Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 11 (GAU)

Nandeibam Graceson Meitei v. State of Manipur

2009-01-07

ASHOK POTSANGBAM, MAIBAM B.K.SINGH

body2009
JUDGMENT Maibam B.K. Singh, J. 1. Heard Mr. N. Mahendra, Learned Counsel appearing on behalf of the petitioner and Mr. Th. Ibohal, learned Govt. Advocate appealing on behalf of the respondents. 2. Upon hearing the parties through their respective Counsel and on perusal of the materials before the court, the following facts arc ascertained: The petitioner, namely, Shri Nandeibam Graceson Meitei @ Michael was arrested on 30.7.2006 in connection with FIR Case No. 39(7)/2008 PSI P.S. under Section 302/326/34, IPC. But he was released on bail, vide order dated 12.6.2008 passed in Sessions Trial No. 3 of 2007, by the Sessions Judge, Manipur East after making a finding that he was a juvenile in conflict with law. Being aggrieved by the order of the learned Sessions Judge, the State Government challenged it by filing a Crl. Revision Case being No. 8 of 2008. The Crl. Revision Case is still pending before the court. The petitioner was again arrested in connection with FIR Case No. 164(7)/2008 SJM P.S., under Section 17/20 UA(A)A. Act and 25(1-C) A. Act on 29.7.2008. While he was in judicial custody in connection with investigation of the above said case, he was ordered to be detained under National Security Act, 1980, vide order No. Cril/NSA/No.58 of 2008, dated 6.8.2008, by the District Magistrate, Imphal West. The detention order was passed, purportedly, with a view to prevent him from acting in any manner prejudicial to the security of the State and maintenance of public older. The detaining authority was apparently satisfied from police report that the petitioner was acting in a manner prejudicial to the security of the State and maintenance of public order and that the petitioner, who was then in judicial custody in connection with investigation of FIR Case No. 164(1) 2008 SJM P.S. was likely to be released on bail in the near future by the normal Criminal Court as bails were granted in similar cases by the Criminal Courts. The petitioner was furnished with grounds of detention under Section 8 of the National Security Act, 1980 by the detaining authority, vide letter No. Cril./NSA/No. 58 of 2008 dated 7.8.2008. 3. By filing the present writ petition, the petitioner is challenging the legality of the above said detention order dated 7.8.2008 on the ground that the petitioner being a juvenile, the impugned detention order under the National Security Act ought not have been passed. 3. By filing the present writ petition, the petitioner is challenging the legality of the above said detention order dated 7.8.2008 on the ground that the petitioner being a juvenile, the impugned detention order under the National Security Act ought not have been passed. In short, it is the case of the petitioner that a juvenile cannot be detained under the National Security Act, and as such, the impugned detention order is liable to be quashed. 4. Mr. N. Mahendra, Learned Counsel appearing on behalf of the petitioner submits that the petitioner's date of birth, as per his matriculation certificate, is 19.2.1991 and as such, he was only about 17 years of age at the time of passing the impugned detention order. It is to be noted that even assuming that the petitioner's date of birth is 19.2.1991, he was about 17½ years of age at the time of passing the impugned detention order. The Learned Counsel of the petitioner draws our attention to Sections 1(4), 2(k), 2(1), 2(p), 6(2), 7A and 68 and proviso to Section 10 of the Juvenile Justice (Care and Protection of Children) Act, 2000 in support of the petitioner's case. 5. Mr. Th. Ibohal, learned Government Advocate appearing on behalf of the respondents submits that the petitioner was 18 years old at the time of passing the impugned detention order. According to the learned Govt. Advocate, in pursuance of a direction made by the High Court on 21.05.2007, in Crl. Revision Petition No. 2 of 2007, Judicial Magistrate 1st Class, Imphal West made an inquiry regarding the age of the petitioner and the Judicial Magistrate opined to the effect that the petitioner was about 19 years, and as such, above 18 years even at the time of his first arrest on 30.7.2006. Further, according to the learned Govt. Advocate, as per above finding of the learned Judicial Magistrate 1st Class, Imphal West, the petitioner was well above 18 years at the time of passing the impugned detention order dated 7.8.2008. However, according to the learned Govt. Further, according to the learned Govt. Advocate, as per above finding of the learned Judicial Magistrate 1st Class, Imphal West, the petitioner was well above 18 years at the time of passing the impugned detention order dated 7.8.2008. However, according to the learned Govt. Advocate, the learned Sessions Judge in his older dated 12.6.2008 passed in Sessions Trial No. 3 of 2007 came to a wrong conclusion to the effect that the petitioner was a juvenile in conflict with law by holding that benefit in that regard should be given to him and then illegally ordered for releasing him on bail in connection with the said Sessions Trial Case [Ref.: FIR Case No. 39(7) 2006 Patsoi P.S.]