Orissa High Court
Re-Juvenile-In-Conflict With Law ... vs State Of Orissa on 6 March, 2014
Author: D. Dash
Bench: Pradip Mohanty, D. Dash
HIGH COURT OF ORISSA, CUTTACK
JCRLA No.38 of 2004
From the judgment dated 26.03.2004 passed by Shri S.K. Ray, LLB. Ad
hoc Addl. District & Sessions Judge, Sundargarh in S.T. Case No. 185/62
of 2002).
Re-Juvenile-in-Conflict with law (JCL) ......... Appellant
Versus.
State of Orissa ......... Respondent
For Appellant : Mr. Samarendra Mohanty
For Respondent : Sk. Zafarulla
(Additional Standing Counsel)
.........
PRESENT :
THE HON'BLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HON'BLE SHRI JUSTICE D. DASH
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Date of hearing & judgment: 06.03.2014
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D.DASH,J DJThe appellant from inside the jail has called in question the
judgment of conviction and sentence dated 26.03.2004 passed by the
learned Ad-hoc Additional Sessions Judge, Sundargarh in S.T. Case No.
185/62 of 2002 convicting the appellant for the offence under Sections
302/376(2)(f)/511/201 IPC and sentencing him to undergo imprisonment
for life; rigorous imprisonment for a period of three years and rigorous
imprisonment for a period of one year thereunder respectively.
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2. When the matter came up for hearing, Mr. Samarendra
Mohanty, learned counsel appearing for the appellant filed a petition
under Section 389 of Cr.P.C. for suspension of execution of sentence and
release of the petitioner on bail pending appeal. It is worthwhile to
mention here that an earlier petition filed for suspension of execution of
sentence and release of the petitioner on bail had been rejected by order
dated 01.12.2012. In the subsequent petition, a specific ground was
taken that the appellant was juvenile as on the date of commission of
alleged offence i.e. on 18.11.2001. So the question of juvenility of the
appellant for the first time was raised in the said petition. In support of
the claim, learned counsel for the appellant also filed a copy of the school
leaving/transfer certificate issued by the Headmaster, Sareshbud Primary
School Sadar, Sundargarh.
The said petition being numbered as Misc. Case No. 43 of 2013
came up for hearing and this Court on 02.07.2013 disposed of the same
by the order which runs as under:-
"xxxx Heard learned counsel for the appellant and learned
counsel appearing for the Additional Government Advocate,
This misc. Case has been filed by the learned counsel for the
appellant in Court today to determine the age of the appellant
contending that the appellant was a juvenile on the date of
occurrence. In support of his plea, he has filed a true copy of
School Leaving Certificate. Let it be registered as a misc. Case.
It appears that the appellant has raised the aforesaid
question for the first time. He is inside the Sundergarh Jail being
convicted by the learned ad hoc Addl. Sessions Judge, Sundargarh
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in ST Case No. 185/62 of 2002. Hence, this Court directs the
Superintendent, Sundargarh Jail to produce the appellant before the
District Juvenile Justice Board to determine his age and the learned
C.J.M., who is the Chairman, shall submit a report before this Court
by the next date.
Misc. Case is disposed of.
Put up this matter after four weeks.
Free copy of this order be supplied to the learned Addl.
Government Advocate for compliance. xxxx"
3. In view of aforementioned direction, the District Juvenile
Board under the Chairmanship of Chief Judicial Magistrate, Sundargarh
conducting an enquiry as provided under Rule.12 of Juvenile Justice (Care
and Protection of Children) Rule 2007 and other procedures, concluded
that the age of the appellant as on the date of commission of alleged
offence, i.e. 15.11.2001, was below 16 years i.e. 15 years 4 months 27
days. A report to that effect has been submitted to this Court vide Letter
No.166 dated 15.02.2014.
4. We have heard learned counsel for the appellant
Mr.S.Mohanty and learned Additional Standing Counsel, Mr.Zafarulla at
length.
