Master Divesh Sharma, Through His Guardian & Fatehr Pawnesh Sharma v. State Of Himachal Pradesh
2021-08-13
SURESHWAR THAKUR
body2021
DigiLaw.ai
JUDGMENT Sureshwar Thakur, J. - Through the instant petition, the juvenile in conflict with law, challenges an order, made under Section 14 of the Juvenile Justice Act, 2015, by the Juvenile Justice Board, Kangra at Dharamshala, District Kangra, H.P. Through the impugned order, the Juvenile Justice Board, made the hereinafter extracted order: "18. Thus applying the principles laid down in Neeraj and others vs State of Haryana, (2005) 4 RCR(Cri) 71 and in X Minor (through his elder brother vs. State Criminal Revisions petition No. 24/2017 decided on 15.11.2011, and taking into consideration the fact that the provisions of Section 14 of the Junvenile Justice Act are directory and not mandatory and further taking into consideration the fact that the inquiry in the present case especially during the examination of the complainant on 4.6.2019 was delayed due to the non-appearance of the juvenile and further taking into consideration the seriousness of the allegations leveled against the juvenile, this Board does not deem it appropriate to terminate the inquiry pending adjudication before this Board. As far as the interest of the juvenile is concerned, the same can be looked into by the Board by speeding the inquiry and in the light of above discussion, the present application is dismissed". For adjudicating the import of the challenges made to the afore impugned order, it becomes incumbent, upon, this Court, to extract the mandate, carried in Section 14 of the Juvenile Justice (Care and Protection of Children ) Act, 2015,provisions whereof are extracted hereinafter: "14. Inquiry by Board regarding child in conflict with law: (1)Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under Sections 17 and 18 of this Act. (2) The inquiry under this section shall be completed within a period of four months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of two more months by the Board, having regard the circumstances of the case and after recording the reasons in writing for such extension.
(2) The inquiry under this section shall be completed within a period of four months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of two more months by the Board, having regard the circumstances of the case and after recording the reasons in writing for such extension. (3) A preliminary assessment in case of heinous offences under Section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board. (4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated: PROVIDED that for serious or heinous offences, in case the Board requires further extension of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate, or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded in writing.
(5)The Board shall take the following steps to ensure fair and speedy inquiry namely: (a)At the time of initiating the inquiry, the Board shall satisfy itself that the child in conflict with law has not been subjected to any ill-treatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such ill-treatment; (b) In all cases under the Act, the proceedings shall be conducted in simple manner as possible and care shall be taken to ensure that the child, against whom the proceedings have been instituted, is given child friendly atmosphere during the proceedings; (c) Every child brought before the Board shall be given the opportunity of being heard and participate in the inquiry; (d)Cases of petty offences, shall be disposed of by the Board through summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974) (e) Inquiry of serious offences shall be disposed of by the Board, by following the procedure, for trial in summons cases under the Code of Criminal Procedure, 1973 (2 of 1974) (f) Inquiry of heinous offences; (i) For child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e) (ii) For child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed under Section 15." A circumspect reading of, the mandate carried in sub-section (2) of Section 14 of the Act, does, unfold that the inquiry under Section 14 of the Act, shall become mandatorily concluded, by the Board concerned, within four months, from the date of production, of, the juvenile in conflict with law, before the Juvenile Justice Board. However, the afore period of four months, is, extendable for a maximum period of two months, by the Board concerned, it having regard to the circumstances of the case, and, after its recording the reasons for its according the said extension. Furthermore, the mandate carried in sub-section (4) of the Act, makes a trite underlining, that if the inquiry enshrined in sub-section (2) of Section 14 of the Act, appertains to petty offences, and, it remains not concluded, evenafter the extended period, as mentioned in sub-section (2) of Section 14 of the Act, thereupon, proceedings shall stand terminated.
Furthermore, the mandate carried in sub-section (4) of the Act, makes a trite underlining, that if the inquiry enshrined in sub-section (2) of Section 14 of the Act, appertains to petty offences, and, it remains not concluded, evenafter the extended period, as mentioned in sub-section (2) of Section 14 of the Act, thereupon, proceedings shall stand terminated. The learned counsel for the petitioner, contends that since the juvenile in conflict with law, allegedly committed a petty offence, punishable under Section 304-A of the IPC, and, when readings of the definition assigned to petty offences, as carried in sub- clause (45) of Section 2 of the Act, provisions whereof are extracted hereinafter: "(45) petty offences" includes the offences for which the maximum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment upto three years." Does vividly unfold, that it appertains to those offences, in respect whereof, the maximum prescribed punishment under the Indian Penal Code, or any other law, is, upto three years of imprisonment, and, when the sentence(s) of imprisonment, as imposable upon the petitioner juvenile in conflict with law, is, hence upto three years. Therefore, he argues that since the Juvenile in conflict with law, committed a petty offences, thereupon, yet the Juvenile Justice Board, rather not within the extended period of time, as mandated in sub-Section (2) of Section 14 of the Act, concluding the proceedings. Consequently, the breach of the mandate, borne in sub-Section (4) of Section 14 of the Act, comes to the forefront, and, the benefit thereof was extendable to the Juvenile, rather than the Board concerned making the impugned order. However, for the reasons to be assigned hereinafter, this Court, does not, deem it fit to agree with the afore made submissions. Even though, statutory responsibility(ies) (supra) are cast upon the Board concerned, and, also are, amenable for being completely complied with, and also, when there are prima-facie blatant departures or breaches thereof, yet the, impugned order, would become well-founded, (i) only if the material, as, existing on record, hence, suggests that there were no willful abandonment(s) of care and caution(s) by the Juvenile Justice Board, inasmuch as through its making un-necessary adjournments, of the case concerned.
