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Gaurav Kumar @ Monu vs The State Of Haryana on 1 October, 2015

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  ITEM NO.201                                 COURT NO.5                      SECTION IIB

                                S U P R E M E C O U R T O F            I N D I A
                                        RECORD OF PROCEEDINGS

  Petition(s) for Special Leave to Appeal (Crl.)                           No(s).
  2366-2368/2015

  (Arising out of impugned final judgment and order dated 30/01/2015
  in CRM No. 20593, 26949, 3118/2015 and CRLA No. 937/2002 passed by
  the High Court of Punjab & Haryana at Chandigarh)

  GAURAV KUMAR @ MONU                                                         Petitioner(s)

                                                     VERSUS

  STATE OF HARYANA                                                            Respondent(s)


  Date : 01/10/2015 These petitions were called on for hearing
  today.

  CORAM :                 HON’BLE MR. JUSTICE DIPAK MISRA
                          HON’BLE MR. JUSTICE PRAFULLA C. PANT

  For Petitioner(s)                     Mr. Harin P. Raval, Sr. Adv.
                                        Mr. Rishi Malhotra, Adv.
                                        Mr. Prem Malhotra, AOR


  For Respondent(s)                     Mr. Sanjay Kumar Gogia, AAG
                                        Mr. Deeak Thukral, Adv.
                                        Mr. Vishwa Pal Singh, AOR

                                        Mr. P.K. Dey, Adv.
                                        Mr. D.S. Mahra, Adv.


                           UPON hearing the counsel the Court made the following
                                              O R D E R

Heard Mr. Harin P. Raval, learned senior counsel along with Mr. Rishi Malhotra, learned counsel for the petitioners and Mr. P.K. Dey, learned counsel for the Union of India.

Reason: This Court on 6.4.2015, had passed an order showing it s concern with regard to the crimes committed by the juveniles and sought the opinion of the learned Attorney General for India. Th e 2 relevant part of the said order reads as follows :

"It is submitted by Mr. Mukul Rohatgi, learned Attorney General appearing for Union of India, along with Mr. Tushar Mehta, learned Additional Solicitor General that the concern expressed by this Court is still engaging the attention of the competent authority of the State. It is further submitted by Mr. Rohatgi that he realizes the concern of the ’Nation’ at the rate the heinous crimes are committed by the juveniles, who are called juvenile under the present Act, the Juvenile Justice (Care and Protection of Children) Act, 2000. Elaborating the concern, the learned Attorney General would state that in the instant case the respondent, who claims to be a juvenile, has been alleged accused of offence wherein a gathering in a village was attacked by lethal weapons by other accused persons along with the respondent which has resulted in the death of nine persons and injuries have been suffered by several other persons."

Mr. Rohatgi and Mr. Mehta would submit that the High Court has found him to be a juvenile as he was seventeen years and six months on the date of alleged occurrence, though they seriously would contend that it is factually incorrect. That is the controversy to be gone into.

Mr. Rohatgi and Mr. Mehta would further propone that this kind of involvement of the juveniles under the present Act are increasing and it has actually become a matter of grave concern. We are inclined to think that the concern expressed by learned Attorney General is absolutely correct and we are of the convinced opinion that he will put it across to the competent authorities so that care is taken to the extent that the nature of the offence has some nexus with the age in question, for the cry of the collected is to live in a peaceful society that respects life, dignity and others’ liberty.

Let this matter be listed in the second week of January, 2015, for further hearing.

When we said that we thought that there should be a rethinking by the by the Legislature, it is apt to note here that there can be a situation 3 where commission of an offence may be totally innocuous or emerging from a circumstance where a young boy is not aware of the consequences but in cases of rape, dacoity, murder which are heinous crimes, it is extremely difficult to conceive that the Juvenile was not aware of the consequences.

As the FIR lodged in the present case would reveal, the deceased was liable to pay to the accused no.1 and as he did not pay back, all the accused persons including the present petitioner went to his house, forcibly took him away to another village and assaulted him with kicks, lathies and iron pipes. As the allegation would further reveal, the deceased was removed to a hospital for treatment, gave a dying declaration and consequently succumbed to death. We may hasten to clarify, the appeal has to be decided on its own merits. But the issue that emerges is whether in such a situation, can it be conceived by any stretch of imagination that the petitioner was not aware of the consequences? Or for that matter, was it a crime committed, if proven, with a mind that was not matured enough? Or the life of the victim is totally immaterial, for five people, including a juvenile, think unless  somebody pays the debt, he can face his death.