. Furthermore, according to the learned Govt. Advocate, being aggrieved by the said order of the learned Sessions Judge, the Crl. Revision Case being No. 8 of 2008 was filed before the High Court and the same is pending. The learned Govt. Advocate submits that apart from the existence of a dispute regarding the question of if the petitioner was of the age of 18 years or not at the time of passing the impugned detention order, even assuming that the petitioner was below 18 years of age at the relevant time, there was no illegality in passing the impugned detention order under the National Security Act as against him inasmuch as even a juvenile can be detained under the National security Act. In this connection, the learned Govt. Advocate draws our attention to the decision of the Orissa High Courts Padmabati Dei v. District Magistrate, Cuttack and Ors. 1995 Crimes (3) 156. 6. In Padmabati Dei (supra), a Division French of the Orissa High court, after consideration of various provisions of the then existing the Juvenile Justice Act, 1986 held that the said Act would not apply to a person detained under the National Security Act but only to a person accused of an offence. The Division Blench held at para 5 of the Judgment: 5. Section 3 of the N.S. Act is the substantive and enabling provision for passing detention orders. It refers to the terminology "any person". Section 2(d) defines the word 'persons', which includes a foreigner also. In the absence of any exception, a juvenile would also be a person within the meaning of the N.S. Act. Section 3 of the N.S. Act is the substantive and enabling provision for passing detention orders. It refers to the terminology "any person". Section 2(d) defines the word 'persons', which includes a foreigner also. In the absence of any exception, a juvenile would also be a person within the meaning of the N.S. Act. Examination of the definition of the term 'person' given by Section 3(42) of the General Clause Act also does not improve the case of the petitioner. It defines the term 'person' as "including any company or association or body of individuals whether incorporated or not". There is no justification whatsoever to restrict the meaning of the term 'person' to a major or a non-juvenile. The primary purpose and object of the N.S. Act is to apprehend certain variety of anti-social and subversive elements to ensure that by their activities larger interests of the citizen and society are not imperiled. It is not meant to punish a man for having done something criminal in the past. Keeping the above object of the N.S. Act in view, we see no reason to restrict its operation only to a major. Such an interpretation has the potentiality of defeating the object of the N.S. Act. Therefore, any poison, whether he is major, or juvenile, would come within the net of the N.S. Act once the subjective satisfaction about the prejudicial activities referred to in Section 3 thereof is properly readied. 7. There is no dispute that the Juvenile Justice Act, 1986 was repealed vide Section 69(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000, hereinafter referred to as the Act of 2000, with a saving made in Section 69(2) of the Act of 2000 to the effect that notwithstanding such repeal anything done or any action taken under the Act of 1986 shall be deemed to have been done or taken under the corresponding provisions of the Act of 2000. The Act of 2000 was enacted to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their developmental needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation and for matters connected therewith or incidental thereto. As per Section 2(k) of the Act of 2000, "Juvenile" or "Child' means a person who has not completed eighteenth year of age. Further as per Section 2(1) of the Act of 2000, "Juvenile in conflict with law'' means a Juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence. The term "offence", as per Section 2(p) of the Act of 2000, means an offence punishable under any law for the time being in force. Further, the term "Child in need of Care and Protection", as per Section 2(d) of the Act of 2000, means a child: (i) who is found without any home or settled place or abode and without any ostensible means of subsistence, [(ia) who is found begging, or who is either a street child or a working child,] (ii) Who resides with a person (whether a guardian of the child or not) and such person: (a) has threatened to kill or injure the child and thorn is a reasonable likelihood of the threat being earned out, or (b) has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person, (iii) who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after, (iv) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child, (v) who does not have parent and no one is willing to take care of or whose patents have abandoned [or surrendered] him or who is missing and run away child and whose parents cannot be found after reasonable injury, (vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts, (vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking, (viii) who is being or is likely to be abused for unconscionable gains, (ix) who is victim of any armed conflict, civil commotion or natural calamity; 8. Chapter II of the Act of 2000 is in respect of juvenile in conflict with law. Chapter II of the Act of 2000 is in respect of juvenile in conflict with law. Sections 4 and 5 of the said Chapter II deal with constitution of a Juvenile Justice Board and procedure etc. in relation to the Board respectively. Section 6(1) of the Act of 2000 empowers a Juvenile Justice Board, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressively provided in the Act, to deal exclusively with all proceedings under the Act relating to juvenile in conflict with law. As per Section 6(2) of the Act of 2000, the powers conferred on the Board by or under the Act may also be exercised by the High Court and the Court of Sessions when the proceeding comes before them in appeal, revision or otherwise. It is to be noted that the powers conferred on the Board is to deal exclusively with all proceedings under the Act relating to juvenile in conflict with law. Section 7 of the Act prescribes with procedure to be followed when a person is brought under any provision of the Act before a magistrate not empowered under the Act. Section 7A of the Act of 2000 prescribes the procedure to be followed when claim of juvenility in respect of an accused is raised before any court. Section 8 of the said Act is regarding establishment and maintenance of Observation Homes for temporary reception of any juvenile in conflict with law. Section 9 of the said Act is regarding establishment and maintenance of Special Homes for reception and rehabilitation of juvenile in conflict with law under the Act. Section 10 of the said Act is regarding the procedure to be followed in case of apprehension of a juvenile in conflict with law by police. Proviso to Section 10 of the said Act states that in no case, a juvenile in conflict with law shall be placed in police lock up or lodged in a jail. When a juvenile is detained under the National Security Act, 1980, it cannot be said that he is a juvenile in conflict with law as per definition in the Act of 2000. Section 12 of the said Act is regarding bail of a juvenile accused of commission of an offence. When a juvenile is detained under the National Security Act, 1980, it cannot be said that he is a juvenile in conflict with law as per definition in the Act of 2000. Section 12 of the said Act is regarding bail of a juvenile accused of commission of an offence. Section 14 of the said Act is regarding inquiry to be made when a juvenile having been charged with an offence is produced before a Board. We have examined the remaining provisions of Chapter II of the said Act and we find that almost all the Sections of the said Chapter are meant to apply in respect of a juvenile in conflict with law in the situations specified in the said Sections. Sections 23, 24, 25 and 26 in the said Chapter II of the Act are provisions providing penalties in connection with exploitation of any juvenile or child. None of the Sections in Chapter II of the said Act states anything about either permissibility or impermissibility of passing a detention order under the National Security Act against a juvenile. 9. Chapter III of the Act of 2000 contains provisions in respect of a child in need of care and protection. In this Chapter, there are provisions in respect of constitution of one or more Child Welfare Committees, Procedure, and Power of a Committee, constitution of children's homes, social auditing of such homes, recognition of shelter homes, etc. There is no provision in Chapter III of the said Act connected with or regarding the detention of a juvenile under the National Security Act, 1980. 10. Chapter IV of the said Act of 2000 deals with rehabilitation and social reintegration of a child. The said provisions are not in any way connected with detention a juvenile under the National Security Act, 1980. 11. Chapter V of the said Act of 2000 contains miscellaneous provisions in matters provided in the said Act. There is no any provision in the said Chapter V either connected with or applicable to a juvenile detained under the National Security Act, 1980. 12. The National Security Act, 1980 was enacted to provide for preventive detention in certain cases and for matters connected therewith. The preventive detention is a precautionary measure taken largely on suspension. There is no any provision in the said Chapter V either connected with or applicable to a juvenile detained under the National Security Act, 1980. 