5. Before coming to the fact of the present case and the
developments, we may note that the issue with regard to the date
relevant for determining juvenility for applicability of the provisions of
Juvenile Justice (Care and Protection of Children) Act, 2000 (In short, the
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Act of 2000) is no longer res-integra, so also the issue regarding the date
relevant for determining the applicability of the Act of 2000 in so far as
the age of the accused is concerned. On account of divergence of views in
case of Umesh Chandra Vrs. State of Rajasthan AIR 1992 AC 1057
and Arnit Das -Vrs.- State of Bihar AIR 2000 SC 2264, the matter
was referred to Constitution Bench in Pratap Singh Vrs. Jharkhand
and another AIR 2005 SC 2731. Affirming the view taken by a Bench
of three judges in Umesh Chandra's case (supra), the Constitution Bench
held that the relevant date for determining age of the accused who claims
to be a juvenile/child would be the date on which the offence has been
committed and not the date when he is produced before the authority or
the Court. It may not be out place to mention here that in the said
decision, the Apex Court also dealt the question as to whether the Act of
2000 will be applicable in a case where proceedings were initiated under
the 1986 Act and were pending when the Act of 2000 was enacted with
effect from 1st April, 2001. Taking into consideration the provisions of
Sections 3 and 20 along with the definition of "Juvenile-in-Conflict with
Law" (in short, JCL)in Section 2(k) of the Act of 2000, as contrasted with
the definition of a male juvenile in Section 2(h) of the 1986 Act, by
majority, it was held that the Act of 2000 would be applicable in a
pending proceeding in any Court/Authority initiated under the 1986 Act
and is pending when the Act of 2000 came into force and the person
concerned had not completed 18 years of age as on 1st April, 2001. In
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other words, it was held that a male offender, against whom proceedings
had been initiated under the 1986 Act in any Court/Authority and had not
competed the age of 18 years as on 1st April, 2001, would be governed
by the provisions of the Act of 2000.
The decision in Pratap Singh's case (supra) led to substitution of
Section 2(l); the insertion of Section 7 A with Proviso and Explanation of
Section 20 of the Act of 2000 by Act No.33 of 2006, as also introduction
of the Juvenile Justice (Care and Protection of Children) Rules, 2007
containing Rule 12 with effect from 22nd August, 2006 which lays down
the procedure to be followed for determination of age of a child or a
juvenile.
6. Adverting to the case in hand, here there remains no dispute
with regard to the juvenility of the appellant in view of the report of the
competent authority being the outcome of an enquiry duly conducted
under the rule and it is not challenged by the State. The position of law
has been well settled in case of Abuzar Hossain @ Gulam Hossain -
Vrs.- State of West Bengal Criminal Appeal No. 1193 of 2006 decided
on 10th October, 2012 and batch cases by the Hon'ble Supreme Court on
a reference to Larger Bench in view of substantial discordance in the
approach of the matter on the question of juvenility in Gopinath Ghosh
-Vrs.- State of W.B; 1984 (Supp.) SCC 228 on the one hand and the
two decisions in Akbar Seikh and others -Vrs.- State of W.B; (2009)
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7 SCC 415 and Hariram -Vrs.- State of Rajasthan and another;
(2009) 13 SCC 211. It has been held that:
"A claim of juvenility may be raised at any stage even
after final disposal of the case. It may be raised for
the first time before this Court and as well after final
disposal of the case. The delay in raising the claim of
juvenility cannot be a ground for rejection of such
claim. The claim of juvenility can be raised in appeal
even if not pressed before the trial court and can be
raised for the first time before this Court though not
pressed before the trial court and in appeal court".
In summarising the position, it has been also said that the
court where the plea of juvenility is raised for the first time should always
be guided by the objectives of the 2000 Act and be alive to the position
that the beneficent and salutary provisions contained in 2000 Act are not
defeated by hyper-technical approach and the persons who are entitled to
get benefits of 2000 Act get such benefits.
In view of aforesaid, we find no hesitation to accept the
report as regards the juvenility and we thus hold that the appellant was a
juvenile as on the date of commission of alleged offence and, therefore,
he is required to be dealt with under the provisions of 2000 Act.
