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 38 year old case relating to murder the 3-Judge Bench of Rohinton Fali Nariman, Hemant Gupta* and B.R. Gavai, JJ., had held

“The ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.”

The instant appeal had been preferred against the order of High Court of Judicature at Allahabad, wherein the Court had dismissed the appeal filed by the appellant against his conviction under Section 302 read with Section 34 of Penal Code, 1860. The appellant had reached the Supreme Court with the contention that he was juvenile on the date of incident i.e. 20-07-1982. In support of plea of juvenility, he had relied upon family register maintained by the Panchayat, Aadhaar Card and an order passed by the High Court in the year 1982 by which the High Court had granted him bail on the basis of report of the Radiologist that the age of the appellant at that time was between 15½ – 17½ years.

Later on, perusal to an order of Supreme Court a Medical Board consisting of five doctors was constituted which had opined in the report dated 08-09-2020 that at present the age of applicant was around 40-55 years. Relying on the said report the High Court opined that,

“The occurrence took place on 20-07-1982 i.e. 38 years ago. When age of the appellant is determined on all hypothetical calculations i.e. (55-38=17 years) (40-38= 2 years) and taking the average of difference between maximum and minimum age i.e. 48-38 = 10 years, then it falls below 17 years.”

The Bench reiterated legal position that plea of juvenility could be raised at any stage even after finality of the proceedings before the Court. However, the Bench further observed that There were minor variations in law as the Rule 12(3) (a)(i) and (ii) of Rules, 2007 had been clubbed together with slight change in the language and Section 94 of the new Act did not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules.

Reliance was placed on Mukarrab v. State of Uttar Pradesh, (2017) 2 SCC 210, wherein the Supreme Court while observing that, a blind and mechanical view regarding the age of a person could not be adopted solely on the basis of the medical opinion by the radiological examination, had held that,

“The ossification test cannot be regarded as conclusive when the appellants have crossed the age of thirty years.”

Since the medical report in support of the bail order was not available, the Bench stated that such order granting bail could not be conclusive determination of age of a person.

Determination of Age in the absence of conclusive Proof

First attempt to determine the age was by assessing the physical appearance of the person when brought before the Board or the Committee. In case of a person around 18 years of age, the ossification test could be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person was around 40-55 years of age, the structure of bones could not be helpful in determining the age.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, the Supreme Court had held that in context of certificate required under Section 65B of the Evidence Act, 1872, as per the Latin maxim, lex non cogit ad impossibilia, “law does not demand the impossible”. Thus, when the ossification test could not yield trustworthy and reliable results, such test could not be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the Court stated that the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.

Noticing that an application was submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident, where he had given his date of birth as 30-12-1961 which would make him of 21 years of age on the date of the incident i.e. 20-07-1982, the Court opined that,

“The appellant could not be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to obtain the Arms Licence.”

Non Applicability of Falsus in Uno, Falsus in Omnibus in India

The Supreme Court in Ilangovan v. State of T.N., (2020)10 SCC 533, held, “The doctrine of Falsus in Uno, Falsus in Omnibus merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not what may be called “a mandatory rule of evidence”. Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony of the said witness could not be disregarded qua the present appellant as the said maxim was not applicable in India. Further, it was not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence.

Hence, in the light of above considerations and the fact that the Trial Court as well as the High Court had appreciated the entire evidence to return a finding of guilt against the appellant, the instant appeal was dismissed.

[Ram Vijay Singh v. State of U.P., 2021 SCC OnLine SC 142, decided on 25-02-2021]


Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Appearance before the Court by:

For the Appellant: Senior Advocate Gopal Sankaranarayanan and Advocate Pranav Sachdeva

For the Respondent: Advocate Goel

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]

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 .
  • Discussion ForumTM to post comments, discuss and explore ideas.
  • SCC Online® Blog to stay updated on recent happenings of the legal world.
  • Useful LinksTM get access to a compilation of learning resources.

