Pratap
Singh Vs. State of Jharkhand & Anr [2005] Insc 71 (2 February 2005)
S.B.
Sinha S.B. Sinha, J:
INTRODUCTION:
Juvenile
Justice Act in its present form has been enacted in discharge of the obligation
of our country to follow the United National Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 also known as Beijing Rules (the
Rules).
THE
RULES:
Part I
of the said Rules provides for the general principles which are said to be of
fundamental perspectives referring to comprehensive social policy in general
and aiming at promoting juvenile welfare to the greatest possible extent, which
would minimize the necessity of intervention by the juvenile justice system
and, in turn, will reduce the harm that was caused by any intervention. The
important role that a constructive social policy for juvenile is to play has
been pointed out in Rules 1.1 to 1.13 inter alia in the mater of prevention of
juvenile crime and delinquency. Rule 1.4 defines juvenile justice as an
integral part of the national development process of each country, within a
comprehensive framework of social justice from all juveniles, and, thus, at the
same time, contributing to the protection of the young and maintenance of a
peaceful order in the society. While Rule 1.6 refers to the necessity of the
juvenile justice system being systematically developed and coordinated with a
view to improving and sustaining the competence of personnel involved in the
services including their methods, approaches and attitudes, Rule 1.5 seeks to
take account of existing conditions in Member States which would cause the
manner of implementation of particular rules necessarily to be different from
the manner adopted in other States. Rule 2.1 provides for application of the
rules without distinction of any kind. Rule 2.2 provides for the definitions
which are as follows:
"(a)
A juvenile is a child or young person who, under the respective legal systems,
may be dealt with for an offence in a manner which is different from an adult;
(b) An
offence is any behaviour (act or omission) that is punishable by law under the
respective legal systems;
(c) A
juvenile offender is a child or young person who is alleged to have commited or
who has been found to have committed an offence." Rule 2.3 inter alia
provides for making a set of laws, rules and provisions specifically applicable
to juvenile offenders and institutions and bodies entrusted with the functions
of the administration of juvenile justice and designed:
"(a)
To meet the varying needs of juvenile offenders, while protecting their basic
rights;
(b) To
meet the needs of society;
(c) To
implement the following rules thoroughly and fairly."
The
age of a juvenile is to be determined by the Member Countries having regard to
its legal system, thus fully respecting the economic, social political,
cultural and legal systems. This has made a wide variety of ages coming under
the definition of "juvenile", ranging from 7 years to 18 years or
above. Rule 3 provides for extension of the Rules covering
(a) status
offences;
(b) juvenile
welfare and care proceedings and
(c) proceedings
dealing with young adult offenders, depending of course on each given age
limit. Rule 4 provides that the minimum age of criminal responsibility should
not be fixed at too low an age level bearing in mind the facts of emotional,
mental and intellectual maturity. Rule 5 provides that the juvenile justice
system shall emphasize the well-being of the juvenile and shall ensure that any
reaction to juvenile offenders shall always be in proportion to the
circumstances of both the offenders and the offence. Rule 6 provides for scope
of discretion. Rule 7.1 provides for the rights of juvenile which is as under:
"Basic
procedural safeguards such as the presumption of innocence, the right to be
notified of the charges, the right to remain silent, the right to counsel, the
right to the presence of a parent or guardian, the right to confront and
cross-examine witnesses and the right to appeal to a higher authority shall be
guaranteed at all stages of proceedings." Rule 8 provides for the
protection of privacy. Rule 9 provides that the said rules shall not be
interpreted as precluding the application of the Standard Minimum Rules for the
treatment of prisoners adopted by the United Nations and other human rights
instruments and standards recognized by the international community that relate
to the care and protection of the young. Rule 27 also provides for application
of the Standard Minimum Rules for the treatment of prisoners adopted by the
United Nations.
Part
II of the said Rules provides for investigation and prosecution, diversion,
specialization within the police, detention pending trial. Rule 13 reads as
under:
"13.1
Detention pending trial shall be used only as a measure of last resort and for
the shortest possible period of time.
13.2
Whenever possible, detention pending trial shall be replaced by alternative
measures, such as close supervision, intensive care or placement with a family
or in an educational setting or home.
