Munna & Ors Vs. State of U.P.
& Ors [1982] INSC 5 (19 January 1982)
BHAGWATI, P.N.
BHAGWATI, P.N.
PATHAK, R.S.
CITATION: 1982 AIR 806 1982 SCR (3) 47 1982
SCC (1) 545 1982 SCALE (1)29
ACT:
Constitution of India 1950, Article
32-Juvenile undertrial prisoners-Ill-treatment and exploitation in jail-
Newspaper report-Writ petition filed seeking relief- Allegations denied by
jailor-Allegations held serious-Writ petition cannot be summarily dismissed.
Crime and Punishment-Juvenile
delinquency-Inhibition against sending children to jail-Person under sixteen
years of age-Not to be sent to jail-Detention in Children's Home or `Place of
safe'-Necessity of-Duty of Magistrates.
Uttar Pradesh Children Act 1951, ss. 2(9),
29, 30, 32 and 33 & Uttar Pradesh Children's Rules 1962, Rules 14 and
15. Child-Arrested for Offence-Not released
on bail-Cannot be sent to jail-Detention in `place of safety' or Children's
Home-Statutory requirement-Government to implement provisions of Act-Setting up
places for detention for children-Necessity of.
HEADNOTE:
There writ petitions were filed alleging on
the basis of a news report in the Indian Express dated 2nd December, 1981 that
one Mr. Madhu Mehta had visited the Kanpur Central Jail incognito and found
several juvenile undertrial prisoners lodged there even though there was a
Children's Home in Kanpur, and that these juvenile prisoners were being
sexually exploited by adult prisoners. Notice was issued to the State of Uttar
Pradesh.
In the meanwhile a writ petition was filed in
the High Court of Allahabad seeking relief in respect of these juvenile
undertrial prisoners. The High Court decided to investigate and by its order
dated 18th December, 1981 directed the Sessions Judge of Kanpur to visit the
Jail and to report whether any detenu below the age of 16 years was detained,
whether any detenu below the age of 21 years was being kept under fetters, and
whether they were subjected to torture by adult prisoners as alleged in the
writ petition.
The Sessions Judge visited the Jail on 21st
December, 1981 and submitted his report dated 22nd December, 1981 to the High
Court. The report stated that there were admittedly seven juvenile undertrial
prisoners below the age of sixteen in the jail and that one Des Raj was
transferred to the Children's Home on 19th December, 1981 and that the rest of
the prisoners happened to be released on different dates between 7th and 16th
December, 1981 before the order of the High Court on 18th December, 1981. The
Sessions Judge in Annexure `A' to his report gave the names, ages and other
particulars of 84 undertrial prisoners who according to the jail report were
above 16 but below 21 years of age and stated that he had nine from among these
undertrial prisoners examined by the Chief Medical Officer and appended the
report as Annexure `B'. He further reported about the general ignorance of the
provisions of the Uttar Pradesh Children's Act, 1951 and stated that he had
instructed the Jail Superin- 48 tendent and the Jail Doctor that in case of any
doubt about the age of an undertrial prisoner they should instead of relying
upon the police papers with regard to age, obtain the opinion of the Chief
Medical Officer.
In the writ petitions, it was
HELD : 1. The allegations made in the writ
petition are serious. If correct they disclose to what utter depth of depravity
man can sink. The Court cannot abdicate its constitutional duty of ensuring
human dignity to the juvenile undertrial prisoners and summarily throw out the
writ petitions merely on the basis of a denial made by the Assistant Jailor.
The instant case must be investigated not only in the interest of fair
administration of justice but also for enforcing the basic human rights of
undertrial prisoners who are alleged to have been ill-treated. [53 D-E]
2. Juvenile delinquency is, by and large, a
product of social and economic mal-adjustment. Even if it is found that
juveniles have committed any offence they cannot be allowed to be mal-treated.
