Punjab-Haryana High Court
Supreet Singh Dilawar vs State Of U.T on 5 September, 2009
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Misc.No.16692 of 2009 (O&M)
Date of decision : 5.9.2009
Supreet Singh Dilawar
....Petitioner
Versus
State of U.T., Chandigarh
...Respondent
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present: Mr.Manish Bhardwaj, Advocate
for the petitioner.
Mr. Hemant Bassi, Advocate
for the respondent.
.....
MAHESH GROVER, J.
This is a petition under Section 439 of the Code of Criminal Procedure read with Section 53 of the Juvenile Justice (Care and Protection of Children)Act, 2000 for grant of bail in case FIR No.89 dated 5.5.2009 under Sections 354, 376, 377, 506, 511, 292 IPC and Section 67-B (b&e) of I.T.Act, registered at Police Station Sector 31, Chandigarh.
The petitioner who is a juvenile is facing the allegations under the aforesaid offences. He is in custody since 5.5.2009. The Principal Judge, Juvenile Justice Court, Chandigarh declined the prayer of the petitioner on the ground that a heinous offence has been committed.
Crl.Misc.No.16692 of 2009 (O&M) -2-
The learned counsel for the petitioner while assailing the impugned order dated 20.5.2009 has contended that the petitioner being a juvenile is entitled to the concession of bail in accordance with the provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'the Act') and the impugned orders are unsustainable in the eyes of law.
On the other hand, learned counsel for the Union Territory, Chandigarh has contended that the petitioner is involved in a serious offence and he does not deserve the concession of bail even if he is a juvenile.
I have heard the learned counsel for the parties. Section 12 of the Act reads as under :-
"Bail of juvenile. --(1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person but he shall not be so released if there appear reasonable grounds for believing that the release 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. Crl.Misc.No.16692 of 2009 (O&M) -3-
(2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until he can be brought before a Board.
(3) When such person is not released on bail under sub-section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order."
According to the aforesaid section, a juvenile may not be released on bail if there appears a reasonable ground for believing that the release of the petitioner 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. If the facts of the case and the material on record is to be reconciled in view of the aforesaid provisions of law,then it seems that the apprehension of the Principal Judge seems to be misplaced.
The entire purpose of the Act is reformatory and keeping in view this purpose in mind the provisions of Section 15 have been enacted which lays down as follows :-
"Order that may be passed regarding juvenile.-- (1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any Crl.Misc.No.16692 of 2009 (O&M) -4- other law for the time being in force, the Board may, if it so thinks fit, --
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home for a period of three years: Crl.Misc.No.16692 of 2009 (O&M) -5-
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do , for reasons to be recorded, reduce the period of stay to such period as it thinks fit.
(2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.
(3) Where an order under clause (d), clause
(e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law:
Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care Crl.Misc.No.16692 of 2009 (O&M) -6- the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.
(4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer."
The aforesaid functions are to be carried out by the Juvenile Justice Board. It envisages broad number of functions and duties that the Board has to carry out to ensure that the juvenile who has come in conflict with law by going astray comes into the main stream. The matters which have been enlisted in Section 15 of the Act are not to be construed as exclusive but the Board has to act in the spirit of the law and ensure that the purpose for which it is enacted is carried out. For that purpose the Board at the time of considering the bail application of a juvenile ought to explore the possibility of resorting to the options which have been entailed in Section 15 of the Act which includes group counselling and counselling through the agencies of professional counsellors to such delinquent juveniles so Crl.Misc.No.16692 of 2009 (O&M) -7- that the process of reforming them is put on track.
The Principal Magistrate is to act by imbibing the spirit of the statute and not merely act by sticking to the letter of the statute while stripping it of its soul.
If the provisions of the Act are to be seen, then the very appointment of a Principal Magistrate is to be made from persons who have special knowledge or training in child psychology or child welfare. Section 4 (2) of the Act provides the constitution of the Board which shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be and two social workers of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure. The Magistrate shall be designated as a Principal Magistrate. Section 4(3) further provides that no Magistrate shall be appointed as a member of the Board unless he has special knowledge or training in child psychology or child welfare and no social worker shall be appointed as a member of the Board unless he has been actively involved in health, education or welfare activities pertaining to children for at least seven years. Section 4(5) of the Act provides for removal of any member of the Board on the grounds which have been enumerated therein which include the failure to attend the proceedings of the Board for consecutive three months.
