
  • The word ‘alleged’ would refer to those proceedings where no final order has been passed and the matter is sub-judice.
  • The expression ‘court’ is not restricted to mean a civil court which has the jurisdiction in the matter of ‘adoption’ and ‘guardianship’ in terms of clause (23) to Section 2 of the 2015 Act . The definition clause is applicable unless the context otherwise requires.

“In case of Section 25, the legislature is obviously not referring to a civil court as the section deals with pending proceedings in respect of a child alleged or found to be in conflict with law, which cannot be proceedings pending before a civil court. Since the Act of 2015 protects and affirms the application of the 2000 Act to all pending proceedings, we do not read that the legislative intent of the 2015 Act is to the contrary, that is, to apply the 2015 Act to all pending proceedings.”


APPLICABILITY OF THE 2000 ACT VIS-À-VIS THE 2015 ACT


The Court noticed that in light of Section 6 of the General Clauses Act read with Section 25 of the 2015 Act, an accused cannot be denied his right to be treated as a juvenile when he was less than eighteen years of age at the time of commission of the offence, a right which he acquired and has fructified under the 2000 Act, even if the offence was committed prior to enforcement of the 2000 Act on 01.04.2001.

It, hence, concluded,

“In terms of Section 25 of the 2015 Act, 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.”


CONCLUSION ON FACTS


While the Court upheld the conviction of the accused, it set aside the sentence of life imprisonment and remitted the matter to the jurisdiction of the Board for passing appropriate order/directions under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased.

[Satya Deo v. State of Uttar Pradesh,  2020 SCC OnLine SC 809, decided on 07.10.2020]

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi, J. rejected the appeal under Section 14-A of the SC/ST (Protection Against Atrocities) Act and laid down the guiding principles for determination of age in a claim of juvenility.

The facts of the case are that a minor girl was raped by the appellant on multiple occasions on the pretext of marrying her and impregnated her after which he gave her certain pills to abort the child. When the girl and his family confronted the appellant he fled after which they filed an FIR against him. The appellant is presently charged under Section 376(2)(n)/313/506 of Indian Penal Code, 1860 read with Section-6 of POCSO Act read with Section-3(2)(v)(va) of SC/ST (Prevention of Atrocities) Act. The case has come before this court for the determination of age of the victim during the case was registered.

The counsel for the appellant Satyabrata Pradhan, Adhiraj Mohanty, S.S. Dash, M.R. Muduli, M.B. Smrutiranjan, A.K. Samal submitted that the girl was not a minor during the offence was committed and subsequently when the case was registered by relying on her Aadhar card and Aanganwadi register report which are prepared by public servants in the course of their official duty making them cogent and reliable proof of the age of the victim. He also submitted that the girl and the appellant had a love affair and due to which the girl on her own consent when she was a major made relations with the accused and hence the appellant is innocent.

The counsel of the State P.K. Mohanty submitted that the date of birth of the victim as per the school admission register and also the Board Certificate seized by the police both the date of birth coincides to be below 18 years at the time of occurrence giving rise to the complaint. He further contended that Rule-12(3) of Juvenile Justice Rule, 2007 as well as Section 94 and Sub-section 2(i) of the Juvenile Justice Act, 2015 provide the procedure to be followed for determination of age.

The Court relied on the Judgment titled Mukarrab v. State of U.P., (2017) 2 SCC 210 and held that court is inclined to go by the school admission register/ matriculation certificate not only due to leaning of the Apex Court on this issue but also due to the fact that same now raises a presumption in law, albeit rebuttable, by way of a deeming fiction in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

In view of the above, issue of minority was found irrelevant and appeal rejected. [Debabrata Sahoo v. State of Odisha, 2020 SCC OnLine Ori 545 , decided on 30-07-2020]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., dismissed the revision petition filed against the rejection of bail to the accused. The revision petition was filed by the juvenile accused of murdering another child in the washroom of a private school in Gurugram.