They do not shed their fundamental rights when they enter the jail. [53 E-F]
3. The object of punishment being
reformation, no social objective can be gained by sending juveniles to jails
where they would come into contact with hardened criminals and lose whatever
sensitivity they may have to finer and nobler sentiments. That is the reason
why Children Acts are enacted by States all over the country and the Uttar
Pradesh Legislature has also enacted the Uttar Pradesh Children Act 1951. [53
F-G]
4. The inhibition against sending a child to
jail does not depend upon any proof that he is a child under the age of 16
years but as soon as it appears that a person arrested is apparently under the
age of 16 years this inhibition is attracted. The reason for this inhibition
lies in the solicitude which the law entertains for juveniles below the age of
16 years. [55 H, 56 A]
5. The law is very much concerned to see that
juveniles do not come into contact with hardened criminals and that chances of
reformation are not blighted by contact with criminal offenders. The law throws
a cloak of protection round juveniles and seeks to isolate them from criminal
offenders, because the emphasis placed by the law is not on incarceration but
on reformation. [56 B]
6. When a child is arrested for an offence
and is not released on bail, he cannot be sent to jail but he must be detained
in a `place of safety' as defined in section 2 sub- section (9) of the Act. The
manner in which a child can be detained is prescribed in the Uttar Pradesh
Children's Rules, 1962. Rule 14 provides that except as provided in the Act,
where a child having been arrested is not released on bail under section 23,
the officer-in-charge of the Police Station shall cause him to be detained in a
`place of safety' until he can be brought before a court, and Rule 15 says that
except as provided in the Act where a child is not released on bail, the court
shall on remanding or committing a child for trial order him to be detained in
a `place of safety' pending the disposal of the proceedings. [55 G-H, 55 D-F]
7. How anxious is the law to protect young
children from contamination with hardened criminals is apparent from section 27
of the Act which provides 49 subject only to a few limited and exceptional
cases referred to in the proviso, that notwithstanding anything contained to
the contrary, no court can sentence a child to death or transportation or
imprisonment for any term or commit him to prison in default of payment of
fine. Even where a child is convicted of an offence, he is not to be sent to a
prison but he may be committed to an approved school under section 29 or be
either discharged or committed to suitable custody under section 30. Even where
a child is found to have committed an offence of so serious a nature that court
is of opinion that no punishment which under the provisions of the Act it is
authorised to inflict, is sufficient section 32 provides that the offender
shall not be sent to jail but shall be kept in safe custody in such place or
manner as it thinks fit and shall report the case for the order of the State
Government. Section 33 sets out various methods of dealing with children
charged with offences. But in no case except the exceptional ones mentioned in
the Act, a child can be sent to jail.
8(i) It is impressed upon the magistrates in
the State of Uttar Pradesh and also in the other parts of the country that
where the Children Acts are in force they must be extremely careful to see that
no person apparently under the age of 16 years is sent to jail but he must be
detained in a Children's Home or other `place of safety'. (ii) It is absolutely
essential in order to implement the provisions of the Uttar Pradesh Children
Act, 1951 that Children's Home or other suitable places of safety are set up by
the Government for the purpose of providing a place of detention for children
under the age of 16 years. [56 C-H, 57 A] The Court also gave the following
directions :
(1) Since the Assistant Jailor has denied the
visit of Shri Madhu Mehta, it is necessary that Shri Madhu Mehta should be
impleaded as a party respondent to the writ petitions so that he can state an
oath whether he visited the Jail, and if so what were the facts which he
observed.
