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2008 DIGILAW 1782 (BOM)

Sou Motu High Court on its own motion v. Chief Secretary, Govt. of Maharashtra

2008-12-18

F.I.REBELLO, R.S.MOHITE

body2008
Order One issue which arises in this petition is the continued detention of a "juvenile in conflict with law". Many of these juveniles were convicted at the time Juvenile Justice Act, 1986 was in force when the age of juvenile was 16 years and less. Under the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, the juvenile in conflict with law is any person aged 18 years and less. This court had occasion to consider the effect of Section 7A of the new Act in the case of Imtiaz Hussein Vs. State of Maharashtra in Criminal Appeal No. 750 of 2004 with Criminal Application No. 420 of 2008. We have now held that the provisions of Section 7A will also apply to the prisoners who were earlier convicted under the Juvenile Justice Act, 1986 when the law considered a juvenile to be a person less than 16 years of age. 2. Pursuant to directions issued reports have been received. We find that Yerawada Central Prison, Pune based on this direction, had forwarded the cases of juveniles who were in detention to various Sessions Courts who had convicted such persons. The learned amicus curiae points out that many of the matters are not being considered by the learned Judges on the ground that the judgement passed by them thereafter has been confirmed in appeal before this court or have been disposed of by the learned Supreme Court. The proviso to Section 7A of the New Act is clear and the same reads as under : "7-A. ........................................ Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act." Therefore, even if earlier a case of a juvenile had been considered and even rejected on the basis that the Convict was not 16 years or less, as per the new Act as interpreted, their cases will have to be considered afresh. Similarly, if the cases have not been considered, considering the beneficial provisions of the new Act, these cases will have to be reconsidered. 3. In these circumstances, we issue the following directions: (1) The Principal Sessions Judge in all Districts in the States of Maharashtra and Goa and the Union Territories of Dadra and Nagar Haveli and Daman and Diu on receipt of application from jail superintendents or even sou motu if the application is made to them to consider and dispose of these applications at any rate as far as possible within 90 days of receipt of such applications if that is the court which has jurisdiction to try the matter. (2) We further direct the Principal Secretaries (Home) in the States of Maharashtra and Goa and the Union Territories of Dadra and Nagar Haveli and Daman and Diu to direct the Jail Superintendents to prepare list of juveniles in conflict with law in their prisons if not already done and to forward the same to the respective Sessions Court who had convicted such persons. 3) The Sessions Courts are also directed that in case a matter has been forwarded to them and it is 4) In considering release of the juvenile in conflict with law the learned Sessions Judges will consider Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. We make it clear that in cases covered by Rule 12, where there is doubt as to whether the person was juvenile in conflict with law on the date of commission of the offence while considering the margin of one year it will be the discretion of the learned Judge to consider the material available to him for exercising that discretion. The order dated December 1st, 2008 in Criminal Appeal No. 301 of 2006 in Subodhprasad @ Anil Chotu Jagdish Mehta Vs. The State of Maharashtra to be applied. (5) These directions apart from conviction by the Sessions Court will also apply to those juveniles who have been convicted by the Magistrates Courts which will include Metropolitan Magistrates Courts. The Jail Superintendents and the Magistrates to similarly comply with these directions. The State of Maharashtra to be applied. (5) These directions apart from conviction by the Sessions Court will also apply to those juveniles who have been convicted by the Magistrates Courts which will include Metropolitan Magistrates Courts. The Jail Superintendents and the Magistrates to similarly comply with these directions. (6) If the court comes to the conclusion that the person is juvenile in conflict with law and has already undergone sentence of three years or more, then considering that the maximum sentence under the provisions of new Act is three years, such juvenile be released forthwith. (7) In cases any of the convicts have not completed three years or less, such cases of juveniles be directed to be forwarded to the Juvenile Justice Board for passing appropriate orders. (8) When the matters come up before the learned Judge, if the juvenile is not represented, the court to ensure that such juvenile is given legal aid under the legal aid scheme. (9) We are informed that in regard to another grievance of grievance boxes they are already provided in the Jail. In those jails that do not have grievance boxes the Jail Superintendents to ensure that such grievance boxes are put up within sixty days of the copy of this order being served on them. (10) In Madhukar Bhagwan Jambhale Vs. State of Maharshtra and Others, 1987 Mh.L.J. 68, a learned Bench of this court has directed that key of the grievance boxes will be maintained by the Sessions Judge. Considering that we direct that the Sessions Judge to ensure that the order of this court is followed and that at least once a month the complaints which are received are collected and suitable orders are passed thereon according to law. (11) Further the complaint register in terms of the judgment in Madhukar Jambhale (supra) be maintained by the Sessions Judge. The Sessions Judge will see to it that this will be strictly followed and on their transfer, their successors comply with the said directions. (12) Copy of this order along with order dated 1st December, 2008 in Criminal Appeal NO. 301 of 2006 in the case of Subodhprasad (supra) and order in Imtiaz Hussein Vs. The Sessions Judge will see to it that this will be strictly followed and on their transfer, their successors comply with the said directions. (12) Copy of this order along with order dated 1st December, 2008 in Criminal Appeal NO. 301 of 2006 in the case of Subodhprasad (supra) and order in Imtiaz Hussein Vs. State of Maharashtra in Criminal Appeal No. 750 of 2004 with Criminal Appeal No. 420 of 2008 be forwarded by the Registrar General to all the Principal Sessions Judges in the States of Maharashtra and Goa and Union Territories of Dadra and Nagar Haveli and Daman and Div who in turn shall see to it that they are forwarded to other Judges (13) The Principal Secretaries (Home) to ensure that the copies of this order is forwarded to all the Jail Superintendents in their respective State.