Order passed by Principal Magistrate, Juvenile Justice board, Gurugram has been prayed to be set aside which dismissed the application for bail filed by petitioner as well as the Order passed by the Appellate Court, Gurugram.

Rupinder Khosla, Senior Counsel for the petitioner submitted that on perusal of the Order passed by lower Courts the language used by them does not entitle the petitioner concession of bail as the following was observed:

no misplaced sympathy can be shown to a juvenile who has perpetrated the offence like murder.

Further it was argued that, as per Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 a person who is apparently a child alleged to be in conflict with law, be notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person.

Senior counsel for the petitioner has further submitted that in the earlier petition, the CBI has admitted that it has no infrastructure to investigate the case. It is further argued that in the observation home there is overcrowding of children and the petitioner has already lost considerable weight, therefore, the petitioner be released on bail.

State’s Counsel submitted that as per the statement recorded by the probation officer, petitioner’s attitude towards the class was aggressive, he used to remain upset most of the time as he disclosed this fact to his music teacher; he was short-tempered and shouted over children; a low average student in studies; found under the influence of liquor.

Further CBI contended that the petitioner has on his own stated in the Supreme Court that he wants his application to be decided as an adult, there will be no applicability of Section 12 of the Act.

CBI also argued that proper hygiene condition are maintained in the protection home.

CBI adding to its contentions has also argued that considering the nature and gravity of the charge, severity of punishment in the event of conviction and the danger of accused absconding or fleeing, if released on bail; character, behaviour, means, position and standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with and danger of justice being thwarted by grant of bail.

Since petitioner has been facing allegation of committing heinous crime of a 7 year old minor child in a very barbaric manner by cutting his throat and then trying to demolish the evidence, no sympathy should be given.

Counsel for the complainant has also submitted that it is the petitioner’s side, who is not allowing the trial to conclude as they have challenged every order passed by the Courts below.

Bench found it appropriate to not grant bail for the following reasons:

  • Court is not inclined to grant any relief to the petitioner, in view of the order dated 28.02.2019 passed by the Hon’ble Supreme Court, directing that for deciding the bail application, the petitioner be treated as an “Adult”, therefore, there is little scope for this Court to find out whether the petitioner can be granted the relief under Section 12 of the Act.
  • Board and the Appellate Court have passed a detailed order declining the concession of bail to the petitioner in view of the proviso to Section 12(1) of the Act and this Court find no reason to form a different opinion.
  • arguments raised by senior counsel for the petitioner that the petitioner is not kept in a congenial atmosphere at Children’s Home and is facing medical problem, are not proved from the two reports of the Medical Board stating that the petitioner is not facing any serious problem/illness and rather it is noticed that the petitioner is gaining weight.
  • prosecution has cited certain witnesses, who are minors including the sister of the deceased and therefore, possibility of tampering the evidence, cannot be ruled out, at this stage in view of the totality of circumstances and the affidavit filed by the CBI.

Thus, in above view, revision petition was dismissed. [Bholu v. State of Haryana, 2020 SCC OnLine P&H 835 , decided on 30-06-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of NV Ramana, SK Kaul and BR Gavai, JJ has asked the Central Government to extend the order passed in In Re Contagion of COVID-19 Virus in Children Protection Homes, to Nari Niketans also, if feasable.

The Court had, on 03.04.2020, the bench of L. Nageswara Rao and Deepak Gupta, JJ issued extensive directions to various authorities after taking sup motu cognizance of the issue involving protection of children who fall within the ambit of Juvenile Justice (Care and Protection of Children) Act, 2015 from the spread of Coronavirus that is sweeping the world.

[Rishad Murtaza v. Union of India,  2020 SCC OnLine SC 377, order dated 21.04.2020]

Case BriefsSupreme Court

Supreme Court: The Division Bench of Uday Umesh Lalit and Vineet Saran, JJ., dismissed an appeal with respect to the denial of appointment for the post of sub-inspector on the ground of a criminal case having been registered against respondent when he was a juvenile.