[53 B-C] (2) The Superintendent of the Jail
to inform by a proper affidavit as to what were the circumstances in which the
six children whose names are given at serial numbers 2 to 7 in Annexure `B'
were released and also produce the orders of the Magistrate directing their
release. He is also to inform why Des Raj was detained in the Jail from 7th
March, 1981 though he was admittedly even on the basis of the jail records a
child below 16 years of age and how it happened that suddenly on 19th December,
1981 an order was obtained for transferring him to the Children's Home. The
State of Uttar Pradesh and the Superintendent of the Jail will explain why an
order for transfer of Des Raj to the Children's Home could not be obtained
earlier. [54 C-E] (3) The Registrar of the High Court to forward immediately
copies of all Annexures to the Report of the Sessions Judge. [54 F] (4)
According to the report of the Sessions Judge there were seven juvenile
undertrial prisoners below the age of 16 years. Out of these six were released
prior to the visit of the Sessions Judge, and they could not, therefore, be
interviewed. Shri O.P. Garg, Secretary of the Uttar Pradesh State Board of
Legal Aid and Advice to immediately contact these six children after finding
out their addresses either from the court proceedings or from the jail records
and take 50 their statements with a view to ascertain what was the treatment
meted out to them in the jail and whether any of them was mal-treated. The
report to be submitted on or before 27th January, 1982. [53 G-H, 54 A-B]
ORIGINAL JURISDICTION : Writ Petition Nos.
9133, 8974 of 1981 & 6 of 1982.
Under article 32 of the Constitution of
India.
Krishan Mahajan for the Petitioner in WP.
6/82.
Miss Lily Thomas for the Petitioner in WP.
8974/81.
Mrs. K. Hingorani for the Petitioner in WP.
9133/81.
R.K. Bhatt for Respondent in all WPs.
The Order of the Court was delivered by
BHAGWATI, J. These three writ petitions come before us on notice to the State
of Uttar Pradesh. They seek relief in respect of certain juvenile undertrial
prisoners in the Kanpur Central Jail. The allegations in respect of these juvenile
undertrial prisoners are that though there is a Children's Home in Kanpur,
these juvenile undertrial prisoners who are, according to the allegations in
the writ petitioners, more than 100 in number are lodged in the Kanpur Central
Jail instead of being sent to the Children's Home and they are being sexually
exploited by the adult prisoners. These allegations are based on a news report
published in the issue of the Indian Express dated 2nd December, 1981 where a
reference is made to a visit of Shri Madhu Mehta of the Hindustani Andolan to
the Kanpur Central Jail incognito. Shri Madhu Mehta, according to this news
report, found that "young boys of 10 to 14 years" were being
"supplied to convicts for their delectation" and a boy named Munna
whom he met, was in agony because "after the way he was used, he was
unable to sit." When these three writ petitions based on the news report
came up for admission, it was not possible to state whether these allegations
contained in the news report were correct or not. But if they were correct,
they disclosed an extremely distressing state of affairs and they were
sufficient to shock the conscience of the court. The Court, therefore, issued
notice to the State of Uttar Pradesh in each of these three writ petitions.
But, it appears that, in the meanwhile, a writ petition bearing number 14645 of
1981 was also filed in the High Court of Allahabad by an organisation called 51
Human Rights Organisation seeking relief in respect of these juvenile
undertrial prisoners and on this writ petition, the High Court of Allahabad
rightly activated itself and decided to investigate into the matter and with
that end in view, made an order dated 18th December, 1981 requesting the senior
most Sessions Judge of Kanpur to visit the Kanpur Central Jail and to make a
report on the following points:
1. Whether there is any detenu below the age
of 16 years who is being detained in the Distt. Jail, Kanpur ? if so, the names
of such detenus and the offences in connection with which they are being detained
be indicated.
2. Whether any detenu below the age of 21
years is being kept under fetters or was being kept under fetters ?
3. Whether any such person is being subjected
to torture of the nature mentioned in the petition ?
