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2014 DIGILAW 4 (JK)

Jaspreet Singh v. State Of J&K

2014-01-10

BANSI LAL BHAT

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1. Petitioners Jaspreeet Singh and Amandeep Singh figure as accused in case titled State v. Jaspreet Singh and Anr. facing trial for charge under Sections 302/341/34 of RPC before learned Sessions Judge Jammu. Their plea for enlargement on bail was turned down by learned Sessions Judge inspite of finding recorded to the effect that both of them were below 18 years of age when the offence is alleged to have been committed. Unfazed by declining of bail at the hands of learned Sessions Judge, the petitioners have approached this Court through the medium of instant petition filed under Section 498 of Cr.P.C for grant of bail. 2. It is averred in the petition that during the pendency of Challan, petitioners filed an application before learned Sessions Judge claiming bail on the ground that they were juveniles at the time of alleged occurrence which led to an inquiry in which it was proved that the petitioners were below 18 years of age at the time of alleged occurrence. However, learned Sessions Judge rejected the bail plea by holding that the petitioners could not be given benefit under Juvenile Justice Act 2013. It is further averred in the petition that Juvenile Justice Act 2013 has been enforced in the State and petitioners are entitled to bail. It is pointed out that learned Sessions Judge has omitted to consider provisions of Section 2(m)(n), Sections 8, 13 and 21 of the Juvenile Justice (Care and Protection of Children) Act 2013 which, when read together explicitly suggest that even if a person was not a juvenile under the old Act, he had to be treated as juvenile after coming into force of the new Act. It is further pointed out that in terms of Section 21 of the new Act the definition of juvenile would apply even if such person ceased to be so on or before the date of commencement of new Act. Thus, petitioners claim to be entitled to statutory right of bail in view of law laid down by Hon'ble Apex Court in Hari Ram v. State of Rajasthan & anr. reported in 2009 (2) RCR 878 SC and Amit Singh v. State of Maharashtra reported in 2011 (3) RCR 859 SC. 3. Notice of the motion was served upon learned Additional Advocate General. reported in 2009 (2) RCR 878 SC and Amit Singh v. State of Maharashtra reported in 2011 (3) RCR 859 SC. 3. Notice of the motion was served upon learned Additional Advocate General. As the petition involved interpretation of provisions of the Juvenile Justice (care and protection of Children) Act 2013 (Herein after referred to as `the Act'), the petition was treated as revision. Opportunity was afforded to petitioners as also the State to address the Court. 4. The Jammu and Kashmir Juvenile Justice Act, 1997 (hereafter referred to as "JJ Act") which repealed Jammu and Kashmir Children Act, 1970 and other laws in force dealing with juveniles came to be enforced on 01.04.1998. It made provisions for the care protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of matters relating to delinquent juveniles. Under this Act, juvenile was defined as a boy who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years. Delinquent juvenile was defined as a juvenile who has been found to have committed an offence. From the scheme of the Act, it appears that the juveniles were broadly classified into two classes; i) Neglected juveniles which included abandoned, shelter-less, helpless, destitute, truants, school dropouts, street children, beggars, brothel dwellers or associated with prostitutes or brothel dwellers, uncared children, children whose parents are guardians were incapacitated and the victims of abuse and exploitation. ii) Delinquent juveniles who have been found to have committed an offence. 5. The JJ Act provided for constitution of juvenile welfare boards to deal with neglected juveniles. It also provided for constitution of juvenile courts to deal with delinquent juveniles. However, the JJ Act, like previous legislations on the subject of juveniles, did not achieve the desired results as the institutions required to be set up under the Act did not come up. It was an unfortunate state of affairs. In absence of constitution of Juvenile Welfare Boards and Juvenile Courts powers were being exercised by the Judicial Magistrates of 1st Class to deal with the neglected juveniles as well as delinquent juveniles. Juvenile homes, special homes and observation homes for perception of juveniles were not set up. No provision was made for aftercare of the rehabilitated juveniles. In absence of constitution of Juvenile Welfare Boards and Juvenile Courts powers were being exercised by the Judicial Magistrates of 1st Class to deal with the neglected juveniles as well as delinquent juveniles. Juvenile homes, special homes and observation homes for perception of juveniles were not set up. No provision was made for aftercare of the rehabilitated juveniles. The State was lagging behind in updating the legislation to bring it on a par with the central legislation which enacted and adopted the