Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 847 (MP)

Sourabh Yadav v. State of M. P.

2012-09-03

G.D.SAXENA, S.K.GANGELE

body2012
ORDER Saxena, J. -- 1. By preferring this petition under Article 226/227 of the Constitution of India, the petitioner with issuance of writ of certiorari or any other suitable writ, seeks quashment of the order dated 7th April 2012 passed by the District Magistrate Bhind under section 3(2) of the National Security Act 1980, directing him to be detained in Central Jail, Gwalior. 2. The facts, for just decision of this petition are that the Superintendent of Police Bhind informed in writing that the petitioner is constantly involved in criminal activities in the area. Number of criminal reports were received by the police authorities. A large number of criminal reports were lodged against the petitioner and number of criminal cases were reported to be pending against him. On satisfying with the materials available by the police and placing due consideration thereon, the learned District Magistrate passed the impugned order (Annexure P-1), hence, this petition. 3. Learned counsel for the petitioner contended that at the time of passing the detention order dated 7th April 2012, the petitioner was below 18 years of age and so he was a juvenile. It is submitted that under the circumstances, the provisions of Juvenile Justice (Care and Protection) Act, 2000 shall apply to the present case. It is submitted that the District Magistrate though was empowered under the National Security Act, 1980 but was not having jurisdiction over Juvenile Justice (Care and Protection) Act, 2000 for passing the detention order against the petitioner. It is also pointed out that the petitioner filed the mark sheet of District Primary Board Examination Bhind Year 2004 wherein it was mentioned that he is son of Suresh Yadav and Smt. Shrilata, whose date of birth is 8th July 1994 and he participated in the examination as a private candidate from Mahavir Swami School Mau, District Bhind and was declared passed. As per mark sheet, the age of the petitioner, at the relevant time, was below 18 years of age, hence, according to the learned counsel, the impugned order deserves to be set aside, which was passed by the District Magistrate ignoring the relevant provisions of law. 4. As per mark sheet, the age of the petitioner, at the relevant time, was below 18 years of age, hence, according to the learned counsel, the impugned order deserves to be set aside, which was passed by the District Magistrate ignoring the relevant provisions of law. 4. Opposing the prayer, the State in its reply admitted that as per information of the Head Master of Mahavir Swami Middle School Mau, District Bhind, petitioner Sourabh got admitted in class 6th and studied up to class 8th and his date of birth is 8th July 1994. Admittedly, the age of the petitioner was at the relevant time was below 18 years. It was also mentioned that the petitioner was involved in several criminal cases pending before the criminal Courts. No objection regarding juvenility was raised by the petitioner before the District Magistrate and consequently the District Magistrate passed the detention order against him on satisfaction of the proofs adduced under section 3(2) of the Act. 5. Heard the learned counsel for the petitioner and the learned Additional Advocate General appearing for the respondents/State. Also perused the law applicable to the case at hand. 6. The question which arises for consideration is, whether detention of a child under 18 years under the provisions of National Security Act, 1980, is warranted? 7. Since in this petition before us, a question has been raised that on the grounds, as above, keeping a juvenile under detention, is illegal, we have decided first to satisfy ourselves whether, the petitioner is a juvenile and entitled to care, protection, treatment, development and rehabilitation as a delinquent juvenile under the Juvenile Justice Act, or, not and accordingly, the detention order is against the provisions of law? 8. Relevant provisions are as follows : Section 1. Short title extent (commencement and application). -- (1) This Act may be called the Juvenile Justice (Care and Protection of Children) Act, 2000. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall come into force on such date -- as the Central Government may, by notification in the Official Gazette, appoint. (4) Notwithstanding anything contained in any other law for the time being in force, the provisions the provisions of this Act shall apply to all cases involving detention prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law. [Ins. (4) Notwithstanding anything contained in any other law for the time being in force, the provisions the provisions of this Act shall apply to all cases involving detention prosecution, penalty or sentence of imprisonment of juveniles in conflict with law under such other law. [Ins. By Act 33 of 2006, section 3(ii) (w.e.f. 22.8.2006] 3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile. -- Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child. [7A. Procedure to be followed when claim of juvenility is raised before any Court. -- (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be : Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained 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. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect.] 9. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect.] 9. Looking to the provisions adumbrated above, the legislative policy is clear that a child and specially a child of 14 years should not be sent to jail, as, there he may fall in the company of criminals and other undesirable persons. The legislature intended that such a child should be given opportunity to reform himself and for which purpose provisions have been made in the Act. The petitioner’s detention is obviously inconsistent with the legislative policy. Preventive detention is quite different from punitive detention. Preventive detention does not partake in any manner of the nature of punishment. The detaining authority is accordingly, under a bounden duty to consider the facts and circumstances of the case with abundant caution and care specially in a case where the police submits proposals for the detention of a child of immature age. Moreover, a juvenile’s freedom is one of a proper custody of a guardian, either a natural guardian, a de facto guardian, or a de jure guardian appointed by a Court. Detention in judicial custody or otherwise is a task discharged by the Courts and other competent detaining authorities to put a person in custody, where he is not free to act at his will and resort to unlawful activities. Since a juvenile is always in custody and that custody is deliberately chosen by the Juvenile Justice Act, it is difficult to think that his delinquency will make him a habitual offender. Since a juvenile is always in custody and that custody is deliberately chosen by the Juvenile Justice Act, it is difficult to think that his delinquency will make him a habitual offender. It is clear discretion of the police and the Court, after complying with the requirements of law in this behalf, to choose the custody of the juvenile, except in jail, if proper care is taken and the age of the offender is ascertained and when he is found a juvenile, care is taken to see that he is not left in the custody of the parents, who are likely to expose him to the dangers of the social evils and all such other conditions are met with concern for the welfare of the child (juvenile), there will be no occasion for anybody to resort to action of preventive detention of such person. 