4. Whether such inmates of the prison are
being provided with proper medical facilities ? The Sessions Judge accordingly
visited the Kanpur Central Jail on 21st December, 1981 and submitted his Report
dated 22nd December, 1981 to the High Court of Allahabad. We do not propose to
consider this Report in detail at this stage, but suffice it to state that
according to this Report, there were admittedly seven juvenile undertrial
prisoners below the age of 16 in the Kanpur Central Jail, but, curiously
enough, barring one Deshraj who was transferred to the Children's Home Kanpur
on 19th December, 1981, all the rest happened to be released on different dates
between 7th and 16th December, 1981, before the order made by the Allahabad
High Court on 18th December, 1981. It is rather interesting to note that the
news report in the issue of the Indian Express was published on 2nd December,
1981 and writ petition No. 8974/81 which is the first of these three writ
petitions was filed by Miss Lily Thomas on 3rd December, 1981 and these
juvenile undertrial prisoners were released within a few days of the
publication of the news report and the filing of the writ petition. even so far
as Deshraj is concerned, though he was admitted in the Kanpur Central Jail on
7th March, 1981 he was not transferred to the Children's Home Kanpur until 19th
December, 1981 after the order was made by the Allahabad High Court. The
consequence of release of these undertrial juvenile prisoners, except Deshraj,
was that the Sessions Judge could not 52 interview any of them when he visited
the Kanpur Central Jail on 21st December, 1981. The Sessions Judge gave in
Annexure to his Report the names, ages and other particulars of 84 undertrial
prisoners who, according to the jail record, were above 16 but below 21 years
of age and added that the possibility could not be ruled out that on proper
scientific medical examination, three or four out of these 84 undertrial
prisoners might be found to be below 16 years of age. The Sessions Judge picked
out nine from amongst these undertrial prisoners and got them examined by tho
Chief Medical officer and enclosed the Report of the Chief Medical officer as
Annexure to his Report. The Sessions Judge also reported that there appeared to
be general ignorance in the Kanpur Central Jail about the provisions of the
U.P. Children Act, 1951 and observed:
"All the child accused mentioned in
Annexure should have been produced before the Juvenile Judge after their
arrest. Where there was doubt whether the detenu was above the age of 16 or
below it, he should have been sent for medical report in connection with his
age and on being found to be a child, should have been dealt in accordance with
the Children Act." The Sessions Judge instructed the Jail Superintendent
and the jail doctor that in case there was any doubt about the age of an under
trial prisoner, they should instead of relying upon the police papers with
regard to age, obtain the opinion of the Chief Medical officer and
"apprise the court concerned of it so that the presiding officer directs
the accused to be produced before the Juvenile Judge to enable him to take the
benefit of the provisions of the Children Act for a better social order."
We do not know what order has been passed by the Allahabad High Court in the
writ petition before it but when these three writ petitions came up for hearing
before us on 5th January, 1982, the Report of the Sessions Judge was placed
before us and an affidavit in reply was also filed by the Assistant Jailer of
the Kanpur Central Jail denying the allegations made in the news report.
Now in the first place, since these three
writ Petitions are based upon certain statements said to have been made by Shri
Madhu Mehta and set out in the news report of the Indian Express, we think it
would be desirable to join Shri Madhu Mehta as a party 53 respondent in each of
the three writ petitions, so that he can place A before the court all the facts
gathered by him in regard to the juvenile inmates of the Kanpur Central Jail.
The Assistant Jailer has in his affidavit in reply disputed that Shri Madhu
Mehta ever visited the jail, but since, according to the news report, Shri
Madhu Mehta entered the jail incognito, it is quite possible that the Assistant
Jailer may not have any record of his visit. But, since the Assistant Jailer has
denied the visit of Shri Madhu Mehta, we think it necessary that Shri Madhu
Mehta should be impleaded as a party respondent to the writ petitions so that
he can state on oath whether he visited the Kanpur Central Jail and if so, what
were the fact which he observed. We cannot reject in limine the allegations
made in the news report in regard to what Shri Madhu Mehta found in the course
of his visit to the Kanpur Central Jail, merely because the Assistant Jailer
has disputed the visit of Shri Madhu Mehta. The allegations are indeed so
serious and, if correct, disclose to what utter depths of depravity man can
sink, that the court cannot abdicate its constitutional duty of ensuring human
dignity to the juvenile undertrial prisoners and summarily throw out the three
writ petitions merely on the basis of a denial made by the Assistant Jailer. We
must investigate into this matter not only in the interest of fair
administration of justice but also for enforcing the basic human rights of
these unfortunate juvenile undertrial prisoners who are alleged to have been
the victims of sexual exploitation. Juvenile delinquency is, by and large, a
product of social and economic maladjustment. Even if it is found that these
juveniles have committed any offences, they cannot be allowed to be maltreated.
