Jammu & Kashmir High Court
Unknown vs Union Of India & Others on 10 January, 2014
Author: Bansi Lal Bhat
Bench: Bansi Lal Bhat
tate of Jammu & Kashmir would be maintainable? The answer is negated for the following reasons. 6. Precisely, the case of the petitioner is that impugned order has been passed in hot haste, without application of mind and without taking into consideration the grounds taken by the petitioner-defendant No.1 in the application. Petitioner has not questioned the competence-jurisdiction of the trial Court. Petitioner has also not averred in the writ petition that trial Court or appellate Court have passed the order without or in excess of jurisdiction. 7. The maintainability of the petition is put under cloud by its very own averments on the ground that Civil Procedure Code has undergone a sea change with the amendment of 5 2009. The amendment has restricted the powers of the revisional Court. Virtually, petition is in the nature of revision petition and if such a practice is adopted and allowed that will render the aim and object of the amendment infructuous and meaningless. The fact of this Court having vast powers under Article 226 and 227 is undisputed, but care has to be taken when the same is warranted to be exercised, because the powers under such Articles has to be utilized very cautiously, carefully, sparingly and in rarest of the rare cases. 8. The Apex Court in case titled Shalini Shyam Shetty v. Rajendra Shankar Patil reported as 2010 AIR SCW 6387 has observed that there is tendency in High Courts to entertain petition under Article 227 of the Constitution against the orders against which revision is barred in terms of amended Act of CPC. It is apt to reproduce Paragraphs 80, 81 and 82 of the judgment supra herein:- 80. We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Courts power of superintendence. It is too well known 6 to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law. 81. As a result of frequent interference by Honble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. 82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Honble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly. 9. The Apex Court in a case titled Kokkanda B. Poondacha & others v. K. D. Ganapathi & another reported as AIR SCW 2011, 1737, held that invoking of writ or supervisory jurisdiction against interlocutory orders is permissible only when subordinate Court has acted without or in excess of jurisdiction not otherwise. 10. This Court also in case titled Abdul Rehman Dar and others v. Showkat Ali Bhat and others reported in 2011 (IV) JKJ 334 (HC) while following the aforesaid judgments of the Apex Court has laid down the same principle. 11. If a party which loses the case before the trial Court or before the appellate Court is allowed to file writ petition and thereafter if such writ petitions are entertained without any check and balance that will amount to beating litigation and 7 in breach of the purpose, aim and object of the legislation which was made basis for amendment of the CPC. 12. Apex Court in case Shalini Shyam Shetty (supra) also held that if the litigating parties are private and not State functionaries, the writ is not maintainable and a distinction has been made with respect to the powers of High Court under Article 226 and 227. It is apt to reproduce paragraph No. 62:- 62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Courts jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh 8 (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, within the bounds of their authority. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Courts power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the 4Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Courts power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Courts jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo moto. 9 (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality. 13. It is not the case of the petitioner that trial Court has acted without or in excess of jurisdiction or that the order of trial court suffers from any perversity and has resulted in serious miscarriage of justice. The instant case, therefore, does not fall within the parameters laid down by Apex Court for 10 entertaining petition under Article 227 of the Constitution of India which is corresponding to Section 104 of the Constitution of Jammu and Kashmir. 