If so, it would become concluded that the Board concerned did not willfully stall the operation, of, the mandate (supra), as carried in Section 14 of the Act. A thorough reading of the material on record, reveals that there are/is no willful departure(s) or breaches, and, of of mandatory provisions (supra), and also, when concomitantly rather the Juvenile Justice Board concerned had not untenably shed its statutory responsibilities, rather when the relevant material on record, is, suggestive, that the juvenile in conflict with law, for ensuring his becoming purveyed the statutory benefits (supra), his taking to, through a stratagem deployed, by him, through his counsel, or through his representatives, hence causing un-necessary prolongation(s) of the proceedings. Therefore, this Court proceeds to rather validate the impugned order. 2. The reasons (supra) are founded upon the notice of accusation being put on 2.5.2019 to the juvenile in conflict with law. On the afore date, he did not plead guilty, and, claimed inquiry. The matter was listed on 1.6.2019, for the recording, of, the testimonies, of PWs, , however, no PWs were present, on the afore date, as service upon them was not complete. On 4.6.2019, the juvenile in conflict with law was not present, however, one PW was present, but his statement could not be recorded, given the juvenile in conflict with law, becoming given an exemption from personal appearance. On 1.7.2019, the coram of the Board was not complete. On 5.8.2019, an application for exemption, from personal appearance, of the juvenile, in conflict with law, was made, which became allowed. On 2.9.2019, the coram of the Juvenile Justice Board was not complete, hence the matter was listed on 5.10.2019, for proper orders. On 5.10.2019, an application seeking exemption from personal appearance of the juvenile, on behalf of his counsel, was moved and became allowed. Again on 1.11.2019, an application was moved on behalf of the juvenile, in conflict with law, was allowed. On 5.10.2019, again an application for exemption form personal appearance was moved, which was allowed. On 5.8.2019, hence after elapse of more than 4 months, from the first personal appearance on 1.2.2019, of the juvenile in conflict with law, before the Juvenile Justice Board, an application became cast, borne under Section 14 of the Act, before the Juvenile Justice Board. However, upon the afore made application, the impugned order, became rendered on 4.1.2020.
On 5.8.2019, hence after elapse of more than 4 months, from the first personal appearance on 1.2.2019, of the juvenile in conflict with law, before the Juvenile Justice Board, an application became cast, borne under Section 14 of the Act, before the Juvenile Justice Board. However, upon the afore made application, the impugned order, became rendered on 4.1.2020. Though, as stated (supra) there are departures, by the Juvenile Justice Board concerned, from the mandate carried in Section 14 of the Act. However, the validity of the purported departures, are to be tested, from, the date of the first appearance of the juvenile in conflict with law, before the board concerned, and, upto his moving an application, whereons, the impugned order became passed. Therefore, and, therefroms, this Court concludes, that the apposite departures appertaining to the afore spell are neither willful nor are made to stall the operation of the statutory mandate, as the displays (supra), in the order sheet (supra), as appertaining to the afore spell, reveal that there were rather omissions on the part of the Juvenile in conflict with law, to, record his personal appearance(s), before the Board concerned, respectively, upon the date assigned for the notice of accusation, being put to him, and, for the statements, of the PWs, being recorded. Consequently, it appears, that the counsel for the Juvenile in conflict with law, has despite occurrences of the delays (supra) rather attributable to him or the juvenile in conflict with law, hence through a stratagem deployed by him, rather strived to capitalize, upon the mandate (supra), carried in Section 14 of the Act. Therefore, if the contention of the learned counsel for the petitioner, is, accepted, this Court, is, of the considered view, that the salutary purpose, behind the mandate carried in statutory provisions (supra) would become ill-validated. Even otherwise, if this Court, validates the endeavor of the petitioner, it would be counter-productive, inasmuch as the victim is concerned, conspicuously, when as aforestated, the, drawing of capitalization, upon the mandate (supra) by the juvenile, is, aptly pureyable to him, only upon his not delaying proceedings, whereas, is un-available to him, upon mis-advises to him, by his counsel, to prolong the proceedings, through his seeking repeated exemptions, from his personal appearance(s) before the Board concerned, hence causing frustration of the mandate (supra).
Consequently, making balance(s) interse the rights of the victim, and, of, the juvenile in conflict with law, this Court deems it unfit to invalidate the impugned order. 3. Consequently, this Court finds no merit in the petition and the same is dismissed. The impugned order is affirmed and maintained. Also, the pending application(s),if any, are disposed of. No costs.