12. The National Security Act, 1980 was enacted to provide for preventive detention in certain cases and for matters connected therewith. The preventive detention is a precautionary measure taken largely on suspension. The object is not to punish the detenue for having done something but to intercept before he does it and to prevent him from so doing. In the State of Punjab v. Sukpal Singh AIR 1990 SC 231 the Hon'ble Apex Court held to the effect that the jurisdiction of preventive detention is essentially different from that of judicial trails for commission of offences and also from preventive security proceedings in criminal courts, both of which proceed on objective consideration of the necessary facts for judicial determination by courts of law and justice functioning according to the prescribed legal procedure. Thus, preventive detention is anticipatory and precautionary action taken to prevent the recurrence of apprehended event. The other is the action taken after the event has already happened. Criminal prosecution cannot be an absolute bar to an order of preventive detention. 13. No doubt, an order of preventive detention is as much a deprivation of liberty of an individual as the punitive detention. The other is the action taken after the event has already happened. Criminal prosecution cannot be an absolute bar to an order of preventive detention. 13. No doubt, an order of preventive detention is as much a deprivation of liberty of an individual as the punitive detention. It is to prevent the possible abuse of the preventive detention provisions that the Legislature has taken care to provide certain statutory safeguards such as: (i) the obligation to furnish to the detenue the grounds of detention ordinarily within 5( five) days, and in exceptional circumstances and for reasons recorded in writing not later than 10(ten) days from the date of detention, (ii) the right to make representation against the order of detention, (iii) the constitution of Advisory Board consisting of persons who are or have been qualified to be appointed as Judges of the High Court, (iv) the reference of the case of the detenue to the Advisory Board within 3(three) weeks from the date of detention, (v) the hearing of the detenue by the Advisory Board and submission by the Board of its report to the Government within 7(seven) weeks of the date of detention, (vi) the obligation of the Government to revoke the detention order if the Advisory Board reports that there is in its opinion no sufficient cause for the detention of the person concerned, (vii) the provision of the maximum period for which a person can be detained and the power of revocation of the detention order by the appropriate Government independently of the recommendation of the Advisory Board. In addition, the detenue or anyone on which behalf has a right to move the High Court and Supreme Court by way of Habeas Corpus challenging the detention order on various grounds. It is to be noted that over the years, by and large the judiciary has interpreted the National Security Act, 1980 and orders made thereunder strictly so as to give the detenue the benefit of every unexplained error of omission and commission and has either struck down the order itself or has held its further operation illegal. 14. It will not be correct to say that when a juvenile is detained under the national Security Act, 1980, there will not be any protection as against him. 14. It will not be correct to say that when a juvenile is detained under the national Security Act, 1980, there will not be any protection as against him. In A.K. Roy v. Union of India AIR 1982 SC 710 , a constitution bench of the Hon'ble Supreme Court was of the view that though it was difficult to frame a code for the treatment of detenue while in detention, each case was required to be examined in order to determine whether the restraints imposed upon the detenue in any particular case were excessive and unrelated to the object of detention and that if so, they must be struck down. At para 108 of the judgment, the Apex Court held "...we must impress upon the government that the detenue must be afforded all reasonable facilities for an existence consistent with human dignity. We see no reason why they should not be permitted to wear their own clothes, eat their own food, have Interviews with the members of their families at least once a week and, last but not the least, have reading and writing materials according to their reasonable requirements. Books are the best friends of man whether inside or outside the jail". The Hon'ble Apex Court held at para 109 of the same judgment as follows: 109. There is one direction which we feel called upon to give specifically and that is that persons who are detained under the national Security Act must be segregated from the convicts and kept in a separate part of the place of detention. It is hardly fair that those who are suspected of being engaged in prejudicial conduct should be lodged in the same ward and cell where the convicts whose crimes are established are lodged.... If any of the persons detained under the National Security Act are at present housed in the same ward or cell where the convicts are housed, immediate steps must be taken to segregate them appropriately.... 