14. The petition is held to be not maintainable. Accordingly, the same is dismissed along with connected CMA, if any. (Tashi Rabstan) Judge Jammu 28.01.2014. MadanPS This judgment is announced by me today in terms of Rule 138(3) of the J&K High Court Rules, 1999. ( Bansi Lal Bhat ) Judge Jammu 28/01/2014 ?HIGH COURT OF JAMMU AND KASHMIR AT JAMMU B A No.123 OF 2013 AND CMA No. 41 OF 2013 Jaspreet Singh & anr. Petitioners State of J&K Respondent !Mr. A. P. Singh, Advocate. ^Mr. H. A. Siddiqui, AAG Honble Mr. Justice Bansi Lal Bhat, Judge Date: 10.01.2014 :J U D G M E N T :
>> Petitioners Jaspreeet Singh and Amandeep Singh figure as accused in case titled State vs. Jaspreet Singh and anr. facing trial for charge under Sections 302/341/34 of RPC before learned Sessions Judge Jammu. Their plea for enlargement on bail was turned down by learned Sessions Judge inspite of finding recorded to the effect that both of them were below 18 years of age when the offence is alleged to have been committed. Unfazed by declining of bail at the hands of learned Sessions Judge, the petitioners have approached this Court through the medium of instant petition filed under Section 498 of Cr.P.C for grant of bail. It is averred in the petition that during the pendency of Challan, petitioners filed an application before learned Sessions Judge claiming bail on the ground that they were juveniles at the time of alleged occurrence which led to an inquiry in which it was proved that the petitioners were below 18 years of age at the time of alleged occurrence. However, learned Sessions Judge rejected the bail plea by holding that the petitioners could not be given 2 benefit under Juvenile Justice Act 2013. It is further averred in the petition that Juvenile Justice Act 2013 has been enforced in the State and petitioners are entitled to bail. It is pointed out that learned Sessions Judge has omitted to consider provisions of Section 2(m)(n), Sections 8, 13 and 21 of the Juvenile Justice (Care and Protection of Children) Act 2013 which, when read together explicitly suggest that even if a person was not a juvenile under the old Act, he had to be treated as juvenile after coming into force of the new Act. It is further pointed out that in terms of Section 21 of the new Act the definition of juvenile would apply even if such person ceased to be so on or before the date of commencement of new Act. Thus, petitioners claim to be entitled to statutory right of bail in view of law laid down by Honble Apex Court in Hari Ram vs. State of Rajasthan & anr. reported in 2009(2) RCR 878 SC and Amit Singh vs. State of Maharashtra reported in 2011 (3) RCR 859 SC.
Notice of the motion was served upon learned Additional Advocate General. As the petition involved interpretation of provisions of the Juvenile Justice (care and protection of Children) Act 2013 (Herein after referred to as the Act), the petition was treated as revision. Opportunity was afforded to petitioners as also the State to address the Court. The Jammu and Kashmir Juvenile Justice Act, 1997 (hereafter referred to as JJ Act) which repealed Jammu and Kashmir Children Act, 1970 and other laws in force dealing with juveniles came to be enforced on 01.04.1998.
It made provisions for the care protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of matters relating to delinquent juveniles. Under this Act, juvenile was defined as a boy who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years. Delinquent juvenile was defined as a juvenile who has been found to have committed an offence. From the scheme of the Act, it appears that the juveniles were broadly classified into two classes;
i) Neglected juveniles which included abandoned, shelter-less, helpless, destitute, truants, school dropouts, street children, beggars, brothel dwellers or associated with prostitutes or brothel dwellers, uncared children, children whose parents 3 are guardians were incapacitated and the victims of abuse and exploitation.
ii) Delinquent juveniles who have been found to have committed an offence.