We have repeated this, in addition to what we have said earlier. The rate of crime and the nature of crime in which the juvenile are getting involved for which the Union of India and the State Governments are compelled to file cases before this Court to which the learned Attorney General does not disagree, have increased. A time has come to think of an effective law to deal with the situation, we would request the learned Attorney General to bring it to the notice of the concerned authorities so that the relevant provisions under the Act can be re-looked, re-scrutinized and re-visited, at least in respect of offences which are heinous in nature."

Mr. Dey, learned counsel appearing for the Union of India has referred to paragraphs 3(b), (C) and (d,) of the affidavit filed by the Union of India which read as under :

"(b) Accordingly, the Government has drafted the Juvenile Justice (Care and Protection of Children) Bill, 2015 to replace the Juvenile Justice (Care and Protection of Chidren) Act, 2000. Key provisions in the Bill include :

7 Change in nomenclature with regard to children in conflict with law and introduction of new definitions; and revision of existing definitions. 7 Clear definition of offences (petty serious and heinous) committed by children. 7 Clarity in powers, function and responsibilities of Juvenile Justice Board (JJB) and Child Welfare Committee (CWC) 7 Separate treatment of children above the age of sixteen years who commit a heinous offence.

7 Separate new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children 7 New offences committee against children 7 Mandatory registration of Child Care Institution.

(c) The Bill was introduced in the Lok Sabha on 12th August, 2014. Thereafter, the bill was referred to the Parliamentary Standing Committee on human Resource Development (HRD) for examination. The Committee presented its report to the Parliament on 25th February, 2015.

(d) The Bill was passed by the Lok Sabha on 7.5.2015 with the following provisions for heinous offences committed by children in the age group of 16-18 years :

(i) Heinous offences defined under clause 2(33) of the Bill are those offences for which the minimum punishment under the IPC or any other law for the time being in force is imprisonment for seven years or more.

(ii) Under Clause 14, Juvenile Justice Board is to conduct a preliminary assessment if a  heinous offence is committed by a child in the age group of 16-18 years. This would be with regard to the mental and physical capacity of the child to commit such 5 offence, ability of the child to understand the consequences of the offence and the circumstances in which the child committed the offence. The Juvenile Justice Board may take the assistance of experienced psychologists, psycho-social workers and other experts. Under the clause 14(3), the Board is to dispose this off within a period of three month from the date of first production of the child before the Board.

(iii) Under Clause 18(3), if after the preliminary assessment the Board comes to the conclusion that there is need for trial of the child as an adult, the Board can transfer trial of the case to the Children’s Court. Under Clause 19, the Children’s Court may either decide that there is need for trial of the child as an adult as per the provisions of the CrPC and pass appropriate order or that there is no need for trial of the child as an adult and may conduct inquiry as a Juvenile Justice Board.

(iv) In case the child is tried as an adult by the Children’s Court, the Court shall ensure that its final order includes an individual care plan for the rehabilitation of child, including follow up by the Probation Officer or the District Child Protection Unit or a Social Worker. The Children’s Court shall ensure that the child is sent to a place of safety till he attains the age of twenty-one years, where the child shall be provided reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy and psychiatric support. The Children’s Court shall ensure that there is a periodic follow-up report every year by the Probation Officer to the District Child Protection Unit or a social Worker, as required to evaluate the progress of the child in the place of safety to ensure that there is no ill-treatment to the child in any form.

(v) Under Clause 20, when the child attains the age of twenty-one years and is yet to complete the term of stay, the Children’s Court shall evaluate if the child has 6 undergone reformative changes and if the child can be contributing member of the society. Thereafter, the Court may either release the child on probation or if the child is incorrigible, send the child to jail for the remainder of his term."

It is submitted by Mr. Dey, learned counsel, that the Bill has been passed by the Lok Sabha on 07.05.2015.  At this juncture, Mr. Raval, learned senior counsel, submitted that even if the Act is amended, his case will not be affected. Be that at it may, the case of the petitioner shall be heard in the week commencing 26.10.2015.

However, we put on record our appreciation for the learned Attorney General for India expressing the concern pertaining to the issue which we had articulated in our earlier order by apprising the competent authorities.

Call on the date fixed.

      (Gulshan Kumar Arora)                            (H.S. Parasher)
           Court Master                                  Court Master