The book will be of immense use for students of LL.B. and LL.M. Further, the book is a must for law enforcement agencies, police officers,  law teachers, researchers, scholars and practicing lawyers.


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

Legislation UpdatesNotifications

S.O. 1595(E)— In pursuance of Section 4 of the Commission for Protection of Child Rights Act, 2005 (4 of 2006), the Government of India hereby appoint Ms Pragna Parande as Member (Juvenile justice or care of neglected or marginalized children or children with disabilities), National Commission for Protection of Child Rights in the pay scale equivalent to that of an Additional Secretary to the Government of India with effect from 09th March, 2019(A/N) for a period of three years, or until on attaining the age of 60 years, or until further orders, whichever is the earlier.

S.O. 1596(E) — In pursuance of Section 4 of the Commission for Protection of Child Rights Act, 2005 (4 of 2006), the Government of India hereby appoint Ms Rosy Taba as Member (Elimination of child labour or children in distress), National Commission for Protection of Child Rights in the pay scale equivalent to that of an Additional Secretary to the Government of India with effect from 10th March, 2019(F/N) for a period of three years, or until on attaining the age of 60 years, or until further orders, whichever is the earlier.

[Dt. 27-03-2019]

Ministry of Women and Child Development

Hot Off The PressNews

As per Ministry of Labour & Employment, Government is following a multi-pronged strategy for elimination of child labour. It comprises of statutory and legislative measures, rehabilitation and universal elementary education along with convergence with other schemes for socio economic development. Government has enacted the Child Labour (Prohibition & Regulation) Amendment Act, 2016 which came into force w.e.f. 01-09-2016. The Amendment Act inter alia provides for complete prohibition of work or employment of children below 14 years in any occupation and process and adolescents in the age group of 14 to 18 years in hazardous occupations and processes. The amendment also provides stricter punishment for employers for violation of the Act and made the offence as cognizable.

After strengthening the legislative framework through amendment in Child Labour Act, Government has framed the Child Labour (Prohibition & Regulation) Amendment Rules, 2017 which inter alia specifies the duties and responsibilities of State Governments and District Authorities to ensure effective enforcement of the provisions of the Act. Government has also devised a Standard Operating Procedure (SOP) as a ready reckoner for trainers, practitioners and enforcing and monitoring agencies. Government is also implementing the National Child Labour Project (NCLP) Scheme for rehabilitation of child labour. Under the Scheme children in the age group of 9-14 years, rescued/withdrawn from work are enrolled in the NCLP Special Training Centres, where they are provided with bridge education, vocational training, mid day meal, stipend, health care, etc. before being mainstreamed into formal education system.  Further to ensure effective enforcement of the provisions of the Child Labour Act and smooth implementation of the NCLP Scheme a separate online portal PENCIL (Platform for Effective Enforcement for No Child Labour) has been developed.

In addition to above Ministry of Women and Child Development has enacted Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). As per Section 2 (14) (ii) and (ix) of JJ Act, a child who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street and who is found vulnerable and is likely to be inducted into drug abuse or trafficking is included as a “child in need of care and protection”, among others. The children in need of care and protection (CNCP) for rehabilitation has been placed in institutional care i.e. children homes or non-institutional care, such as sponsorship, foster care by Child Welfare Committee. As per JJ Act, 2015, State/UTs are required to set-up Child Care Institutions (CCIs) and are also required to register and monitor them under Section 41 and 54 of the Act respectively.  The primary responsibility of execution of the Act, lies with the State/UTs. However, Central Government is managing “Child Protection Services” (CPS) (erstwhile Integrated Child Protection Scheme) under umbrella Integrated Child Development Services, and providing financial assistance, as Grant-in-Aid, to the States/UTs on sharing pattern for, inter-alia, undertaking a situational analysis of children in difficult circumstances, for setting up and maintenance of various types of CCIs. Further National Commission for Protection of Child Rights (NCPCR), a statutory organization under this ministry, has developed a Standard Operating Procedure (SOP) for care and protection of Children in Street Situations to streamline the processes and interventions regarding children in street situations. Under the scheme “CPS”, institutional care is provided through CCIs, as a rehabilitative measure. In these CCIs, children are provided age appropriate education either within the institution or outside in a formal education system through convergence with other schemes and programs of the Government or civil society. Under the non-institutional care component, support is extended for adoption, foster care and sponsorship.

