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2006 DIGILAW 446 (PAT)

Bharat Prajapat v. State Of Bihar

2006-05-10

MRIDULA MISHRA

body2006
Judgment Mridula Mishra, J. 1. This application has been filed by the petitioner u/s. 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act). 2. The petitioners prayer for bail has been rejected by the Juvenile Justice Board, Gaya in G.R. Case No. 2559 of 1998 Trial No. 4(G)/2005 as well as by the Sessions Judge, Gaya u/s. 52 of the Juvenile Justice Act in Cr. Appeal No. 37 of 2005, petitioners prayer for bail had earlier been rejected by the High Court on four occasions on the ground that he is the main assailant and the offence alleged is of serious nature. 3. As per the prosecution case in the night of 1.12.1998 the son of the informant Rajesh Kumar was shot by Bharat Prajapati (petitioner) simply because he refused to accede to the commands of accused persons not to run the video shop of Krishna. The petitioner was taken into custody on 7.12.1998. He was produced before the court, at that time neither the court assessed him as Juvenile nor any such plea was taken on behalf of the petitioner, that at the time of occurrence he was juvenile. Since no such plea was taken the matter was not referred to Juvenile justice Board for summary trial. In the year 2004 when the case was committed to the court of sessions in Cr.Appeal No. 273 of 2002 then for the first time the plea of being Juvenile on the date of occurrence was taken by the petitioner. Thereafter the matter was referred to the A.C.J.M. Gaya for holding enquiry u/s. 49 of the Act. In course, of enquiry the father brother and cousin of the petitioner were examined as witness. In their evidence they stated that the petitioner was born in the year 1983. In support of this fact no document was produced rather it was said that his birth has taken place at the residence. Certificate of any school was also not produced in support of age of the petitioner simply it was stated that he has never been sent to any school for his study as such there is no of the petitioner was however produced Petitioner was not referred to Medical Board for ascertaining his age. Certificate of any school was also not produced in support of age of the petitioner simply it was stated that he has never been sent to any school for his study as such there is no of the petitioner was however produced Petitioner was not referred to Medical Board for ascertaining his age. On the basis of such enquiry by order dated 14.3.2005 petitioner was declared juvenile and his trial was separated from the trial of other accused. Against this order no appeal was preferred by the State within the period of limitation. 4. The situation is that there is no juvenile Board in Gaya. The State government has not nominated two social workers as Members of Juvenile Justice Board due to which the Board has not been constituted as provided under Section 4 of the Act. Since there is no properly constituted, juvenile justice Board trial of the Juveniles in conflict with law are pending for years together and accused who have been declared juvenile are languishing, in the remand home for a period exceeding the maximum period of three years, for which a juvenile can be kept in custody. 5. So far the case of the petitioner is concerned. I find that the enquiry which has been conducted in case of the petitioner for assessing his age has not been conducted properly. No document was produced in support of the age of the petitioner. He should have been referred to the Medical Board for assessment of the age but that was also not done. The A.C.J.M. Gaya simply relying on the juvenile after seven years of the occurrence. The plea of being juvenile was taken by the petitioner after much delay though it should have been taken at the first instance. 6. Counsel for the petitioner has placed reliance on the decision reported in 1997 (8) S.C.C. 720 in support of this ground that the plea of being juvenile can be raised on behalf of the accused at any time of the trial. Whenever such plea is taken by the accused the court cannot ignore and overlook the beneficial provisions of the Act on the technical ground that at abelated stage the plea has been taken or except the evidence of family members there is no other material to support and estimate the age of the appellant. Whenever such plea is taken by the accused the court cannot ignore and overlook the beneficial provisions of the Act on the technical ground that at abelated stage the plea has been taken or except the evidence of family members there is no other material to support and estimate the age of the appellant. It has also been submitted that the apex court has taken similar view in case of Rajinder Chandra v. State of Chhattisgarh and Anr. - wherein it has been held that instead of adopting a hypertechnical approach in such cases, the court