Court noted the significance of the Juvenile Justice (Care and Protection of Children) Act as follows:

“The thrust of the legislation as well i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 as well as the Juvenile Justice (Care and Protection of Children) Act, 2015 is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile.”

The facts of the present case are that, the respondent had cleared his process of application and interview and was thus selected and offered an appointment for the post of Sub-Inspector in Central Industrial Security Forces (CISF). Further, he was required to submit a form that contained a column relating to whether any FIR had been lodged against the respondent in the past, for which the respondent had given the details of the FIR lodged against him. Respondent had clearly mentioned in his form that he was acquitted for the same on a compromise.

Further respondent’s case was referred to the Standing Screening Committee which found his appointment to be unsuitable on the ground of a criminal case lodged in the past against him. Thus his appointment was cancelled by the National Industrial Security Academy.

Supreme Court’s Observation & Decision

Supreme Court in the present appeal noted that the complaint lodged against respondent was to the effect when he was a minor, he had teased a girl and went to the extent of catching hold of her hand. However, the girl and her parents decided to pardon the respondent resulting in his acquittal.

For the above-said, “even if it is found to be true, the Court stated that it cannot be said that the respondent committed such a crime which would be covered under the definition of moral turpitude, specially when the respondent is said to have committed the alleged offence when he was a minor.”

“Even if the allegations were found to be true, then too the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile.”

Further, the Court noted that, the case against the respondent is not with regard to the suppression of any conviction or charges having been framed against him. Respondent had very fairly disclosed the charges which had been framed and his acquittal.

Thus, the appeal was dismissed with a direction that the respondent shall be entitled to all the benefits of the Judgment. [Union of India v. Ramesh Bishnoi, 2019 SCC OnLine SC 1531, decided on 29-11-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. allowed a petition seeking to quash an order of the Sessions court on the ground that the petitioner was juvenile and protected by the Juvenile Justice (Care and Protection of Children) Act, 2015.

The petitioner along with other persons was accused of forming an unlawful assembly and damaging the informant’s property. A case was instituted under Sections 147,148,149,341,323,324 and 307 of the Penal Code, 1860 (‘IPC’) and Section 27 of the Arms Act. 1959. Petitioner’s case was considered by the Juvenile Justice Board, West Champaran Bettiah. The Board ordered the petitioner to go home in the care of his father. The petitioner, being aggrieved by the order appealed before the Sessions Judge. The Sessions Judge by an order dated 11-02-2016 convicted him under Sections 149 and 307, 149 of the IPC.

Sanjay Kumar, counsel representing the petitioner submitted that on the date of occurrence of an event, the petitioner was 15 years old, the Board had to conclude enquiry without holding anything against the petitioner. He was a member of an unlawful assembly but had no role in any overt act. There was no delinquency record against the petitioner and no complainants were lodged regarding his behaviour. The petitioner was required to be released and the appellate court had gone beyond its jurisdiction in convicting him. The conviction was totally uncalled for as the informant or the State had not filed any appeal.

Bhanu Pratap Singh for the State contended that the order of the board was sufficient and the order passed by Sessions judge regarding petitioner’s guilt is unsustainable as no appeal was preferred by the prosecution.

The Court upon perusal of the facts and circumstances held that the Sessions Judge by ordering conviction has misdirected himself as it was not an appeal by State or the informant and juvenility of the petitioner should have been considered by the court. The court quashed the order and allowed the appeal on two grounds, recording of guilt was found to be unjustified upon appraisal of evidence, and secondly, the petitioner is protected by virtue of Section 24 of the Juvenile Justice (Care and Protection of Children) Act, 2015. [Md. Isteyak v. State of Bihar, 2019 SCC OnLine Pat 1926, decided on 08-11-2019]