Thus now it is clear that this question of juvenility if would
have been raised before the Committing Court, the appellant then would
have faced an enquiry under the provision of the Act of 2000 culminating
with the consequential result and of late even had it been raised at any
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time during trial, the appellant would have been dealt accordingly. Now
here before this Court for the first time claim of juvenility was made in an
application filed on behalf of the appellant for suspension of execution of
the sentence and his release on bail. The trial stood concluded way back
on 26.03.2004 and the appeal having been presented on 14.07.2004 and
admitted on 28.09.2004 is pending as on date. We have already accepted
the claim of juvenility and accordingly he is to be dealt within the four
corners of 2000 Act and for the purposes of hearing of this appeal, the
appellant has to be said to be continuing as JCL.
7. In such a situation, the question that vexes us is as to what
course should we charter in this appeal. It is no doubt the settled law as
is provided in Section 17 of the Act that no proceeding can be instituted
and no order shall be passed under Chapter-VIII of the Criminal
Procedure Code. Section 18 of the Act forbids a joint trial of a juvenile
who has committed an offence with a person who is not a juvenile. Next
Section 19 makes it clear that a juvenile who has committed an offence
and has been dealt with under the provision of the Act shall not suffer
disqualification if any, attached to a conviction of offence. Sub-section 2
of Section 19 is a step ahead which states that in case of conviction, the
Board shall make an order directing that the records of such conviction
shall be removed after the expiry of the period of appeal or a reasonable
period as prescribed under the rules, as the case may be.
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Next Section 20 is another important provision in the Act
which states that notwithstanding anything contained in the Act, all
proceedings in respect of a juvenile pending in any Court in any area on
the date on which the Act comes into force in that area shall be continued
in that Court as if the Act had not been passed and if the Court finds that
the juvenile had committed an offence, it shall record such finding and
instead of passing any sentence in respect of juvenile forward the juvenile
to the Board which shall pass order in respect of the juvenile in
accordance with the provisions of the Juvenile Act, as if it had passed an
order upon enquiry under the Act that the juvenile has committed the
offence. The Explanation to Section 20 makes it further clear that in all
pending cases which would include not only trial but even subsequent
proceedings by way of revision or appeal, the determination of juvenility
would be in terms to clause (l) to Section-2, even if the juvenile ceased to
be a juvenile on or before 01.04.2001, when the Act came into force, the
provision of 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. As regards explanation to Section 20 of the Act, it would be
appropriate to straightway quote the observations of the Apex Court in
case of Hariram Vrs. State of Rajasthan and another, (2009) 13
SCC 211.
39. The Explanation which was added in 2006, makes it
clear that in all pending cases, which would include not
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only trials but even subsequent proceedings by way of
revision or appeal, the determination of the juvenility of a
juvenile would be in terms of Clause (l) of Section 2,
even if the juvenile ceased to be juvenile on or before
1.4.2001, when the Juvenile Justice Act, 2000 came into
force and the provisions of the Act would apply as if the
said provisions had been in force, for all purposes and for
all material times when the alleged offence was
committed. In fact Section 20 of the Act 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 Juvenile Justice Board concerned for passing
sentence in accordance with the provisions of Juvenile
Justice Act, 2000."
8. It may be kept in mind that the Act is extended to protect the
juvenile from the rigours of a trial by a criminal Court. It prohibits
sentencing of a juvenile and committing him to prison. As its preamble
suggests, it seeks to adopt a child friendly approach in the adjudication
and disposition of matters in the best interest of children and for their
ultimately rehabilitation to bring them to mainstream as a responsible
future citizen of the nation.
9. The instant case has the flavour of its own peculiarity. The
case has been initiated for the commission of alleged offence after the Act
of 2000 came into force. So when the juvenility is established certainly
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the final outcome cannot sustain in eye of law even if we find that the
trial court has rightly arrived at the conclusion favouring the accusations
levelled against JCL upon proper appreciation and analysis of evidence in
the touchstone of settled provision of law. So it stares for next the answer
as to whether the matter would be remitted to the Juvenile Justice Board
to deal with the juvenile in connection with the commission of alleged
offence under the provisions of the Act and the Rules, when present age
of the juvenile is more than 28 years from the very inception or not.
10. At this juncture, we feel it the need to place few cases
decided by the Apex Court:
a) Babban Rai and Another - Vrs.- State of Bihar; (2007)
13 SCC 88-
In this case, two of the appellants later on during pendency
of Criminal Appeal before the Apex Court were found to be JCLs on
the date of alleged occurrence. They had been convicted by trial
Court under Section 302 and 302/149 IPC besides being convicted
under Section 147 IPC and one also under Section 341 IPC followed
by order of sentence of imprisonment for life and other sentences.