should lean in favour of holding the accused to be a juvenile. Where the doubt regarding the date of birth of the accused was cleared by him. While answering the query made by the court that after 6-7 years of delay the plea of juvenile was taken by the petitioner. Counsel for the petitioner has placed reliance in the case of Gopinath Ghosh V/s. State of West Bengal - wherein the plea that the accused is minor was taken for the first time before the Supreme Court, but the same was entertained for extending benevolent provisions of the Act to the minor. It has also been held that the Supreme Court would be reluctant to entertain a contention based on factual averments raised for the first time before it. However, the Court is equally reluctant to ignore, overlook or nullify the beneficial provisions of a very socially progressive statute by taking shield behind the technicality of the contention being raised for the first time in supreme Court. Therefore, care should be taken that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below before proceeding with the trial or undertaking an inquiry an inquiry must be made about the age of the accused on the date of the occurrence. This ought to be more so where special Acts dealing with juvenile delinquent are in force. If necessary the Magistrate may refer the accused to the Medical Board or the Civil Surgeon as the case may be for obtaining credit worthy evidence about age. Thereafter the Magistrate may proceed in accordance with law. If this procedure is properly followed would avoid a journey up to the Apex Court and the return journey to the grass-root court. If necessary the Magistrate may refer the accused to the Medical Board or the Civil Surgeon as the case may be for obtaining credit worthy evidence about age. Thereafter the Magistrate may proceed in accordance with law. If this procedure is properly followed would avoid a journey up to the Apex Court and the return journey to the grass-root court. If necessary and found expedient, the High Court may on its administrative side issue necessary instructions to cope with the situation. 7. From the decisions cited above it is obvious that the delay cannot be a ground for taking the plea of being juvenile on the date of occurrence. The Supreme Court has also observed that the court should not be too technical in accepting the assessment of age of an accused that he was a juvenile on the date of occurrence. 8. Considering all these matters and also that no appeal was preferred by the State against the order dated 14.3.2005 declaring the petitioner Juvenile the Sessions Judge should not have re-opened the matter regarding the petitioners minority on the date of occurrence. 9. The most disturbing aspect of the matter is that there is no juvenile Board in Gaya and several juvenile accused like the petitioner are languishing for several years in custody without conclusion of their trial which should have been completed in a summary proceeding within six months. Petitioner is in custody since 7.12.1998 and there is no change of conclusion of the trial since there is no juvenile justice Board. 10. Considering the aforesaid fact the Welfare Department of the State of Bihar is directed to constitute Juvenile Board as provided u/s. 4 of the Juvenile Justice (Care and protection of Children) Act, 2000 in the district of Gaya within a month from today by proper notification to this effect. All pending juvenile trials must be taken up on day to day basis and be concluded expeditiously. Similar notification for constitution of juvenile justice Board should be issued for all districts. 11. So far the petitioners is concerned he namely Bharat Prajapat is directed to be released on bail on his furnishing bail bond of Rs. All pending juvenile trials must be taken up on day to day basis and be concluded expeditiously. Similar notification for constitution of juvenile justice Board should be issued for all districts. 11. So far the petitioners is concerned he namely Bharat Prajapat is directed to be released on bail on his furnishing bail bond of Rs. 10,000.00 (Ten thousand) with two sureties of the like amount each to the satisfaction of Juvenile Justice Board, Gaya in connection with Rampur P.S. Case No. 147 of 1998 corresponding to G.R. Case No. 2599, of 1998 T.R.No. 4(G) of 2005. One of the bailor must be the close relation of the petitioner, who is government servant. Such bail or will give undertaking before the juvenile Magistrate regarding good conduct and proper care of the petitioner. He will also give undertaking that the petitioner will not indulge in any crime after being released on bail. Petitioner will participate in the trial on regular basis. 12. Accordingly this application is allowed. 13. A copy of this order should be sent to Secretary, Department of Welfare, State of Bihar as well as the Advocate General, Bihar for proper compliance.