Ministry of Women and Child Development

Call For PapersLaw School News

About: Bharati Law Review (BLR) is a quarterly double-blind peer reviewed academic journal, published and print. It focuses on issues related to Administrative Law, Civil Procedure Law, Criminal Law, Criminal Procedure Law, Domestic Law, Economic Law, Environmental Law, Intellectual Property Law, Private International Law, Public International Law, Media Law, E-commerce, Banking, Insurance, Information Technology, Computer Science, Cyber Security, and emerging trends in allied subjects.

The Journal is currently soliciting submissions for Volume VII Issue 1 (July-September) 2018. We welcome submissions from academicians, practitioners, students, researchers and experts from within the legal community. We have a strong preference for articles that assert and defend a well-reasoned position.

Call for Papers: Bharati Law Review ISSN 2278-6996 is a quarterly double blind peer reviewed journal. We look forward to submissions from members of the Bar, Bench and the academia. Submissions can be in the form of long articles, short articles, case comments, legislative notes and book reviews.

Special Issue: Volume VII Issue I

The editorial board has decided that the main theme of the FIRST issue of Volume VII shall be “Juvenile Justice and Care”. The Juvenile Justice Care and Protection of children Act, 2015 has been enacted and implemented across the country (except J&K). It is a comprehensive legislation dealing with children of two categories: Children in conflict with law and Children in need of care and protection. Considering all these gaps, this Act has been enacted with an objective to provide proper care and protection, development, treatment and social reintegration of children through the provision of child friendly approach keeping the best interest of children.

Sub-Themes:

  • Juvenile Justice System in India: Need for systemic changes
  • Recent trends in Juvenile Justice System
  • Juvenile Justice (Care and Protection of Children) Act, 2015
  • Juvenile Justice and the Convention on the Rights of Child
  • Juvenile Justice: Constitutional Perspective
  • Juvenile Justice System in Common Law Countries
  • Right to Education and Juvenile Justice
  • Adoption under Juvenile Justice System
  • Terrorism, Technology and Juvenile
  • Juvenile Justice and child abuse

Nature of Contributions

Articles: An article must conduct a complete analysis of the area of law, which the author seeks to highlight. It must contain a comprehensive study of the existing law, indicating the lacunae therein, and must contain an attempt to suggest possible changes which can address the said lacunae. An article should be between 4,000-5,000 words.

Essay : An essay is more adventurous as it challenges challenging existing paradigms/norms and provides a fresh outlook to common problems. It is strongly recommended that essays be considerably more concise than articles, in terms of scope and conceptualization. An essay is thus advised to be between 3,000-5,000 words.

Notes: A note is a relatively concise form of an argument advanced by the author. The focus of a note should be on a relatively new debate or controversy regarding the interpretation or implementation in the law. Notes shall primarily highlight contemporary issues, which need to be addressed, and the authors are expected to offer a solution. The maximum word limit for a manuscript in the form of note is 2,500 words.

Comments: A comment is where the author may decide to critique any recent/landmark judicial pronouncement or any recent legislation or bill before the Parliament or State Legislature. The word limit for a comment is 2,500 words.

Submission Guidelines

Word Limit: As has already been indicated, the maximum word limit for articles and essays is 5,000 words (exclusive of footnotes) whereas that for notes and comments is 2,500 words (exclusive of footnotes).Citation Format: The citation format to be used is The Bluebook (19th Edn.). In keeping with the same, speaking footnotes are discouraged.