An appeal being preferred, the High Court had confirmed the
conviction and sentences.
The Apex Court found the High Court to have rightly upheld
the convictions. Next in view of finding of juvenility the Apex Court,
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felt it just and expedient to set aside the sentence and as they had
by then attained majority ordered for their release as they could
not be sent to the remand home.
b) Satish alias Dhanna-Vrs.- State of M.P. and Others;
(2009) 14 SCC 187-
The JCL had faced a joint trial with other accused persons.
The Apex Court following the course adopted in cases of "Bhola
Bhagat -Vrs.- State of Bihar"; (1997) 8 SCC 720, "Gopinath Ghosh-
vrs-State of W.B."; (1984) Supp SCC 228 and "Bhoop Ram -Vrs.-
State of UP"; (1989) 3 SCC 1, at the distant point of time sustained
the conviction rendered by trial court as confirmed by High Court
and while restricting the sentence to the period undergone ordered
for release of JCLs.
c) Raju and another -Vrs.- State of Haryana; (2010) 3 SCC
235-
The JCL faced trial jointly with other accused persons and was
convicted for offence u/s 302/34 IPC and was sentenced to
imprisonment for life and to pay fine of Rs.5000/- in default to
undergo rigorous imprisonment for three years. The Apex Court, on
re-appreciation, convicted the JCL and another for offence u/s 304
Part I read with Section 34 IPC. In respect of JCL, the case was
referred to the Board in terms of Section 20 of the Act directing the
JCL to be dealt under the provisions of the Act in keeping with the
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provisions of Section 15 thereof and having particular regard to the
period of detention already undergone during the investigation and
trial.
d) Dharam Bir -Vrs.- State (NCT Delhi); AIR 2010 SC
1801-
The appellant for the first time before the Apex Court raised
the claim of juvenility as on the date of alleged occurrence which
upon enquiry was found in his favour.
The appellant had been convicted for offence u/s 302/307/34
IPC after trial. Appeal being preferred, the High Court upheld the
conviction and sentence of imprisonment for life and rigorous
imprisonment for a term of seven years and fine of Rs.500/- with
default stipulation.
The Apex Court then straightway went to analyse the
provisions of Section 15 and 16 of the Act and then taking into
account the actual period of sentence of 2 years 4 months and 4
days as well as the then age of JCL being 35 years felt that it may
not be conducive to the environment in special home and to the
interest of other juveniles housed in the special home, to refer the
JCL to the Board for passing orders for sending the appellant to
special home or for keeping him at some other place of safety for
the remaining period of eight months, the maximum period for
which he could have been then kept in either of two places. So
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while quashing the sentence awarded to him, direction was given
for his release forthwith if not required in any other case.
e) Lakhan Lal -Vrs.- State of Bihar; (2011) 2 SCC 251-
The appellants were convicted for offence u/s 302/34 IPC
when they were not juvenile under 1986 Act and accordingly they
were sentenced to imprisonment for life. The High Court on appeal
confirmed the conviction and sentence. The Apex Court holding that
the appellant would be entitled to the benefit of the Act of 2000
since they were under the age of 18 as on the date of commission
of offence, gave their anxious thought as to what order of sentence
would be passed.
The appellants by then had crossed the age of 40 years.
Having taken the view that it would not be conducive to the
environment in special home when they had undergone actual
sentence of more than three years by then and as the maximum
period provided under Section 15 of the 2000 Act is three years,
while sustaining the conviction they were directed to be released.
f) Kalu @ Amit -Vrs.- State of Haryana; (2012) 53 OCR
(SC) 448-
In respect of one of the appellants, first time issue of
juvenility was raised and decided in favour. The Apex Court, held in
that connection that had the defence of juvenility been raised
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before the High Court, it would have had to record its finding that
accused was guilty, confirm the conviction, sets aside the sentence
and forwarded the case to the Board and the Board would have
passed any appropriate order permissible under Section 15 of the
Act. It has been further held that as the appellant had undergone
more than nine years of imprisonment and as the appellant could
have been kept in protective custody for 3 years under provision of
Section 16 as the offence is serious and he was above 16 years of
age when the offence was committed and as he could not have
been sent to jail, the sentence deserves quashment. Finally, the
appellant was directed to be released.
g) Bharat Bhusan -Vrs- State of H.P.; AIR 2013 SC 2018-
In the said case, conviction was upheld and taking a view that
when the appellant was 36 years of age and had already undergone
nearly three years imprisonment, no reference to the Board was
made as it would serve no purpose and direction for his release was
passed as at that stage of life, it was felt that it would serve no
purpose.