The JJ Act provided for constitution of juvenile welfare boards to deal with neglected juveniles. It also provided for constitution of juvenile courts to deal with delinquent juveniles. However, the JJ Act, like previous legislations on the subject of juveniles, did not achieve the desired results as the institutions required to be set up under the Act did not come up. It was an unfortunate state of affairs. In absence of constitution of Juvenile Welfare Boards and Juvenile Courts powers were being exercised by the Judicial Magistrates of 1st Class to deal with the neglected juveniles as well as delinquent juveniles. Juvenile homes, special homes and observation homes for perception of juveniles were not set up. No provision was made for aftercare of the rehabilitated juveniles. The State was lagging behind in updating the legislation to bring it on a par with the central legislation which enacted and adopted the Juvenile Justice (Care and Protection of Children) Act, 2000 introducing changes of far reaching consequence. At long last, the State of Jammu and Kashmir rose to the occasion and enacted Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 consolidating and amending the law relating to juveniles in conflict with law and children in need of care and protection. The Act which is pari materia with the Central Act of 2000 with subsequent amendments introduced in 2006, was enforced in the State with effect from 22nd July, 2013. The Act defines juvenile or child as a person who has not completed eighteenth year of age. This is a complete departure from the definition of juvenile in JJ Act of which defined a female child below eighteen as a juvenile but excluded a male child above sixteen years of age from the definition of juvenile. The Act, has, thus removed the disparity insofar as gender is concerned and the relevant age for determining whether a child, male or female, is a juvenile, is eighteen years. Apart from it, the term delinquent juvenile has been substituted by juvenile in conflict with law which has been defined as under:
2.(n). Juvenile in conflict with law means a juvenile who is alleged to have committed an 4 offence and has not completed eighteenth year of age as on the date of commission of such offence; On a plain reading of the definition of juvenile in conflict with law it is manifestly clear that age on the date of commission of offence is relevant for determining the status of a person as a juvenile offender. A person not having completed eighteenth year of age as on the date of commission of offence would be a juvenile in conflict with law. Explanation appended to Section 21 of the Act makes it amply clear that in all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law in any Court the determination of juvenility shall be in terms of Clause (n) of Section 2 even if the juvenile ceases to be so on or before the date of commencement of the Act and the provision of the Act shall apply as if the said provisions had been in force when the alleged offence was committed. The Act was enforced on July 22, 2013 while the offence in the instant case was allegedly committed on July 30, 2011. In terms of provisions of Section 21 of the Act the relevant date for determining the status of petitioners as juveniles in conflict with law would be the date of commission of offence, i.e., 30.07.2011 and not the date of enforcement of the Act, i.e., 22.07.2013 wrongly noted as 22.03.2013 by learned Sessions Judge in the impugned order. The finding arrived at by learned Sessions Judge in regard to the status of petitioners is, on the face of it, erroneous. Same cannot be supported. Learned Sessions Judge failed to notice that provision engrafted in explanation to Section 21 of the Act did not exist in Central Act of 2000 when Constitution Bench of the Honble Apex Court held in Partap Singh vs. State of Jharkhand & anr. reported in (2005)3 SCC 551 that the benefit of juvenility can not be extended to the person who has completed eighteenth year of age as on 01.04.2001, i.e., the date of enforcement of the Act. The applicability of the Act was clarified by Amending Act No. 33 of 2006 (Central) which provided that the benefit of juvenility shall be extended even to juvenile who had completed the age of 18 years on 01.04.2001 and the Act shall have retrospective effect. The explanation added to Section 20 of the Central Act of 2000 (corresponding to 5 Section 21 of the State Act of 2013) is pari materia with the explanation incorporated in Section 21 of the State Act. Learned Sessions Judge landed in error by failing to notice the change in letter of law with the introduction of explanation to Section 20 of the Central Act of 2000 carried out subsequent to the Constitution Bench ruling of the Honble Apex Court in Partap Singhs case (Supra). He also failed to notice that the subsequent rulings of the Honble Apex Court in Hari Ram vs. State of Rajasthan & anr. reported in 2009(2) RCR (Criminal) laying down that all accused between the age group of 16 to 18 years convicted or still facing trial would be treated as juvenile under Central Juvenile Act of 2000 which has retrospective effect and Amit Singh Vs. State of Maharashtra & anr. reported in 2011(3) RCR (Criminal) laying down that the accused was below 18 years on the date of commission of offence and raised the question of juvenility before Honble Supreme Court for the first time was entitled to benefit of juvenility, were noticed by the Honble Apex Court in these decisions. In this regard it would be appropriate to reproduce Para 9 and 10 of the judgment in Amit Singhs case (Supra):
