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.

Patna High Court
Case BriefsHigh Courts

Patna High Court: While addressing the plight of a minor girl who was first trafficked by her own maternal uncle and was later on thrown into prostitution for monetary gains, Rajeev Ranjan Prasad, J., emphasised on need for sensitization of Judicial Officers with regard to statutory provisions of POCSO Act, JJ Act and Immoral Traffic (Prevention) Act.

Background

A raid was conducted by Begusarai Police in the house of the accused (maternal uncle of the victim) from where a girl child aged about 15 years was rescued, the victim girl was found inside the room with an unknown person, two empty bottles of wine, medicine of Aids, pregnancy test kits, eleven used condoms and 100 unused condoms were found from there and the victim girl herself admitted before police that she was being subjected to prostitution forcibly and her maternal uncle and aunt were taking away the money. The victim disclosed that she did not remember name of her parents and on refusal to get involved in prostitution she was being beaten by the accused persons.

At this stage, the respondent 2 did not claim that she happened to be the mother of the victim. Though, at the time of making her statement under Section 164 CrPC, which was recorded ten days after she was produced before the Magistrate after her recovery from the brothel, the victim claimed that her mother was living with her for last one month.

Non-compliance of Statutory Safeguards

The prosecution case was that the Special Judge (POCSO) had erroneously directed release of the minor victim of alleged sexual offences in favour of respondent 2 who claimed herself to be the mother of the victim. The prosecution alleged that the impugned order was passed in non-compliances with the mandatory provisions of the Immoral Traffic (Prevention) Act, 1956, the provisions of Juvenile Justice Act, 2015 and the provisions of Protection of Children from Sexual Offences Act, 2012.

Analysis by the Court

After about four days when the statement of the victim was recorded under S. 164 of CrPC, the respondent 2 filed an application before the Special Judge to allow her to meet the victim girl in the Balika Grih which was allowed subject to proper identification. Later on, the Superintendent, Balika Grih, informed the Special Judge that respondent 2 could not be identified in CCTV Camera by the victim girl. Opining that the letter of the Superintendent should have been an eye opener for the Special Judge, the Bench stated that by that time the victim girl had not been approached, she could not be tutored and therefore she had not recognized respondent 2. However, the Special Judge allowed the respondent 2 to meet the victim.

“After six days, if the victim girl had disclosed the name of her mother as (respondent 2), there was a possibility that during these six days the accused persons would have been able to influence her to make statements favourable to the accused.”

Later on, the application for custody was taken up for consideration and on the same day the victim girl was handed over to (respondent 2) by just taking note of the fact that the victim had desired in her statement under Section 164 CrPC that she wanted to go with her mother.

Considering the prosecution case that no inquiry was made by the Special Judge to find out the genuineness of the claim of respondent 2 that she happened to be the mother of the victim and the order was passed in complete violation of the mandatory provision to make inquiry in respect of her age, parentage etc. in terms of sub-section (2) of Section 17 of the Act of 1956, the Bench opined that the Special Judge had acted in hot haste in passing the order of release of the victim minor girl in favour of respondent 2.

Opining that the identity of respondent 2 as mother of the victim girl was still shrouded by mystery, the Bench was of the view that the Special Judge had completely erred in abiding by the mandatory provisions and by not appreciating that the child who was being placed in the hand of respondent 2 was victim of alleged immoral trafficking as she had categorically stated before Police that she was being subjected to prostitution forcibly. While it was the duty of the Court to treat the victim girl as a child in need of care and protection and she should have been ordered to be produced before the Child Welfare Committee.

Conclusion and Directions

In the backdrop of above, the Bench held that the impugned order suffered from illegalities and infirmities rendering the order illegal and bad in law as also against the interest of the victim child. Accordingly, setting aside the order, the Bench remarked,

“The fact that victim child had been recovered again from the house of the accused persons and the report of social worker saying that at this stage of her life she being subjected to perform dance and stage shows to earn her livelihood and also the livelihood of her mother further shows that she is in need of care and protection.”