They do not shed their fundamental rights when they enter the jail. Moreover,
the object of punishment being reformation, we fail to see what social
objective can be gained by sending juveniles to jails where they would come into
contact with hardened criminals and lose whatever sensitivity they may have to
finer and nobler sentiments. That is the reason why Children Acts are enacted
by States all over the country and the U.P. Legislature has also enacted the
Uttar Pradesh Children Act, 1951. Since, according to the Report of the
Sessions Judge, there were 7 juvenile undertrial prisoner below the age of 16
years, that being the limit of age below which a juvenile would be regarded as
a 'child' within the meaning of the Uttar Pradesh Children Act, 1951, and out
of these seven child undertrial prisoners, six were released prior to the visit
of the Session Judge and they could not therefore be interviewed by the
Sessions Judge, we would direct Shri O.P, Garg, Secretary of the U.P. State
Board of Legal Aid and 54 Advice, to immediately contact these six children
after finding out their addresses either from the court proceedings or from the
jail records and take their statements with a view to ascertaining what was the
treatment meted out to them in the Kanpur Central Jail and whether any of them
was maltreated or sexually exploited.
Shri O.P. Garg will immediately without any
delay, proceed to take the statements of these six children and submit them to
this Court along with his report on or before 27th January, 1982. His expenses
may be met by the U.P. State Board of Legal Aid and Advice.
We should also like the State of Uttar
Pradesh and the Superintendent of the Kanpur Central Jail to inform us by a
proper affidavit before the next hearing of the writ petitions as to what were
the circumstances in which these six children whose names are given at serial
numbers 2 to 7 in Annexure were released, and also produce before us the orders
of the Magistrates directing their release. We should also like the State of
Uttar Pradesh and the Superintendent of the Kanpur Central Jail to inform us as
to why Deshraj was detained in the Kanpur Central Jail from 7th March, 198]
though he was admittedly, even on the basis of the jail records, a child below
16 years of age and how did it happen that suddenly on 19th December. 1981, an
order was obtained for transferring him to the Children's Home, Kanpur. The
State of Uttar Pradesh and the Superintendent of the Kanpur Central Jail will
also explain as to why such an order for transfer of Deshraj to the Children's
Home Kanpur could not be obtained earlier.
The learned counsel appearing on behalf of
the State of Uttar Pradesh handed over to us copies of Annexures A and B, but
we do not have copies of the other annexures to the Report of the Sessions
Judge. We would therefore request the Registrar of the High Court of Allahabad
to forward to us immediately copies of all the annexures to the Report of the
Sessions Judge. The copies may be in quadruplicate.
Since, according to the Report of the
Sessions Judge, 7 children were lodged in the Kanpur Central Jail and perhaps a
few more out of the 84 undertrial prisoners mentioned in Annexure A to the
Report of the Sessions Judge could possibly be children within the meaning of
Uttar Pradesh Children Act, 1951, we think it is necessary to point out that
under the provisions of that Act, no child can, except in the rare cases
provided in the Act? be detained 55 in jail. Chapter IV of the Act deals with
youthful offenders. Section 23 which occurs in this chapter provides in
sub-section (1) that when a person apparently under at the of 16 years is
arrested for a non-bailable offence and cannot be brought forth before a court,
the officer-in- charge of the police station to which such person is brought
may in any case and shall. unless the offence is one of culpable homicide or is
an offence punishable with death or transportation release him on bail unless
for reasons to be recorded in writing the officer believes that such release
will bring him into association with any reputed criminal or expose him to
moral danger or that his release would defeat the ends of justice. Section 24
then proceeds to enact that when a person apparently under the age of 16 years
having been arrested is not released under section 23 or otherwise, the
officer-in-charge of the police station shall cause him to be detained in the
prescribed manner until he can be brought before a court. So also section 25
provides that a court, on remanding or committing for trial a child who is not
released on bail, shall order him to be detained in the prescribed manner. The
manner in which a child can be detained is prescribed by the Uttar Pradesh
Children Rules, 1962 made in exercise of the powers conferred under sub-
section (I) of Section 88 of the Uttar Pradesh Children Act, 1951. Rules 14 and
IS are the relevant rules which make provision in this behalf. Rule 14 provides
that except as provided in the Act, where a child having been arrested is not
released on bail under section 23, the officer-in-charge of the police station
shall cause him to be detained in a place of safety until he can be brought
before a court and rule I S says that except as provided in the Act, where a
child is not released on bail, the court shall on remanding or committing a
child for trial order him to be detained in a place of safety pending the
disposal of The proceeding.