The emphasis of the Principal Magistrate having knowledge or training in child psychology or child welfare seemingly is not being adhered to which is leading to a situation where a Principal Magistrate addresses the concern of a juvenile with a mind Crl.Misc.No.16692 of 2009 (O&M) -8- set of an ordinary court dealing with an accused, often resulting in harshness of an approach which is totally contrary to the spirit of the Act.
The Court is also concerned with the larger aspect of the matter as to whether the Boards constituted are actually meeting regularly along with its members or is the process being observed more in violence than in adherence. It is incumbent upon the Principal Magistrate while dealing with the matters under Section 12 of the Act to simultaneously pass orders under the provisions of Section 15 of the Act and not merely pass an order shutting out the concession of bail as also shutting out any of the options available under Section 15 of the Act. In fact, even before the Principal Magistrate or the Board proceeds to determine the matter under Section 12, the compliance of procedure under Section 10 has to be ensured where police has to produce the juvenile before the Board without any loss of time and within 24 hours of his being apprehended.
Reverting back to the facts of the case, it is appalling to note that the order of the Principal Judge does not take into consideration any of the aforesaid steps either undertaken by the Board or by the Magistrate himself by referring the matter to the Board. As a result the order merely pays lip service to the provisions of law without making any endeavour to reconcile it with the spirit with which the enactment has been created.
The court while evaluating the chance of harm to a juvenile in conflict with law, has to base its opinion on some Crl.Misc.No.16692 of 2009 (O&M) -9- material, which necessarily may not stem from the gravity of the offence. Therefore it should while dealing with bail under Section 12, simultaneously explore the options given in Section 15, which should also include the opinion of a professional counsellor so as to come to a conclusion that his enlargement on bail is likely to or not likely to expose him to a known criminal or expose him to moral physical or psychological danger.
In this case the Principal Judge has not kept in mind the requirement of Section 12 of the Act while declining the bail to a juvenile. The reason given is a mere piracy of language of the statute which more or less has been influenced by the gravity of the offence; and merely because he committed a heinous offence cannot be made a ground for not releasing the petitioner on bail. I find strength and sustenance in the observations made by the Supreme Court in Partap Singh v. State of Jharkhand and another, 2005(3) S.C.C. 551 which read as under :-
"8. Thus, the whole object of the Act is to provide for the care, protection, treatment, development and rehabilitation of neglected delinquent juveniles. It is a beneficial legislation aimed at to make available the benefit of the Act to the neglected or delinquent juveniles. It is settled law that the interpretation of the Statute of beneficial legislation must be to advance the cause of legislation to the benefit for whom it is made and not to frustrate the intendment of the legislation."
In this view of the matter and for the reasons which have Crl.Misc.No.16692 of 2009 (O&M) -10- been stated above, the present petition is accepted and the petitioner is directed to be released on bail to the satisfaction of Principal Judge, Juvenile Justice Court, Chandigarh. However, before releasing the petitioner on bail the court shall ensure that the father of the petitioner furnishes an affidavit and undertaking to the Court that he shall ensure that his son does not repeat any such occurrence. The Principal Judge through the agency of the Board shall also ensure that regular counselling is provided to the petitioner in order to obviate the recurrence of any such act.
Before parting with the order this Court deems it appropriate to issue directions to all the Principal Magistrates in the State of Punjab and Haryana conferred with the powers under the Act and the Advocates General, Haryana and Punjab and the Standing Counsel of U.T., Chandigarh to place on record the requisite material showing the following :-
i) The constitution of the Board and the manner in which two social workers have been appointed to the Board and whether they fulfill the conditions prescribed in Section 4(2) and 4(3) of the Act;
ii) Whether the proceedings of the Board are being conducted regularly and if so, at what intervals and whether all the members are attending the proceedings or not;
iii) Whether on apprehension of a juvenile the procedure under Section 10 of the Act is being followed or not; and
iv) Whether the Principal Magistrates are complying with the provisions of Section 15 of the Act while determining the matters which come up for consideration before the Board Crl.Misc.No.16692 of 2009 (O&M) -11- including the grant of bails under Section 12 of the Act.
List for further proceedings on 28.10.2009.
September 5, 2009 (MAHESH GROVER)
JUDGE
dss