11. In all the aforestated cases, the trial court's conviction and
sentence had been confirmed by High Court and before the Apex Court,
the issue of juvenility having been raised for the first time, had found
favour with. When we turn again to give a plain reading to the provisions
of section 20 with explanation of the Act in the backdrop of the aim and
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objective of the enactment, legislative intent is clearly culled out that the
said section has been engrafted in the statue also to meet these
eventualities and situations which had been well realized having insight
into the realities of life in the country i.e. illiteracy and its cause that is
poverty; the poor economic condition, poor educational attainment due to
lack of opportunity. The explanation makes it abundantly clear when it
speaks of trial, revision, appeal or any other criminal proceedings in
respect of JCL in any Court. So on a conjoint and harmonious reading of
the said section with explanation, this Court in seisin of the appeal in view
of the finding of juvenility as on the date of commission of offence, is
called upon to find out as to if JCL has committed the offence.
In view of the above discussion therefore and in the best
interest of juvenile instead of remitting the matter to the Board for
conducting any enquiry afresh, we feel it proper as also in accordance
with law to proceed to examine the evidence as to if a finding can be
rendered that the JCL has committed the offences or not.
12. The factual matrix of the case is the following:-
On 16.11.2001, Laxman first reported about the missing of
his daughter since previous evening at Bhasma police station. On
17.11.2001 it came to be known about some foul smell emanating near a
straw heap of one Gulbadan Kisan, who is a neighbour of JCL. So Laxman
with others went there and initially detected one hand and the frock,
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extending out which were identified to be that of the deceased. The dead
body of Laxman's daughter was then recovered from there in a putrefied
condition. So, on 18.11.2001 evening these facts were again reported at
the police station. At that time Laxman went on narrating that on
15.11.2001 evening his daughter was playing with her friends when JCL
came, joined them and had taken his daughter. It was also stated that
hearing about the same, when JCL was asked about it, he confessed to
have committed the crime of rape and murder. The matter was then
investigated and finally charge sheet was submitted.
13. The prosecution has examined 15 witnesses in order to
establish the accusation. P.W.1 is the father of the deceased and
informant. P.Ws. 2, 3, 11, 13 and 14 are the co-villagers. P.Ws.4 to 7 are
the friends of the deceased. The doctors conducting post-mortem
examination have been examined as P.Ws.8 and 9. JCL being examined
during investigation, the doctor who had examined him has been cited as
P.W.10. P.W.12 is the police constable and witness to the seizure of the
wearing apparels and other samples like pubic hair, etc. of the accused.
The Investigating Officer at the end has been examined as P.W.15.
Besides the above, the FIR has been admitted in evidence
and marked as Ext.1. The post-mortem examination report is Ext.3 and
the corresponding opinion later on sought for is Ext.4. Exts.5 and 6 are
the seizure lists. Ext. 11 is the statement of P.W.13 recorded under
section 164 Cr.P.C.
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14. On carefully going through the records, it appears that the
case is based on extra judicial confession of the JCL coupled with some
other circumstances. As culled out, the circumstances are the followings.
1. On 15.11.2001, the deceased was playing with her friends
when JCL came, played for some time with them and took the
deceased with him and since then, the deceased was no more
seen alive;
2. The dead body of the deceased was recovered in a putrefied
condition beyond the straw heap on 17.11.2001;
3. The death of the deceased is due to asphyxia resulting from
suffocation and strangulation.
4. The doctor had found vaginal injury and also injuries on other
parts of the body of the deceased.