Further, noticing that presently the victim girl was with the Balika Grih and the medical Board had assessed her age between 16- 17 years, the Bench directed that until she attains majority, she would continue to stay in the Balika Grih itself and being major her release should be considered in terms of Section 46 of the J.J. Act with financial support in order to facilitate her reintegration into the mainstream of the society. Additionally, the Court directed the following:

  1. The Trial Court shall ensure that the accused persons and their pairvikar do not get access to the victim girl.
  2. Proper inquiry in accordance with law as to the genuineness of the claim of respondent 2 should be held as early as possible.
  3. With the view to sensitize all the stake holders the Bench directed the State through its Chief Secretary, the Home Secretary and the Director General of Police, as also the judicial officers across the State, Bihar State Legal Services Authority and the District Legal Services Authority to ensure that they look into the mandatory provisions of the aforesaid statutes whose aim and objects are to protect the child from all kinds of exploitations.
  4. The areas of these provisions which are required to be addressed be clearly identified, minuted and a monitoring cell be constituted to duly address and comply with the mandate of these legislations.
  5. Bihar State Legal Services Authority was directed to examine as to what extent the directions issued Apne Aap Women Worldwide Trust India v. State of Bihar, 2014 SCC OnLine Pat 5013, have not been complied with and bring it to the notice of the Chief Justice of the Court to consider registering an appropriate proceeding to monitor the implementation of those directions.
  6. Lastly, the Bench directed to circulate the copy of instant judgment to all the District Judges in Bihar with request to organize a workshop in their respective Judgeship with all the judicial officers and Members of the J.J. Board and the Child Welfare Committee to discuss the laws on the subject and ensure compliances therewith.

[Hanif Ur Rahman v. State of Bihar, 2021 SCC OnLine Pat 2775, decided on 4-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Kriti Awasthi, Advocate, Sambhav Gupta, Advocate, Navnit Kumar, Advocate and Shyam Kumar, Advocate

For the Respondents: Mr.Nadim Seraj, G.P.5

For the Respondent 2: Archana Sinha, Advocate

For the Respondent 4: Prabhu Narain Sharma, Advocate

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit J. disposed off the petition and remarked “there is & shall be no cause of action against the foster parents in civil or criminal law concerning the alleged kidnapping of the child.”

The facts of the case involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “Adwik”.

Counsel for the foster mother submitted that she having fostered the child all these months abundant with love, affection & care and the genetic mother already has two children whereas the foster mother has none and hence a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to the foster mother. It was further submitted that in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy has no merit.

Counsel for the genetic mother submitted that between a genetic mother and a foster one, the claim of the latter should be given preference as well as the agony which the genetic parents of the child have undergone since a year or so also highlights the difficulties of a lactating mother from whom the suckling infant is kept away; thus he seeks dismissal of the opposite claim.

International Convention on the Rights of the Child, 1989; Article 3 (1) of this Convention provides:

“…in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . .”

Similarly, Article 7(1) of the Convention says:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents”. Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.”

Article 8 (1) & (2) of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity, ‘name and family relations as recognized by law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity, State Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily its identity.

Article 25 (2) of the Universal Declaration of Human Rights provides:

“Motherhood and childhood are entitled to special care and assistance…”

Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. In October 1979 a Joint WHO/UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: “Breastfeeding is an integral part of the reproductive process, the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”.

Further, Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under:

“All decisions regarding the child shall be based on the primary consideration, that they are in the best interest of the child and to help the child to develop full potential.”

Section 2(9) of the said Act defines the term ‘the best interest of the child’ to mean – “…The basis for any decision taken regarding the child, to ensure fulfillment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development.”

The Court thus observed that breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.

On an analogy being drawn between Yashoda Maa and Devaki Maa the Court observed that unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness; in matters like this, scriptural texts are not treated as edicts of law, unless they are legislated expressly or by necessary implication or otherwise recognized.

The Court on the argument of the foster mother  that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client remarked that its ludicrous and children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between “haves and have nots” is not invocable, at least in this case

The Court remarked that having being convinced of the legitimacy and priority of the claim of the foster mother it was held that the foster mother “gracefully delivered the custody of the child to its genetic parents; the genetic mother too, with equal grace, states that the foster mother may see the child whenever her heart so desires; such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”[Husna Bano v. State of Karnataka, WP No. 16729 of 2021, decided on 24-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner: Mr. Sirajuddin Ahmed

For respondents: Mr. Vinod Kumar and Mr. S. Subramanya

Case BriefsHigh Courts

Bombay High Court: Manish Pitale, J., while stressing upon the concept of adoption expressed that:

The practice of adoption has been prevalent since ancient time and in different societies  the established practices and norms have evolved over a period of time.