13.3 Juveniles
under detention pending trial shall be entitled to all rights and guarantees of
the Standard Minimum Rules for the Treatment of Prisoners adopted by the United
Nations.
13.4
Juveniles under detention pending trial shall be kept separate from adults and
shall be detained in a separate institution or in a separate part of an
institution also holding adults.
13.5
While in custody, juveniles shall receive care, protection and all necessary
individual assistance social, educational, vocational, psychological, medical
and physical that they may require in view of their age, sex and
personality." Part III provides for adjudication and disposition in terms
whereof competent authorities prescribed were competent to adjudicate. Rule 15
provides for legal counsel, parents and guardians. Rule 16 provides for Social
Inquiry Reports. Rule 16.1 reads as under:
"In
all cases except those involving minor offences, before the competent authority
renders a final disposition prior to sentencing, the background and
circumstances in which the juvenile is living or the conditions under which the
offence has been committed shall be properly investigated so as to facilitate
judicious adjudication of the case by the competent authority." Rule 17
provides for guiding principles in adjudication and disposition which reads as
under:
"17.1
The disposition of the competent authority shall be guided by the following
principles:
(a)
The reaction taken shall always be in proportion not only to the circumstances
and the gravity of the offence but also to the circumstances and the needs of
the juvenile as well as to the needs of the society;
(b)
Restrictions on the personal liberty of the juvenile shall be imposed only
after careful consideration and shall be limited to the possible minimum;
(c)
Deprivation of personal liberty shall not be imposed unless the juvenile is
adjudicated of a serious act involving violence against another person or of
persistence in committing other serious offences and unless there is no other
appropriate response;
(d)
The well-being of the juvenile shall be the guiding factor in the consideration
of her or his case.
17.2
Capital punishment shall not be imposed for any crime committed by juveniles.
17.3
Juveniles shall not be subject to corporal punishment.
17.4
The competent authority shall have the power to discontinue the proceedings at
any time." It has been pointed out that the main difficulty in formulating
guidelines for the adjudication of young persons stems from the fact that there
are unresolved conflicts of a philosophical nature, such as the following:
(a)
Rehabilitation versus just result;
(b)
Assistance versus repression and punishment;
(c)
Reaction according to the singular merits of an individual case versus reaction
according to the protection of society in general;
(d)
General deterrence versus individual incapacitation.
OBJECTS
OF JUVENILE JUSTICE LEGISLATION:
The
purpose of the Juvenile Justice Legislation is to provide succour to the
children who were being incarcerated along with adults and were subjected to
various abuses. It would be in the fitness of things that appreciation of the
very object and purpose of the legislation is seen with a clear understanding
which sought to bring relief to juvenile delinquents.
The
problem of Juvenile Justice is, no doubt, one of tragic human interest so much
so in fact that it is not confined to this country alone but cuts across
national boundaries. In 1966 at the second United Nations Congress on the
Prevention of Crime and Treatment of Offenders at London this issue was discussed and
several therapeutic recommendations were adopted. To bring the operations of
the juvenile justice system in the country in conformity with the UN Standard
Minimum Rule for the Administration of juvenile justice, the Juvenile Justice
Act came into existence in 1986. A review of the working of the then existing
Acts both State and Parliamentary would indicate that much greater attention
was found necessary to be given to children who may be found in situations of
social maladjustment, delinquency or neglect. The justice system as available
for adults could not be considered suitable for being applied to juvenile.
There is also need for larger involvement of informal system and community
based welfare agencies in the case, protection, treatment, development and
rehabilitation of such juveniles.
The
provisions of the Juvenile Justice Act, 1986 (hereinafter referred to as
"the 1986 Act") and the Juvenile Justice (Care and Protection of
Children) Act, 2000 (56 of 2000) (hereinafter referred to as "the 2000
Act") are required to be construed having regard to the aforementioned
Minimum Standards as the same are specifically referred to therein.