Abstract: Every submission should be accompanied by an abstract of not more than 350 words describing the relevant conclusions drawn in the manuscript. Please note that there is no requirement of prior submission of abstract as the selection of the paper for publication shall be on the full manuscript. The abstract shall serve merely to help the Editorial Board in its review process.

Biographical Information of Authors: A document with biographical information of the authors must be given in the footnote of Author’s Name including the following details: Post, Email address, Postal Address, Name and Address of Institution, Course (if applicable), Academic Year.

Submission Deadline: The last date for submission of papers is August 15, 2018.

Mode of Submission: Submissions shall be made on or before August 15, 2018 by sending an e-mail at blr@bvpnlcpune.org .

Submissions should be made along with Plagiarism Test Report and complete details of Author(s).

All submissions shall be made in a prescribed sample format.

Plagiarism Policy: For more details click here.

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Case BriefsSupreme Court

Supreme Court: Showing dismay over the “tardy implementation” of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Act, 2015 (the JJ Act), the Bench of Madan B. Lokur and Deepak Gupta, JJ urged the Chief Justice of each High Court to seriously consider establishing child friendly courts and vulnerable witness courts in each district and said:

“We need to have some compassion towards them – even juveniles in conflict with law, since they are entitled to the presumption of innocence – and establishing child friendly courts and vulnerable witness courts is perhaps one manner in which the justice delivery system can respond to ease their pain and suffering.”

The Court said that such child friendly courts and vulnerable witness courts can also be used for trials in which adult women are victims of sexual offences since they too are often traumatized by the not so friendly setting and environment in our courts.

The bench also gave a number of directions in order to invigorate the juvenile justice system in the country. Some of the important directions are as follows:

  • All positions in the National Commission for Protection of Child Rights (NCPCR) and the State Commissions for the Protection of Child Rights (SCPCRs) should be filled up well in time and adequate staff is provided to these statutory bodies so that they can function effectively and meaningfully for the benefit of the children.
  • The State level Child Protection Societies and the District level Child Protection Units should take the assistance of NGOs and civil society to ensure that the JJ Act serves its purpose.
  • All positions in Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs) should be filled up expeditiously. The JJBs and CWCs must have sittings on a regular basis so that a minimal number of inquiries are pending at any given point of time.
  • The NCPCR and the SCPCRs must carry out time bound studies and especially a study for estimating the number of Probation Officers required for the effective implementation of the JJ Act. Based on this study, the State Government must appoint the necessary number of Probation Officers.
  • The Ministry of Women and Child Development (MWCD) should have a database of missing children, trafficked children and for follow up of adoption cases etc.
  • Meaningful Special Juvenile Police Units and appoint Child Welfare Police Officers in terms of the JJ Act must be set up at the earliest as Police has an important role as the first responder on issues pertaining to offences allegedly committed by children as well as offences committed against children.
  • The National Police Academy and State Police Academies must consider including child rights as a part of their curriculum on a regular basis and not as an isolated or sporadic event.
  • All the Child Care Institutes must be registered. State Governments and Union Territories would be should appoint eminent persons from civil society as Visitors to monitor and supervise the Child Care Institutions in all the districts.
  • The JJ Fund is a bit of an embarrassment with an absence of an effective response from the State Governments and the Union Territories. Financial Resources should be made available for the welfare of the children.
  • All authorities such as JJBs and CWCs, Probation Officers, members of the Child Protection Societies and District Child Protection Units, Special Juvenile Police Units, Child Welfare Police Officers and managerial staff of Child Care Institutions must be sensitized and given adequate training relating to their position.
  • The Chief Justice of every High Court is requested to register proceedings on its own motion for the effective implementation of the JJ Act so that road-blocks if any, encountered by statutory authorities and the Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the concerned governmental authorities.