What is a "place of safety" is
defined in section 2, sub- section (9) of the Act to mean, "any
observation home or any orphanage, hospital, or any other, suitable place or
institution the occupier or manager of which is willing temporarily to receive
a child, or where such observation home, orphanage, hospital or other suitable
place of institution is not available in the case of a male child only, a
police station in which arrangements are available or can be made for the safe
keeping of a child separately from adult offenders." It is therefore clear
that when a child is arrested for an offence and is not released on bail, he
cannot be sent to jail but he must be detained in a place of safety as defined
in section 2 sub-section (9) of the Act. The inhibition against sending a child
to jail does not depend upon any proof that 56 he is a child under the age of 16
years but as soon as it appears that a person arrested is apparently under the
age of 16 years this inhibition is attracted. The reason for this inhibition
lies in the court solitude which the law entertains for juveniles below the age
of 16 years. The law is very much concerned to see that juvenile do not come
into contact with hardened criminals and their chances of reformation are not
blighted by contact with criminal offenders. The law throws a clock of
protection round juveniles and seeks to isolate them from criminal offenders,
because the emphasis placed by the law is not on incarceration but on
reformation. How anxious is the law to protect young children from
contamination with hardened criminals is also apparent from section 27 of the
Act which provides, subject only to a few limited and exceptional cases
referred to in the proviso, that notwithstanding anything contained to the
contrary, no court can sentence a child to death or transportation or
imprisonment for any term or commit him to prison in default of payment of
fine.
It would thus be seen that even where a child
is convicted of an offence, he it not to be sent to a prison but he may be
committed to an approved school under section 29 or - either discharged or
committed to suitable custody under section 30. Even where a child is found to
have committed an offence of so serious a nature that the court is of opinion
that no punishment which under the provisions of the Act it is authorised to
inflict is sufficient, section 32 provides that the of tender shall not be sent
to jail but shall be kept in safe custody in such place or manner as it thinks
fit and shall report the case for the orders of the State Government. Section
33 sets out various methods of dealing with children charged with offences. But
in no case except the exceptional ones mentioned in the Act, a child can be
sent to jail. It is therefore very surprising that the seven children whose
names are mentioned in Annexure to the Report of the Sessions Judge were sent
by the concerned Magistrate to jail instead of being sent to Children's Home
which we believe was a place of safety in Kanpur with the meaning of section 2
sub-section (9) of the Act. We would strongly impress upon the magistrates in
the State of Uttar Pradesh- and what we say here must apply mutatis mutandis to
the magistrates in the other parts of the country where the Children Acts are
in force, that they must be extremely careful to see that no person apparently
under the age of 16 years is sent to jail but he must be detained in a
Children's Home or other place of safety. It 11 is absolutely essential in
order to implement the provisions of the Uttar Pradesh Children Act, 1951 that
children's Home or other 57 suitable places of safety are set up by the
government for the purpose of providing a place of detention for children under
the age of 16 years. No words we can use would be strong enough to convey our
feelings in this respect. A nation which is not concerned with the welfare of
its children cannot look forward to a bright future.
With these observations, we adjourn the
hearing of these three writ petitions to 29th January, 1982.
N.V.K.
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