The
Juvenile Justice Act, 1986 is aimed at achieving the following objects :
(i) To
lay down an uniform legal frame-work for juvenile justice in the country so as
to ensure that no child under any circumstances is lodged in jail or police
lock-up. This is being ensured by establishing Juvenile Welfare Boards and
Juvenile Courts;
(ii)
To provide for a specialized approach towards the prevention and treatment of
juvenile delinquency in its full range in keeping with the development needs of
the child found in any situation of social maladjustment;
(iii)
To spell out the machinery and infrastructure required for the case,
protection, treatment, developments and rehabilitations of various categories
of children coming within the purview of the Juvenile Justice system. This is
proposed to be achieved by establishing observation homes, juvenile homes for
neglected juveniles and special homes for delinquent juveniles;
(iv)
To establish norms and standard for the administration of juvenile justice in
terms of investigation and prosecution, adjudication and disposition and case,
treatment and rehabilitation;
(v) To
develop appropriate linkages and coordination between the formal system of
juvenile justice and voluntary agencies engaged in the welfare of neglected or
society maladjusted children and to specifically define the areas of their
responsibilities and roles;
(vi)
To constitute special offences in relation to juveniles and provide for
punishment therefor;
(vii)
To bring the operation of the juvenile justice system in the country in
conformity with the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice.
The
various provisions of the 1986 Act provide for a scheme of uniform juvenile
justice system in the country so that a juvenile may not have to be lodged in
jail or police lock-up as well as for prevention and treatment of juvenile
delinquency for care, protection etc.
Section
3 provides that where an inquiry has been initiated against a juvenile even,
during the course of such inquiry a juvenile ceased to be such, then,
notwithstanding anything contained therein or any other law for the time being
in force, the inquiry may be continued and orders may be made in respect of
such persons as if such person had continued to be a juvenile.
Chapter
II of the Act speaks of competent authorities and institutions for juveniles
such as Juvenile Welfare Boards, Juvenile Courts, Juvenile Homes, special
homes, observation homes and aftercare organisations. Chapter III makes
provision for neglected juveniles. Section 17 makes provision for
uncontrollable juveniles. Chapter IV deals with delinquent juveniles.
Sections
18 to 26 provide for bail and custody of juveniles, accused of a bailable or
non-bailable offence, the manner of dealing with them and the orders that may
be passed regarding or against delinquent juveniles.
Proceedings
as laid down in Chapter VIII of the Code of Criminal Procedure are not
competent against a juvenile. A juvenile and a person who is not a juvenile
cannot be jointly tried. No disqualification attaches to conviction of a
juvenile for any offence under any law. Special provisions are contained in
Section 26 as regard the proceedings in respect of juveniles pending in any
court on the date of the coming into force of the Act. Chapter V (Sections 27
to 40) lay down the procedure of competent authorities generally under the Act
and appeals and revisions from orders of such authorities. Chapter VI (Sections
41 to 45) provides for special offences in respect of juveniles. Chapter VII
(Sections 46 to 63) contains miscellaneous provisions.
Section
32 of the 1986 Act mandates the competent authority to hold enquiry as to the
age of the delinquent brought before it.
The
1986 Act has been repealed and replaced by the 2000 Act.
The
2000 Act has brought about certain changes vis-`-vis the 1986 Act. It has
obliterated the distinction between a male juvenile and female juvenile. In
contrast with the definition of delinquent juvenile in the 1986 Act who was
found guilty of commission of an offence, a juvenile in conflict with law is
defined in the 2000 Act to mean a person who is of below 18 years of age and is
alleged to have committed an offence. Section 3 provides for continuation of
inquiry in respect of juvenile who has ceased to be a juvenile.
By
reason of the aforementioned provisions a legal fiction has been created to
treat a juvenile who has ceased to be a juvenile as a person as if he had
continued to be a juvenile. Chapter II provides for constitution of a Juvenile
Justice Board. Its power had been outlined in Section 6. Section 7 mandates
that a Magistrate before whom a juvenile is produced must without any delay
record his opinion, and if it is found that a person brought before him is a
juvenile, he shall record the same and forward him with the record of the
proceeding to the competent authority having jurisdiction over the proceeding.
Sections 8 and 9 provide for observation homes and special homes. Section 10
provides that on apprehension of a juvenile in conflict with law; he shall be
placed under the charge of a special juvenile police unit or the designated
police officer who shall immediately report the matter to a member of the
Board. Section 12 provides for bail. In no circumstances, a person who appears
to be juvenile is to be placed in a police lock-up. He is to be kept in an observation
home in the prescribed manner until he can be brought before the court.