With the advent of democracy and modern form of government, such customs, traditions and practices have found their way in codified law through statutes enacted by the Legislature.

There are personal laws enacted specifying rules and procedure for adoption, as also secular laws for regulating such procedure.

Why the District Judge rejected the application filed by the applicants under provisions of JJ Act, 2015 and Adoption Regulations, 2017?

Since the child in the present matter was neither a child in conflict with law, nor a child in need of care and protection, nor an orphan, nor a surrendered/abandoned child, the provisions of the JJ Act, 2015 and the Regulations framed thereunder are not applicable.

Bench on perusal of the provisions of JJ Act, 2015 noted that there was a departure from the provisions of the earlier enactment i.e. JJ Act, 2000.

High Court observed that:

JJ Act, 2015, not only intends to take care of children, who are in conflict with law as defined under section 2(13) of the JJ Act, 2015 and children in need of care and protection defined under section 2(14) thereof, but also to provide for and regulate adoption of children from relatives and adoption by step-parent.

 Court below had adopted a restrictive interpretation of the applicability of the JJ Act, 2015.

Hence, following is to be examined in the present matter:

Whether the above-stated restrictive approach was justified?

High Court noted that a perusal of the provisions of JJ Act, 2015 shows that an elaborate procedure is laid down and contemplated for the adoption of a child by relatives, who are also specified under the said enactment.

Further, it was added that if adoption under the JJ Act, 2015, was to be restrictively applicable only to children in conflict with law or those in need of care and protection, such elaborate provisions governing the procedure for adoption by relatives or stepparents would not have been provided.

The applicant’s counsel as well as the Amicus Curiae are correct in submitting that the JJ Act, 2015, is secular legislation available for the applicants herein to undertake the process of adoption of the girl child.

In the present matter, the child was sought to be adopted by the relatives, who being the maternal uncle and aunt of the child were clearly covered in the definition of ‘relative’ under Section 2(52) of the JJ Act, 2015.

In the Supreme Court’s decision of Shabnam Hashmi v. Union of India, (2014) 4 SCC 1 observation was made, about availability of choice to a person to undertake adoption either under the personal law or under a secular legislation, which was a small step towards reaching the goal of Uniform Civil Code, enshrined under Article 44 of the Constitution of India.

Lower court in the instant matter, completely ignored the availability of choice as was observed in the above decision by extremely restrictive and erroneous interpretation to JJ Act, 2015 provisions for adoption of girl child.

High Court held that on appreciation of the provisions of the JJ Act, 2015 read with Regulations of 2017, adoption of children cannot be restricted only to children in conflict with law or those in need of care and protection or only those children who are orphaned, abandoned or surrendered children.

Therefore, lower court was directed to consider the application afresh on merits under the provisions of the JJ Act, 2015. [Sumed v. Manoj,  2021 SCC OnLine Bom 955, decided on 30-06-2021]


Advocates before the Court:

Mrs. Ira P. Khisti, counsel for the applicants.

Mr.F.T.Mirza, Advocate appointed as Amicus Curiae.

Case BriefsHigh Courts

Orissa High Court: Savitri Ratho J. released the appellant on interim bail for a period of four months to the satisfaction of the Court in seisin of the case.

The facts of the case are such that on 13.10.2019 at about 8 P.M. the appellant entered the house of the informant and abused him in obscene language and assaulted his son Pintu Naik by means of a Bhujali causing bleeding injuries. When the informant protested he was assaulted with fist blows and kicks for which he fell down. The appellant also took away some articles from his house. Pintu Naik succumbed to his injuries while undergoing treatment at MKCG MCH Berhampur. A case was registered under Sections 302/294/323/324/34 of Penal Code, 1860 i.e. I.P.C and he was arrested. An appeal for bail was filed before Presiding Officer (Children Court), Ganjam, Berhampur which was thereby dismissed. Aggrieved by the same, instant appeal was filed under Section 101 (5) of Juvenile Justice (Care and Protection of Children) Act 2015 (i.e. “the JJ Act”).

