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2018 DIGILAW 115 (JK)

Faisal Fayaz Malik v. State of J&K

2018-02-27

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. 1. Instant petition has been filed under Section 52 of the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 which clothes this Court with power to derive satisfaction as to legality or proprietary of the order passed under the Act. 2. Petitioner along with three other minor boys are allegedly involved in commission of offence punishable under Section 363, 376 and 109 RPC as such were taken into custody in connection with case registered as FIR No. 01/2018 Police Station Kulgam. On their production before the Board under the Juvenile Justice Act i.e. Chief Judicial Magistrate, Kulgam who is discharging such powers, motion has been laid on their behalf under section 13 of the said Act. Learned Chief Judicial Magistrate was not convinced to release them on bail as could be done in terms of Section 13(1) therefore invoking powers under Section 13(2) of the Act has directed them to be kept in observatory home. 3. Learned Magistrate was convinced that all the accused are juveniles, while relying on the law laid down by the Hon'ble Apex Court Om Prakash vs. State of Rajasthan and Another, (2012) 5 SCC 201 has rightly observed that the parents of the juveniles in conflict with the law have lost control over them that is why they have committed such a heinous crime. Such type of juveniles in conflict with the law needs proper counseling which can be provided to them in juvenile home. 4. The Act has a laudable object of protecting innocent minors who in effect on the basis of material collected are found to have been innocent law breakers but where the juvenile in conflict with law have committed heinous offence extra care is required to be taken that is the mandate of the judgment as referred to above. It shall be quite advantageous to quote following portion from para 23 of the referred judgment: ".....the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor. It shall again be relevant to quote following portion from Para 33: "......Statutory protection of the juvenile justice act is meant for minors who are innocent law breakers and not accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him. It shall also be relevant to quote para 38: "The juvenile Justice Act which is certainly meant to treat a child accused with care and sensitivity offering him a chance to reform and settle into the mainstream of society, the same cannot be allowed to be used as a ploy to dupe the course of justice while conducting the trial and treatment of heinous offence. This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged." 5. Given the magnitude of the offence, the manner and method adopted as is clearly reflected in the order impugned four boys including the petitioner with matured brain have allegedly arranged a vehicle, forcibly put two young girls into it and took them to village Bolus where they kept them in an under construction building and administrated them medicine and then allegedly raped them. Such juveniles require proper reformation and counseling. The approach adopted by the learned Magistrate is quite consistent with the object of the Act. No illegality or impropriety is noticeable so as to persuade this Court to exercise powers under Section 52 of the Act in favour of the petitioners, accordingly petition is dismissed. Dismissal of the petition shall not operate as a bar to the Magistrate to consider the release when circumstances so demand.