15. It is settled position of law that extra judicial confession is
ordinarily a weak piece of evidence, but if the same has been made freely
and voluntarily before the persons/person on whom there remains good
reasons for the person so confessing to repose confidence and in absence
of any such suspicious feature so as to entertain doubt in it, there is no
bar to even to base a conviction upon its acceptance.
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16. To examine the evidence on that score, it is to find out
whether the same passes through the acid test and if as such is
acceptable.
It has been deposed by P.W.4 that after recovery of the dead
body, he and others asked JCL and his cousin brother Udit whose house is
close to the place where the straws were heaped from where the dead
body was recovered as to how the dead body could come there and kept
concealed. The question was asked by Aswini, P.W.14. It has been
deposed by P.W.3 that JCL confessed before them that the deceased and
her friends while were playing, he went there, played with the deceased
and allowed her to climb over his body and then took her away placing
her on his shoulders. It is stated that JCL further confessed before them
that he carried the deceased to the straw heap of Gulbadan, raped her
there and when the deceased tried to raise alarm, he had no other
alternative, but to close her mouth and nose, which ultimately resulted
her death on account of suffocation, when the only option remained with
him to conceal the dead body underneath the straw heap and leave the
place. P.W. 11 even during his cross examination has stated that JCL had
so confessed on being asked by Aswini. It is also the evidence of P.W.14.
There surfaces no such material to entertain any doubt in respect of the
testimonies of all these witnesses, who had absolutely no animosity with
JCL nor his family members when there remains very good justification
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for the JCL at that point of time to repose confidence upon those persons
at that stage.
Furthermore, in view of the age of JCL as determined, it is but
very natural to accept such type of confession. It is common experience
that a child when tells something as regards his own activity, either he
tells total falsehood and blatant lies or nothing but the absolute truth and
never chooses any middle path like elders. So we find that the
prosecution has been able to establish the fact that it is the JCL who had
confessed to have committed rape and murder of the deceased. Moreover
this receives corroboration from the medical evidence. When confession is
on the score of rape, it has been deposed by the doctor-P.W.10 that JCL
then was capable of going for sexual intercourse and the doctor who had
conducted post-mortem examination has also stated to have found
vaginal injuries with blood clots. It has also been proved from the side of
the prosecution that the death was due to asphyxia as a result of
suffocation along with strangulation, i.e. homicidal, which fully coincide
with the version of JCL as stated to have been made before the co-
villagers. The evidence of PW 8 with regard to the lapse of time since
death till the post-mortem examination, more or less coincide with the
version of the JCL.
Further corroboration also comes from the evidence of P.Ws.
4 to 7, the friends of the deceased. All those children have stated that
when in the evening they were playing with the deceased, JCL arrived
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there, joined with them for some time and then took with him the
deceased where after they stated to have not seen the deceased any
more. The conduct of the children in not informing anybody about the
same cannot also be viewed adversely when they had nothing to doubt
with regard to the said conduct of the JCL, who is a neighbour and almost
like an elder brother to them.
17. In view of the aforesaid discussion of evidence and conclusion
arrived therefrom, we hold that JCL has committed the offence under
sections 302/376 (2)(f)/511/201 IPC. With the finding as stated above,
we hereby set aside the sentence imposed and in accordance with the
provisions of Section-20 of Act 2000, the case is forwarded to District
Juvenile Justice Board, Sundergarh for passing orders in accordance with
the provision of Act of 2000 as if it had been satisfied on inquiry under
the Act that the JCL has committed the offence. It is, however, observed
that the Board in the said exercise shall take into consideration the
present age of the JCL and the factum of his period of actual custodial
detention and bear in mind all the relevant factors.
18. Before parting, as we experience in many a matters the
deficiencies of the Boards in passing appropriate order after holding JCL
to have committed offence in an inquiry held under the provisions of the
Act, we feel to place the followings which appeal to our judicial mind for
providing guidance to the Boards.
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18.1 The provision of Section 15 of the Act provides as to
what orders that may be passed regarding juvenile who on enquiry
has been found to have committed an offence. In these cases Social
Investigation reports of the juveniles are to be called for as per the
requirement of sub-section (2) of Section 15 of the Act. It is
provided therein that said findings of the report shall be taken into
consideration.