10. There may be cases where on account of criminal activities of a young boy and his involvement in various serious offences indicating repetitive tendency, may make it imperative for the detaining authority to pass order detaining him if his activities are found to be prejudicial to public order or maintenance of supplies essential to the public. 11. In the case of Gopinath v. State of West Bengal [1984 Cri.LJ 168], Hon’ble Supreme Court has interfered with the conviction of a juvenile tried in a regular Court of Session, on the ground that when it is unquestionably established on unassailable evidence that on the date of offence, the delinquent was aged about 16 or 17 years, he was a juvenile delinquent, he could not be committed to the Court of Session by the learned Magistrate. But only an enquiry could have been made against him as provided in section 25 of the West Bengal Children Act, similar to the provisions in the Juvenile Justice Act and he could not be sentenced to suffer imprisonment. 12. But only an enquiry could have been made against him as provided in section 25 of the West Bengal Children Act, similar to the provisions in the Juvenile Justice Act and he could not be sentenced to suffer imprisonment. 12. While no person in a democracy shall be deprived of his life or personal liberty, except in accordance with the procedure established by law, a special procedure as respects the preventive detention laws is sanctioned by the rules in Article 22 of the Constitution itself and once a preventive detention law is kept within the confines of the rules in this behalf, as found in the Constitution of India, they are sustained also for the reason that anti-social activities engulf the freedom of such individuals, who abide by the law. A juvenile and a child, however, are prone to evil effects of the anti-social activities, as situations of social mal-adjustment and conditions, in which they are made to live, make them easy victims of machinations of anti-social elements in the society. A formal system of Juvenile Justice, without involvement of voluntary agencies engaged in the welfare of neglected or socially mal-adjusted children, was not found adequate and a need for larger involvement of informal systems and community based welfare agencies in the case, protection, treatment, development and rehabilitation of such juveniles was felt necessary leading to the enactment by the Parliament in the Thirty Seventh Year of the Republic of India a law aimed at achieving various objects, including the objective of bringing the operation of the juvenile justice system in the country. This Act has put the police, the executive and the Court in its scheme in such a way that each in its role, is made responsible to ensure that a child, is not put into the association of any known criminals or put to any moral danger. This Act has put the police, the executive and the Court in its scheme in such a way that each in its role, is made responsible to ensure that a child, is not put into the association of any known criminals or put to any moral danger. Section 18(1) of the Act 53 of 1986 enjoins that 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 Juvenile Court, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, be released on bail with or without surety 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 danger or that his release would defeat the ends of justice. 13. Now turning back to the case, a perusal of the order shows that the District Magistrate’s satisfaction regarding necessity of petitioner’s detention is based merely on police reports. It appears that the District Magistrate proceeded to pass the detention order on the basis of the police report without scrutinising the provisions of law. The petitioner is stated to be under 18 years, so even if he is found guilty of the offence for which he has to be tried, he could not be sent to jail in view of provisions of the Act. On perusal of the legal provisions extracted above with their Amended Act, it clearly postulates that in case of child and juveniles (minor offenders below 18 years of age) provisions of Juvenile Justice Act shall apply irrespective of other enactments so far it relates to detention, prosecution penalty or sentence of imprisonment of a juvenile. It emphatically lays down that no juvenile can be detained in jails under the provisions of National Security Act. It emphatically lays down that no juvenile can be detained in jails under the provisions of National Security Act. In case any recommendation or complaint is made under National Security Act, 1980 and during inquiry or thereafter it appears to the Court not Juvenile Justice Board that the accused or detenue is juvenile below 18 years, the inquiry Court at first instance, at any stage of inquiry, make an inquiry and then shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be. If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect. The acts or omissions constitute an offence punishable under any other Central or State Act then notwithstanding anything contained in any law for the time being in force, the offender being juvenile of such offence shall be liable to punishment only under the Juvenile Justice (Protection and Care) Act. In cases of juveniles, the District Magistrate is not empowered as per provisions under Juvenile Justice (Protection and Care) Act, 2000 to pass an order of detention in jail in exercise of his powers under National Security Act. In that eventually, he shall certainly follow the provisions as mentioned above. 14. Thus, in the light of the above discussions and on paying attention to the documentary evidence placed by the petitioner, this Court is of the opinion that the petitioner was a juvenile on the date of passing the order of detention under section 3(2) of the Act. 15. In the result, the petition is allowed. The order of detention dated 7th April, 2012 on the file of the 2nd respondent is set aside. It shall however, be open to the respondents to take the petitioner in such custody of a guardian or home, which the Juvenile Justice Act permits.