Jharkhand High Court
Abhay Bharadwaj vs The State Of Jharkhand ..... Opp. Party on 20 October, 2021
Author: Rajesh Kumar
Bench: Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No.382 of 2021
Abhay Bharadwaj
@ Abhay Giri ...... Petitioner
Versus
The State of Jharkhand ..... Opp. Party
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr. Ankit Kumar, Advocate For the State : Ms. Priya Shrestha, A.P.P
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The matter was taken up through Video Conferencing. Learned counsel for the parties had no objection with it and submitted that the audio and video qualities are good.
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04/Dated: 20 October, 2021
1. The juvenile, who is in the age group of 16-18 years and is an accused of committing heinous crime (Section 302 of the I.P.C), has approached this Court for his release on bail through his father, who is ready and willing to maintain and take proper care of the juvenile in his custody.
2. It has been submitted by the learned counsel for the petitioner/ juvenile that the juvenile is in custody since 15.08.2019 and till date the matter is lingering with the Juvenile Justice Board as the Board is not functional at present.
3. This Court, vide order dated 15.09.2021, had called for the age assessment order of the juvenile and the consideration made under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Social Investigation report from the court concerned. The report has been submitted and from perusal of the said report, it appears that the Juvenile Justice Board is not functional as there is no Member in the Board.
4. The relevant provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (For short J. J. Act, 2015) are quoted herein below :-
"14. Inquiry by Board regarding child in conflict with law.- (1) Where a child alleged to be in conflict with -2- law is produced before Board, the Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under sections 17 and 18 of this Act.
(2) The inquiry under this section shall be completed within a period of four months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of two more months by the Board, having regard to the circumstances of the case and after recording the reasons in writing for such extension.
(3) A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board.
(4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated:
Provided that for serious or heinous offences, in case the Board requires further extension of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded in writing. (5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:-
(a) at the time of initiating the inquiry, the Board shall satisfy itself that the child in conflict with law has not been subjected to any ill-treatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such ill- treatment;
(b) in all cases under the Act, the proceedings shall be conducted in simple manner as possible and care shall be taken to ensure that the child, against whom the proceedings have been instituted, is given child- friendly atmosphere during the proceedings;
(c) every child brought before the Board shall be given the opportunity of being heard and participate in the inquiry;
(d) cases of petty offences, shall be disposed of by the Board through summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure, 1973;
(e) inquiry of serious offences shall be disposed of by -3- the Board, by following the procedure, for trial in summons cases under the Code of Criminal Procedure, 1973;
(f) inquiry of heinous offences,-
(i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e);
(ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed under section 15.
15. Preliminary assessment into heinous offences by Board.- (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts. Explanation.- For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. (2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973:
Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101 Provided further that the assessment under this section shall be completed within the period specified in section 14.
16. Review of pendency of inquiry.- (1) The Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall review the pendency of cases of the Board once in every three months, and shall direct the Board to increase the frequency of its sittings or may recommend the constitution of additional Boards.
-4-(2) The number of cases pending before the Board, duration of such pendency, nature of pendency and reasons thereof shall be reviewed in every six months by a high level committee consisting of the Executive Chairperson of the State Legal Services Authority, who shall be the Chairperson, the Home Secretary, the Secretary responsible for the implementation of this Act in the State and a representative from a voluntary or nongovernmental organisation to be nominated by the Chairperson.
(3) The information of such pendency shall also be furnished by the Board to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate and the District Magistrate on quarterly basis in such form as may be prescribed by the State Government.
19. Powers of Children's Court.- (1) After the receipt of preliminary assessment from the Board under section 15, the Children's Court may decide that-
(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;
(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.
(2) The Children's Court shall ensure that the final order, with regard to a child in conflict with law, shall include 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. (3) The Children's Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:
Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety. (4) The Children's Court shall ensure that there is a -5- periodic follow up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill- treatment to the child in any form.
(5) The reports under sub-section (4) shall be forwarded to the Children's Court for record and follow up, as may be required."
The tone and tenor of the J. J. Act, 2015 is very loud and clear that if any juvenile is found in conflict with law, then he has to be dealt with due care and if any heinous crime has been committed by the juvenile in the age group of 16-18 years, then after assessment of age, consideration has to be made under Section 15 of the J. J. Act, 2015 after taking assistance/ help of the psychologist and other experts.
5. In the present case, from perusal of the report, it is evident that the Juvenile Justice Board is not functioning in the District of Deoghar. In the absence of Member, no order can be passed regarding sending the case of the juvenile for trial.
As per scheme of the J. J. Act, 2015, firstly the age assessment has to be made by the Board and then consideration regarding the desirability of the trial by the Children's Court and if such recommendation is made to the Children's Court and the case is transferred, even at this stage, the Children's Court is mandated under Section 19 of the J. J. Act, 2015 to make further assessment regarding desirability of conducting trial by the Children's Court. At this stage also, the higher forum has to make assessment whether the matter should be handled by the Board by conducting enquiry or the juvenile in conflict with law shall face rigours of trial before the Children's Court. Thus, the mandate is clear that ordinarily the law is in favour of enquiry only and in case where the heinous crime has been committed, the J. J. Board and the Children's Court are of the view that the trial should be conducted, then only, the trial will be conducted as per mandate of the J. J. Act, 2015.
6. In the present case, the F.I.R has been lodged on 11.08.2019 and the juvenile is in custody since 15.08.2019 and till date no decision has been taken as per mandate of Section 15 of the J. J. Act, 2015 due to non-availability of the -6- other Member in the Juvenile Justice Board. In such a situation, this Court has no option but to consider the case of the juvenile under enquiry and the juvenile can be handled for reformation for the period of maximum three years only. Further, the mandate of Section 3 of the J. J. Act, 2015 is that the institutional correction is the last resort.
7. In view of the above discussions and considering the prevailing situation in the State of Jharkhand, the petitioner is directed to be released on bail on his furnishing bail bond of Rs.10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of learned Principal Magistrate, Juvenile Justice Board, Deoghar in connection with Deoghar (Town) P.S. Case No.378 of 2019, corresponding to G.R. No.598 of 2019, subject to the condition that one of the bailors must be the father of the petitioner.
Further, concerned Probation Officer is directed to report, once in a month, to the Juvenile Justice Board, Deoghar regarding up keeping of minor.
8. Accordingly, the instant revision is allowed and the impugned order dated 12.06.2020, passed by the court of learned 1st Additional Sessions Judge, Deoghar, in Cr. (Juvenile Bail) Appeal No.28 of 2020 is, hereby, set aside.
(Rajesh Kumar, J.) Chandan/-