The Bench said the policy and decision makers should understand that they are not doing any favour to the children of our country by caring for them – it is their constitutional obligation and the social justice laws enacted by Parliament need to be effectively and meaningfully enforced. [Sampurna Behura v. Union of India, 2018 SCC OnLine SC 106, decided on 09.02.2018]

Case BriefsSupreme Court

Supreme Court: In the case where the appellants were involved in at least 24 cases of various offences allegedly committed between 1988 and 1995 and one was alleged to have committed murder and robbery in the year 1988, the Court refused to rely upon the opinion of the medical board in determining the age of the appellants, in the absence of the other cogent evidence, so as to give benefit under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. The Court said that the purpose of Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences.

As per the medical report submitted in the year 2016, the appellants would have been born in the year 1979. The Court said that, going by the report, one accused would have been 9 years old at the time of commission of his first offence in the year 1988 and the other would have been 14 at the time of commission of his first offence in the year 1993. The bench of Dr. A.K. Sikri and R. Banumathi, JJ added that had it been so, when the appellants were produced in those cases the appellants would have been considered as ‘children’ by the very appearance. They would have been dealt with accordingly by the concerned juvenile court and the matters would not have been kept pending till this date. Hence, the opinion of the Medical Board determining the age of the appellants as 35-40 years in May, 2016 cannot be relied upon.

Stating that medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances, the Court said that a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. The Court hence, rejected the plea of juvenility of the appellants in the absence of other cogent evidence. [Mukarrab v. State of U.P., 2016 SCC OnLine SC 1413, decided 30.11.2016]

Case BriefsSupreme Court

Supreme Court: While dealing with the question of the sentencing of a juvenile in light of the enactment of the Juvenile Justice Act 2000 during the pendency of the case, the Bench comprising of V. Gopala Gowda and Uday Umesh Lalit JJ., set aside the sentence of life-imprisonment of the Appellant and remitted the matter to the Jurisdictional Juvenile Board. The Court also recommended that fine should be levied and compensation should be paid by the Appellant to the victim’s family.

In the present case, the Appellants were convicted on the basis of the dying declaration of a man they had allegedly set on fire. The Court dismissed the first criminal appeal no. 2084/2009, as provocation or unreliability of dying declaration were insufficiently proved. The next Appeal turned upon the fact that Appellant Dilshad was of age 16 years, 5 months and 5 days on the date of the occurrence i.e. 27.12.1990, when the Juvenile Justice Act, 1986 was operative, whereby a 16-year old was not juvenile. During the pendency of the appeal to the High Court, the Juvenile Justice (Care and Protection of Children) Act, 2000 came into force, effectively replacing the earlier Act. As reiterated in Pratap Singh v. State of Jharkhand (2005) 3 SCC 551, and Bijender Singh v. State of Haryana (2005) 3 SCC 685, Section 20 of the new Act considers pending cases, and provides via a non obstante clause an exemption for proceedings pending before the Courts. In such cases, a finding shall be recorded, but in lieu of sentencing, the Court was to hand over the juvenile to the custody of the Juvenile Justice Board which was to pass relevant orders. The Court also relied on Dharambir v. State (NCT of Delhi) (2010) 5 SCC 344 in terms of determining juvenility of juvenile in which it was said that the determination even during revision or appeal proceedings, has to be in accordance with clause (l) of Section 2 even if the juvenile ceases to be a juvenile on or before 1-4-2001.
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The Court while holding appellant Dilshad to be juvenile in terms of the 2000 Act as on the day of occurrence and guilty of the offence with which he was tried, set aside the sentence of life imprisonment passed against him and remit the matter to the Jurisdictional Juvenile Justice Board for determining the appropriate quantum of fine that should be levied on the appellant Dilshad and the compensation that should be awarded to the family of the deceased keeping in mind the directions issued in Jitendra Singh v. State of U.P., (2013) 11 SCC 193. Further, the bail bonds furnished by Appellant Mumtaz were cancelled and taken in custody forthwith to undergo the sentence awarded to him.  [Mumtaz v. State of Uttar Pradesh 2016 SCC OnLine SC 653, decided on 01-07-2016]