9) The relief prayed for in this writ petition is squarely covered by the law laid down in the case of Hari Ram (supra) whereby this Court had occasion to consider the question elaborately regarding applicability of the Act. This Court considered the decision of the Constitution Bench in the case of Pratap Singh vs. State of Jharkhand & Anr., (2005) 1 RCR (Criminal); 836 : 2005 (1) Apex Criminal 358: (2005)3 SCC 551, wherein this Court formulated two points for consideration:
A. Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the Court/Competent Authority? B. Whether the Act of 2000 will be applicable in the case a proceeding is initiated under the 1986 Act 9 and pending when the Act of 2000 was enforced with effect from 01.04.2001? The Constitution Bench in the above case held that the benefit of juvenility cannot be extended to the person who has completed the 18 years of age as on 01.04.2001 i.e. the date of enforcement of the Act. In the background of this judgment, the Legislature brought Amendment Act 33/2006 proviso and explanation in Section 20 to set at rest doubts that have arisen with regard to the applicability of the Act to the cases pending on 01.04.2001, where a juvenile, who was below 18 years of age at the time of commission of the offence, was involved. The explanation to Section 20 which was added in 2006 makes it clear that in all pending cases, which would include 6 not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of clause (l) of Section 2, even if juvenile ceased to be a juvenile on or before 01.04.2001, when the Act came into force and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Board concerned for passing sentence in accordance with the provisions of the Act.
10) After the judgment of the Constitution Bench in Pratap Singh (supra), this Court in the case of Hari Ram (supra) considered the above question of law in the light of Amendment Act 33 of 2006 in the provisions of the Act which substituted Section 2(l) to define a juvenile in conflict with law as a juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence. Learned Sessions Judge, on the basis of enquiry conducted to determine the status of petitioners in regard to their plea of juvenility came to definite conclusion that both the petitioners were above 16 years of age on the date of commission of offence. He found that petitioner Jaspreet Singh was 16 years and 6 months old on the date of commission of alleged offence while petitioner Amandeep Singh was 16 years 9 months and 12 days old when the alleged occurrence took place. Thus, both the petitioners satisfied the definition of juvenile in conflict with law as defined in Section 2(n) of the Act and in terms of provisions of explanation appended to Section 21 of the Act the determination of juvenility had to be done with reference to Clause
(n) of Section 2 of the Act even if they ceased to be so on or before 23.07.2013 when the Act was enforced. Thus, the mere fact that they had crossed age limit of 18 years on the date of commission of offence did not divers the petitioners of their status as juvenile in conflict with law. The findings recorded by learned Sessions Judge holding the petitioners not to be juveniles being erroneous is, accordingly, set aside. Now coming to the bail, be it seen that in view of the provisions engrafted in Section 13 of the Act, which has an overriding effect and makes it imperative upon the competitive Court to release a juvenile in conflict with 7 law, irrespective of nature of offence unless the Court is of opinion that such release would bring the juvenile into association with known criminals or expose him to moral, physical or physiological danger or that his release defeat the ends of justice and also bearing into mind that the petitioners are not alleged to be belonging to any gang or alleged to be indulging in organized crime or alleged to have been the perpetrators of victims of abuse or exploitation, I find no cogent reason to decline the bail to petitioners. In view of the fore going discussion, petitioners are directed to be enlarged on bail on their furnishing surety and personal bonds in an amount of Rs.1.00 Lac (Rupees One Lac) each to the satisfaction of learned Sessions Judge Jammu subject to imposition of following conditions:
1. That the petitioners shall remain under the care and protection of their parents/guardians who will keep an eye on their activities and in case they notice any change or aggression in their behavior, they will report to the learned Trial Court for appropriate orders;
2. That the petitioners shall not try to establish any contact with the witnesses cited in the challan in order to influence them in any manner whatsoever.
3. That they shall not leave territorial jurisdiction of the learned Trial Court without expressed written permission from the learned Trial Court.
Disposed of accordingly.
(Bansi Lal Bhat) Judge Jammu:
Sunita.
10.01.2014