Counsel for the appellant Mr. S. K. Mohanty submitted that the CICL i.e “Children in Conflict with Law” is aged about 17 years old and is detained in the observation home since more than one and half years and charge sheet has been filed in the meanwhile. He further submits that the CICL has no criminal antecedents and his release is necessary in view of his age and in view of the mandate of Sec 12 of the JJ Act and in view of the risk posed by the Covid-19 pandemic.

Counsel for the respondent Mr. Saswata Pattnaik opposed the prayer for bail stating that the appellant was aged more than 17 years on the date of occurrence and will be treated as an adult and tried by the Children’s Court.

The main issue before the Court is the grant of bail as the CICL has committed a heinous offence in a pre-planned manner by entering the house of the deceased armed with a sharp cutting weapon and his institutional care is necessary for his reformation which will not be possible if he is released on bail.

The Court relied on judgment Re: Contagion Of  Covid 19 Virus In Children’s Homes, (2020) 15 SCC 280 wherein it was held that

…”In this regard, JJBs and Children’s Courts are directed to proactively consider whether a child or children should be kept in the CCI considering the best interest, health and safety concerns.

These may include:

(i) Children alleged to be in conflict with law, residing in Observation Homes, JJB shall consider taking steps to release all children on bail, unless there are clear and valid reasons for the application of the proviso to Section 12, JJ Act, 2015.

(ii) Video conferencing or online sittings can be held to prevent contact for speedy disposal of cases.”

The Court observed that from a careful reading of Section 12 JJ Act, it is clear that a delinquent juvenile has to be released on bail irrespective of nature of the offence alleged to have been committed by him unless it is shown that if he is released on bail there are reasonable grounds to believe that the release of the CICL is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. The nature of offence and the merits of the case do not have any relevance but can be considered to some extent if they are of such a nature as would defeat the ends of justice if the CICL is released on bail.

The Court further observed that a distinction has been carved out among two categories of CICLs –

  • CICLs aged below 16 years and
  • CICLs above 16 years as regards enquiry by the JJ Board or trial by the Children’s Court as per the provisions of Section 15 and Section 18 ( 3) of the Act

but there is no distinction as regards the consideration of their prayer for bail and hence the prayer for bail of both categories of CICLs is to be considered as per the mandate of Section 12 of the JJ Act .

The Court thus held “Considering the nature of allegations against the CICL, the mandate of Section 12 of the Act, the decisions of this Court and the Hon’ble Supreme Court referred to above, absence of the social investigation / background report and in view of the threat of infection and complications posed by the resurgence of Covid 19, I am inclined to release the CICL on interim bail for a period of four months.”

[Nari v. State of Odisha, 2021 SCC OnLine Ori 498, decided on 17-05-2021]


Arunima Bose, Editorial Assistant has put this report 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

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., directed that the statements under Section 164 of the Code of criminal Procedure, 1973 of children in need of care and protection should be recorded by the Metropolitan Magistrate over video conferencing or by visiting the observation homes.

Petitioner has established a Child Care Institution under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Reason for filing the present petition was that, out of a rescue operation in July, 2020 ten minors who were working as child labour were rescued and brought to the Mukti Ashram.

Contention of the petitioner is that the children were compelled to leave Mukti Ashram and physically attend the Court of the Metropolitan Magistrate for recording of their statements under Section 164 of the Code of Criminal Procedure, 1973 and for giving samples for COVID-19 testing.

Respondents should lay down procedures for recording of the childrens’ statements and their medical testing, which does not require them to leave the institution or at atleast to attend at crowded public places.

Bench stated that in the interest of the children who require care and protection it should be necessitated that their exposure t crowded environments be avoided in the prevailing circumstances of the COVID-19 pandemic. As far as possible, they shouldn’t be required to leave the premises of the Child Care Institution in which they are housed.