18.2 The law mandates that the social investigation report
must indicate the relationship of JCL with the parents, other
members of the neighbourhood and the effect if so citing the
instances as regards to the bad company and also the reasons
thereof. Therefore, it may be kept in mind that in order to repel
the recommendation made in the said report if based on due
findings, the Board is under legal obligation to assign good and
satisfactory reason bearing in mind that provisions of Section-15 of
the Act no where refers to the nature and gravity of the offence nor
the facts and circumstances concerning the accusation established
upon enquiry.
18.3 However, mostly it is seen that the Board is first taking
into consideration the nature and gravity of the offences and then
accordingly considering not to extend the benefits as provided in
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the said section without passing other appropriate orders if any
permissible in law.
18.4 Under the scheme of the Act, there is an enquiry
followed by a finding on commission of offence and next comes the
consequential order in respect of the said juvenile which are two
distinct aspects. Once the juvenile is found to have committed the
offence on an enquiry, then the paramount consideration arises as
to what order that would be passed in the matter so as to sub serve
the objective set-forth in the Act and then the prime consideration
only remains, the welfare, wellbeing, developmental needs and
restoring the path of life of the juvenile so as to see that he
ultimately stands as a responsible citizen of the country considering
for a moment that he had been detracted from that path by an
accidental situation or under compelling circumstances in an
environment not conducive for him. The purpose is to bring the
juvenile to mainstream and his rehabilitation by way of correction of
his conduct, behaviour, attitude, etc. by exploring all the
possibilities as prescribed under the law. That is the reason the
Legislature has provided in section 15, a number of measures that
the Board may resort to for the purpose as it think fit and proper.
Keeping this in mind even the Legislature has taken every care with
regard to the constitution of the Juvenile Justice Board. Thus, while
providing in Section 4(2) of the Act that the Board shall consist of
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the Metropolitan Magistrate or a Magistrate of First Class, besides
other two social workers out of whom at least one shall be woman,
in sub-section (3) a rider has been put that such Magistrate who
has special knowledge or training in child psychology or child
welfare can be appointed as the Magistrate of the Board. So, here
the role of the Board is twofold and its function is dual. The first for
conducting an enquiry in accordance with the provisions of the Act
in arriving whether the juvenile has committed the offence or not
and thereafter the role as a person having special knowledge or a
trained one in respect of child psychology and welfare. This has
been purposely made so as to see that even if the juvenile is found
to have committed the offence, all possible attempts have to be
taken to bring him to the mainstream in seeing that he stands in
the society as a good and responsible citizen, considering for a
moment that such commission of offence was a normal aberration.
In fact finding of commission of the offences by a juvenile has not
much to do or weigh in the mind of the Board while passing the
order thereafter which is to be only governed by provision of
Section 15 of the Act. Section 16 provides the orders which may not
be passed against juvenile. If we go further deep into the matter, it
has to be presumed that such orders stated in Section 16 of the Act
have not been permitted as those have the effect of completely
shattering the idea or hope behind the enactment for achievement
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of its objectives as stated above. That is the reason Section 15 of
the Act contains the non-obstinate clause. The general sentencing
principles and as settled in law that the sentence must
commensurate with the offence is not given that much of adherence
to under the scheme of this Act. Here, the orders as enumerated in
Section 15 of the Act basically aim at disposition of matters in the
best interest of juveniles aiming at their ultimate rehabilitation
exploring all such possibilities and by tracking it from time to time
till that point as it can be and till that time as possible. Therefore, if
the general principle of sentencing that it is the nature and gravity
of the crime but not the criminal which are germane for
consideration of appropriate sentence in a criminal trial is adhered
to with rigidity here then in that event it may tend to frustrate the
avowed objects sought to be achieved by the enactment. Rather
under the Act, the adherence to the reverse appears to have been
intended. This in view of ours derives further support when we see
that in Section 15 of the Act only in the proviso to clause (g) of
Sub-section (1), the power is given to take into consideration the
nature of the offence and circumstances of the case so as arrive at
a satisfaction that period of detention of the juvenile in the special
Home as prescribed in Clause (g) as three years if needs reduction
being expedient to do so. So only for reduction in that order of
detention the nature of crime and circumstances of the case are
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permissible to be looked into. But nowhere the severity of the crime
alone is permissible to be considered for passing any order under
Section 15 of the Act. We find that the section opens with 'Board
may if it so thinks fit..........' ; it certainly means that thinking must
be confined in the light and direction of sub-serving the aims and
objectives of the enactment and not otherwise. Children are the
future assets of Nation. When an asset for some silly reason or
other such as poverty, illiteracy, ill advice, lack of proper
understanding, etc., which at that age is not an unnatural
phenomenon and for that the society and state have not been able
to take due care, has started diminishing in its value, till it is
reduced to zero, there remains all the possibility for its restoration
so far as its value is concerned and that is the reason the State
under the enactment has taken all the burden in that light of
attempts for avoidance of the blame or washing away the sins
whatever we may say, in discharge of its duty to prevent the
wastage and further damage of assets in taking proper care and
protection and to see that ultimately they do not stand as liability
but as real assets.