15. The view of the Hon'ble Apex Court is to the effect that the restrictions placed upon a person detained under the National Security Act, 1980 must be consistently with the effectiveness of detention and be minimal. In the opinion of the Hon'ble Apex Court, whatever smacks of punishment must be scrupulously avoided in matters of preventive detention. 15. The view of the Hon'ble Apex Court is to the effect that the restrictions placed upon a person detained under the National Security Act, 1980 must be consistently with the effectiveness of detention and be minimal. In the opinion of the Hon'ble Apex Court, whatever smacks of punishment must be scrupulously avoided in matters of preventive detention. In present case before us, there is no any specific and clear allegation about subjection of the petitioner to any ill treatment or harassment. It will be wrong to assume that when a juvenile is detained under the National Security Act, 1980, he is bound to be subjected to Ill-treatments or illegalities. Accordingly, on assumption that when a juvenile is detained under the National Security Act, be will be subjected to illegalities, it will be not correct to hold that a juvenile is not to be detained under the National Security Act, 1980. The need for detaining a juvenile under the said Act may arise on being satisfied on the part of the concerned authority about such a need for invoking the provisions of Section 3 of the Act. 16. Section 3 of the National Security Act, 1980 empowers the concerned authority to pass detention order as against "any person" on being-satisfied about the existence of the necessary facts for invoking the provisions of the section. As per definition given in Section 2(d) of the said Act, "person" includes a foreigner. As observed by the Orissa High Court in Padmabati Dei (supra), the term "person" is defined in Section 3(42) of the General Clause Act as "including any company or association or body of individuals whether incorporated or not". There is no sufficient basis for excluding a juvenile from being a person or for restraining the term 'person' to a major or a non-juvenile. Having regards to the objects for which the National Security Act, 1980 was enacted, we are also of the opinion that if the operation of the said Act is restrained to a major, there is a strong likelihood of defeating the object of the said Act. As already noted above, by detaining a person under the said Act, he is not being punished for his past acts but he is detained only to prevent him from doing prejudicial activities specified in Section 3 of the Act. As already noted above, by detaining a person under the said Act, he is not being punished for his past acts but he is detained only to prevent him from doing prejudicial activities specified in Section 3 of the Act. A juvenile detained under the National Security Act, 1980 cannot be considered as a juvenile in conflict with law as defined in the said Act of 2000. 17. In the light of the above considerations, we are in agreement with the view of the Orissa High Court in Padmabati Dei (supra) and we also hold that the Juvenile Justice (Care and Protection of Children) Act, 2000 does not apply to a person detained under the National Security Act, 1980. In our opinion, the said Act of 2000 will be applicable to juveniles in conflict with law and children in need of care and protection. These two enactments operate at different fields. In the light of the considerations already made above, when the impugned detention order was passed as against the petitioner under the National Security Act, it was not passed for being a juvenile in conflict with law or for being a child in need of care and protection. He was detained to prevent him from acting in any manner prejudicial to the security of the State and the maintenance of public order by invoking the provision of Section 3 of the National Security Act, 1980. The only ground submitted by the Learned Counsel of the petitioner challenging the detention order is not acceptable in law. In view of the above finding, in the present proceeding, it is not required to determination if the petitioner is a juvenile under the provision of the Act of 2000 or not. 18. In the result, this writ petition is dismissed as having no merit. No Interference is made in respect of the impugned detention order. No order as to cost. Petition dismissed.