Court directed as follows:

  • Statements under Section 164 of the Code of Criminal Procedure, 1973 of children in need of care and protection can be recorded by the Metropolitan Magistrate over video conferencing or if the Metropolitan Magistrate deems it necessary, he/ she can visit the concerned observation homes/Child Care Institutions where such children are housed, for recording the statement in person.
  • Proceedings before the Child Welfare Committees and other bodies where the children are required to participate, are already being conducted by video-conference. We direct that this process should be continued, and the requirement of taking the child out of the home/ Child Care Institution should be avoided as far as possible.
  • Covid-19 tests will also be carried out by the State authorities for the children in need of care and protection who are staying at different homes/Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015. The sample shall be collected for this purpose either at the home/Child Care Institution or at the office of the Sub-Divisional Magistrate of the area. The authorities will ensure that all precautions for the welfare of the child are taken, and that the sample is expeditiously collected, so that the child can return to the home/ institution.

In view of the above observations, petition was dismissed. [Bachpan Bachao Andolan v. GNCTD, WP(C) No. 4361 of 2020, decided on 28-07-2020]

New releasesNews

This commentary on Juvenile Justice by Kumar Askand Pandey is an attempt at analysing and understanding the law, philosophy and policies on child rights and child protection as embodied in the JJ Act, 2015. Written in the style of a section-wise commentary, the book provides to its readers an exhaustive insight into the legislative framework of the JJ Act, 2015 as supplemented and complemented by the JJ Rules, 2016.

The book contains a historical introduction to child rights in India, tracing its origin and taking us to the present times, along with 10 chapters, arranged in the same sequence and with the same title as they appear in the JJ Act, 2015. Further, Adoption Regulations, 2017 issued by Central Adoption Resource Authority have been discussed.

The book exhaustively covers the cases of the Supreme Court and the High Court in the area of Juvenile Justice.

Also  included  are  additional  learning  resources  on www.ebcexplorer.com:

  • Access to important case law as indicated by Case PilotTM .
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Brief Contents

I. Preliminary

II. General Principles of Care and Protection of Children

III. Juvenile Justice Board

IV. Procedure in Relation to Children in Conflict with Law

V. Child Welfare Committee

VI. Procedure in Relation to Children in Need of  Care and Protection

VII. Rehabilitation and Social Reintegration

VIII. Adoption

IX. Other Offences Against Children

X. Miscellaneous

Appendix — Juvenile Justice (Care and Protection of Children) Amendment Bill, 2018


*Buy Your Copy here: Juvenile Justice- A Commentary

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of K.Harilal and Annie John. JJ. allowed a revision petition filed by mother of a 15-year old girl, who was subjected to sexual assault by a family friend named Imam Mr Shafeek Al-Kasmi.

The instant petition under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 challenging the order of respondent whereby it was declared that petitioner’s minor daughter required care and protection and that the child’s counselling shall be carried out by admitting her in an institution. 

Mr Ram Mohan G., counsel on behalf of the petitioner, submitted that the continued detention of a child under the orders of respondent was prejudicial to her interests and well being as she required the moral support, guidance and presence of her mother.

Mr Suman Chakravarthy, Senior Government Pleader appearing on behalf of respondent, submitted that even though the sexual assault took place in February 2019, petitioner and her relatives did not report the matter to police due to which the child could not be medically examined. Further, as per the report of District Child Protection Officer, it was not congenial to restore the child to the petitioner, since the accused was a well-known religious leader and a frequent visitor of their family, who had not been arrested so far. Therefore, the child was not safe with the petitioner.

The learned Judges interacted with the child in Chambers in the absence of her mother and relatives. The child expressed her willingness to go along with her mother or maternal grandmother but was not ready to live in the institution. 

The Court opined that inquiry, as contemplated under Section 36 of the Act, was not conducted by the respondent in the presence of petitioner or other family members of the victim. Respondent did not try to ascertain the wishes of the child. Thus, the mandate of Section 3 of the Act was violated. It was held that when the child needs care and protection, then before putting the child in Children’s Home, there should be the application of mind by the committee and it must also take into account the child’s wishes along with the investigation report of Child Welfare Committee.

In view of the above, the impugned order was set aside and Superintendent of Child Shelter Home was directed to release the child forthwith to the petitioner-mother.[Sheeja Navas v. Child Welfare Committee, 2019 SCC OnLine Ker 1156, Order dated 08-03-2019]