19. In the light of aforesaid, thus there must exist sufficient
justification in respect of the ultimate order which the Board is called
upon to pass in respect of the JCL after finding him to have committed
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offence by properly appreciating and applying the provisions of law in the
backdrops of the aims and objectives of the enactment.
20. Although we have made the attempt in providing above for
the guidance of Board in passing the order at the end of the proceedings
in respect of the JCL, still we feel that these are not exhaustive.
21. We place on record our appreciation for the invaluable and
dispassionate assistance rendered by Mr.Zafarulla, learned Additional
Standing Counsel and we hope that in future he would be continuing with
such sincere endeavour in the aid of and in furtherance of the cause of
justice.
22. JCRLA stands accordingly disposed of. The LCR with our
judgment be immediately dispatched to the Juvenile Justice Board,
Sundergarh under intimation to the Sessions Judge, Sundergarh, for
completion of the exercise at the earliest from the receipt of the record.
23. The case in hand in our view is an exposition of a sad sad
scenario, firstly, because of the manner,the JCL has been dealt with for
all these years since the time of his arrest and forwarding to the Court
and thereafter. Its more so when we view as to how the State with its
statutory functionaries have allowed such carelessness and insensitivity
throwing the statutory duty cast upon them to the winds possibly
harbouring the attitude of utter indifference and adopting cavalier
fashion. It is also shocking to note that when 2000 Act has been enacted
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by replacing the 1986 Act to carry forward the constitutional philosophy
engrafted in Article 15(3), 39(e) and (f), 45 and 47 of the Constitution
and also incorporate the standards prescribed in the Convention on the
Rights of the Child, United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985, the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990) and all other
relevant international instruments, the authorities here have all acted
being total oblivious of the same. Their wooden approach has led to the
piquant situation where advantage of the beneficial legislation provided
with emphatic terms seems to have been denied to the unfortunate JCL
at the earliest. With this expression of ours, we however refrain from
further elaboration of the flawed action of all concerned and stop here
with a hope that no such instance would perhaps occur in future with due
and sincere efforts of all concerned in discharging their statutory duty
bestowing proper and appropriate approach in consonance with the aims
and objectives of the enactment and as suggested in the preamble.
This judgment in our considered view is required to be
circulated to all those functionaries for chalking out action plan
accordingly enriched with further enlightened views and ideas in
preventing recurrence of such instance and also having a thorough survey
if any such matter still remains for being remedied/dealt at the earliest in
accordance with law. The Registry is directed to send copies of the
judgment to -
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(i) Chief Secretary, Odisha;
(ii) Principal Secretary, Home, Govt. of Odisha;
(iii) Principal Secretary, Women & Child Welfare Govt. of Odisha;
(iv) Chairperson, Odisha State Commission for Protection of Child Rights;
(v) Secretary, Odisha State Legal Services Authority;
(vi) Chairman of District Legal Services Authorities of the State;
(vii) Principal Magistrate of District Juvenile Justice Boards of the State of
Odisha,
for necessary action. Secretary, Odisha State Legal Services Authority is
hereby further directed to monitor and have periodical review through
Chairpersons of D.L.S.A. and other functionaries.
.............................
D. Dash, J.
PRADIP MOHANTY, J.I agree.
.............................. Pradip Mohanty, J.
Orissa High Court, Cuttack th Dated the 6 March, 2014/Arun
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