Juvenile Justice (Care and Protection of Children) Act, 2000 introducing changes of far reaching consequence. At long last, the State of Jammu and Kashmir rose to the occasion and enacted Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 consolidating and amending the law relating to juveniles in conflict with law and children in need of care and protection. The Act which is pari materia with the Central Act of 2000 with subsequent amendments introduced in 2006, was enforced in the State with effect from 22nd July, 2013. The Act defines "juvenile" or "child" as a person who has not completed eighteenth year of age. This is a complete departure from the definition of juvenile in JJ Act of which defined a female child below eighteen as a juvenile but excluded a male child above sixteen years of age from the definition of juvenile. The Act, has, thus removed the disparity insofar as gender is concerned and the relevant age for determining whether a child, male or female, is a juvenile, is eighteen years. Apart from it, the term `delinquent juvenile' has been substituted by `juvenile in conflict with law' which has been defined as under: 2.(n). "Juvenile in conflict with law' means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence; On a plain reading of the definition of `juvenile in conflict with law' it is manifestly clear that age on the date of commission of offence is relevant for determining the status of a person as a juvenile offender. A person not having completed eighteenth year of age as on the date of commission of offence would be a `juvenile in conflict with law'. A person not having completed eighteenth year of age as on the date of commission of offence would be a `juvenile in conflict with law'. Explanation appended to Section 21 of the Act makes it amply clear that in all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a `juvenile in conflict with law' in any Court the determination of juvenility shall be in terms of Clause (n) of Section 2 even if the juvenile ceases to be so on or before the date of commencement of the Act and the provision of the Act shall apply as if the said provisions had been in force when the alleged offence was committed. The Act was enforced on July 22, 2013 while the offence in the instant case was allegedly committed on July 30, 2011. In terms of provisions of Section 21 of the Act the relevant date for determining the status of petitioners as `juveniles in conflict with law' would be the date of commission of offence, i.e., 30.07.2011 and not the date of enforcement of the Act, i.e., 22.07.2013 wrongly noted as 22.03.2013 by learned Sessions Judge in the impugned order. The finding arrived at by learned Sessions Judge in regard to the status of petitioners is, on the face of it, erroneous. Same cannot be supported. Learned Sessions Judge failed to notice that provision engrafted in explanation to Section 21 of the Act did not exist in Central Act of 2000 when Constitution Bench of the Hon'ble Apex Court held in Partap Singh v. State of Jharkhand & anr. reported in (2005)3 SCC 551 that the benefit of juvenility cannot be extended to the person who has completed eighteenth year of age as on 01.04.2001, i.e., the date of enforcement of the Act. The applicability of the Act was clarified by Amending Act No. 33 of 2006 (Central) which provided that the benefit of juvenility shall be extended even to juvenile who had completed the age of 18 years on 01.04.2001 and the Act shall have retrospective effect. The explanation added to Section 20 of the Central Act of 2000 (corresponding to Section 21 of the State Act of 2013) is pari materia with the explanation incorporated in Section 21 of the State Act. The explanation added to Section 20 of the Central Act of 2000 (corresponding to Section 21 of the State Act of 2013) is pari materia with the explanation incorporated in Section 21 of the State Act. Learned Sessions Judge landed in error by failing to notice the change in letter of law with the introduction of explanation to Section 20 of the Central Act of 2000 carried out subsequent to the Constitution Bench ruling of the Hon'ble Apex Court in Partap Singh's case (Supra). He also failed to notice that the subsequent rulings of the Hon'ble Apex Court in Hari Ram v. State of Rajasthan & Anr. reported in 2009(2) RCR (Criminal) laying down that all accused between the age group of 16 to 18 years convicted or still facing trial would be treated as juvenile under Central Juvenile Act of 2000 which has retrospective effect and Amit Singh v. State of Maharashtra & Anr. reported in 2011(3) RCR (Criminal) laying down that the accused was below 18 years on the date of commission of offence and raised the question of juvenility before Hon'ble Supreme Court for the first time was entitled to benefit of juvenility, were noticed by the Hon'ble Apex Court in these decisions. In this regard it would be appropriate to reproduce Para 9 and 10 of the judgment in Amit Singh's case (Supra): "9) The relief prayed for in this writ petition is squarely covered by the law laid down in the case of Hari Ram (supra) whereby this Court had occasion to consider the question elaborately regarding applicability of the Act. This Court considered the decision of the Constitution Bench in the case of Pratap Singh v. State of Jharkhand & Anr., (2005) 1 RCR (Criminal); 836 : 2005 (1) Apex Criminal 358: (2005)3 SCC 551 , wherein this Court formulated two points for consideration: A. Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the Court/Competent Authority? B. Whether the Act of 2000 will be applicable in the case a proceeding is initiated under the 1986 Act 9 and pending when the Act of 2000 was enforced with effect from 01.04.2001? 6. B. Whether the Act of 2000 will be applicable in the case a proceeding is initiated under the 1986 Act 9 and pending when the Act of 2000 was enforced with effect from 01.04.2001? 6. The Constitution Bench in the above case held that the benefit of juvenility cannot be extended to the person who has completed the 18 years of age as on 01.04.2001 i.e. the date of enforcement of the Act. In the background of this judgment, the Legislature brought Amendment Act 33/2006 proviso and explanation in Section 20 to set at rest doubts that have arisen with regard to the applicability of the Act to the cases pending on 01.04.2001, where a juvenile, who was below 18 years of age at the time of commission of the offence, was involved. The explanation to Section 20 which was added in 2006 makes it clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of clause (l) of Section 2, even if juvenile ceased to be a juvenile on or before 01.04.2001, when the Act came into force and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Board concerned for passing sentence in accordance with the provisions of the Act. 10) After the judgment of the Constitution Bench in Pratap Singh (supra), this Court in the case of Hari Ram (supra) considered the above question of law in the light of Amendment Act 33 of 2006 in the provisions of the Act which substituted Section 2(l) to define a "juvenile in conflict with law" as 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. 7. 7. Learned Sessions Judge, on the basis of enquiry conducted to determine the status of petitioners in regard to their plea of juvenility came to definite conclusion that both the petitioners were above 16 years of age on the date of commission of offence. He found that petitioner Jaspreet Singh was 16 years and 6 months old on the date of commission of alleged offence while petitioner Amandeep Singh was 16 years 9 months and 12 days old when the alleged occurrence took place. Thus, both the petitioners satisfied the definition of `juvenile in conflict with law" as defined in Section 2(n) of the Act and in terms of provisions of explanation appended to Section 21 of the Act the determination of juvenility had to be done with reference to Clause (n) of Section 2 of the Act even if they ceased to be so on or before 23.07.2013 when the Act was enforced. Thus, the mere fact that they had crossed age limit of 18 years on the date of commission of offence did not divers the petitioners of their status as juvenile in conflict with law". 8. The findings recorded by learned Sessions Judge holding the petitioners not to be juveniles being erroneous is, accordingly, set aside. 9. Now coming to the bail, be it seen that in view of the provisions engrafted in Section 13 of the Act, which has an overriding effect and makes it imperative upon the competitive Court to release a "juvenile in conflict with law", irrespective of nature of offence unless the Court is of opinion that such release would bring the juvenile into association with known criminals or expose him to moral, physical or physiological danger or that his release defeat the ends of justice and also bearing into mind that the petitioners are not alleged to be belonging to any gang or alleged to be indulging in organized crime or alleged to have been the perpetrators of victims of abuse or exploitation, I find no cogent reason to decline the bail to petitioners. 10. In view of the fore going discussion, petitioners are directed to be enlarged on bail on their furnishing surety and personal bonds in an amount of Rs.1.00 Lac (Rupees One Lac) each to the satisfaction of learned Sessions Judge Jammu subject to imposition of following conditions: 1. 10. In view of the fore going discussion, petitioners are directed to be enlarged on bail on their furnishing surety and personal bonds in an amount of Rs.1.00 Lac (Rupees One Lac) each to the satisfaction of learned Sessions Judge Jammu subject to imposition of following conditions: 1. That the petitioners shall remain under the care and protection of their parents/guardians who will keep an eye on their activities and in case they notice any change or aggression in their behavior, they will report to the learned Trial Court for appropriate orders; 2. That the petitioners shall not try to establish any contact with the witnesses cited in the challan in order to influence them in any manner whatsoever. 3. That they shall not leave territorial jurisdiction of the learned Trial Court without expressed written permission from the learned Trial Court. 11. Disposed of accordingly.