Sub-section (3) of Section 12 mandates the Board to make an order sending a
juvenile to the observation home instead of committing him to prison. Section
14 provides for holding of an inquiry by the Board regarding a juvenile within
a period of four months. Section 15 provides for an order that may be passed
regarding juvenile, clause (g) of sub-section (1) whereof reads, thus:
"15.
Order that may be passed regarding juvenile (1) Where a Board is satisfied on
inquiry that a juvenile has committed an offence, then, notwithstanding
anything to the contrary contained in any other law for the time being in
force, the Board may, if it thinks so fit, - (g) make an order directing the
juvenile to be sent to a special home
(i) in
the case of juvenile, over seventeen years but less than eighteen years of age
for a period of not less than two years;
(ii) in
case of any other juvenile for the period until he ceases to be a juvenile:
Provided
that the Board may, if it is satisfied that having regard to the nature of the
offence and the circumstances of the case it is expedient so to do, for reasons
to be recorded, reduce the period of stay to such period as it thinks
fit." Section 16 mandates that no juvenile shall be sentenced to death or
life imprisonment or committed to prison in default of payment of fine or in
default of furnishing security. Sections 20 and 64 which are relevant for our
purpose read as under:
"20.
Special provision in respect of pending cases Notwithstanding anything
contained in this Act, all proceedings in respect of a juvenile pending in any
Court in any area on the date on which this Act comes into force in that area,
shall be continued in that Court as if this Act had not been passed and if the
Court finds that the juvenile has committed an offence, it shall record such
finding and instead of passing any sentence in respect of the juvenile, forward
the juvenile to the Board which shall pass orders in respect of that juvenile
in accordance with the provisions of this Act as if it had been satisfied on
inquiry under this Act that a juvenile has committed the offence.
64.
Juveniles in conflict with law undergoing sentence at commencement of this Act In
any area in which this Act is brought into force, the State Government or the
local authority may direct that a juvenile in conflict with law who is
undergoing any sentence of imprisonment at the commencement of this Act, shall,
in lieu of undergoing such sentence, be sent to a special home or be kept in
fit institution in such manner as the State Government or the local authority
thinks fit for the remainder of the period of the sentence; and the provisions
of this Act shall apply to the juvenile as if he had been ordered by the Board
to be sent to such special home or institution or, as the case may be, ordered
to be kept under protective care under sub-section (2) of section 16 of this
Act." Sections 4 to 28 occur in Chapter II which deal with juvenile in conflict
with law and Section 64 occurs in Chapter V dealing with miscellaneous
provisions. It is interesting to note that all the provisions occurring in
Chapter II or Section 20 do not use the expression juvenile in conflict with
law whereas Section 64 specifically uses that expression.
Section
20 of the Act permits continuation of proceedings of a juvenile court in any
area on the date on which the Act came into force by providing "it shall
record such finding and instead of passing any sentence in respect of that
juvenile, shall forward him to the board which shall pass orders in respect of
that juvenile in accordance with the provision of this Act as if it has been
satisfied on inquiry under this Act that juvenile had committed the
offence".
Section
68 provides for rule making power of the State Government.
No
State unfortunately has framed any rule in exercise thereof. The Central
Government, however, in purported exercise of its power under Section 70 of the
Act published the principles which are fundamental to the development of
strategies, interpretation and implementation of the Act of 2000 and the model
rules which the State Governments are required to frame. Rule 61of the said
Model Rule is as under:
"61.
Temporary application of model rules It is hereby declared that until the new
rules are framed by the State Government concerned under section 68 of the Act,
these rules shall mutatis mutandis apply in that State." Rule 62 deals
with pending cases and sub-rule (3) thereof reads as under:
"It
is hereby clarified that such benefits shall be made available not only to
those accused, who was juvenile or a child at the time of commission of an
offence but also to those who ceased to be a juvenile or a child during the pendency
of any enquiry of trial." The legislation relating to juvenile justice
should be construed as a step for resolution of the problem of the juvenile
justice which was one of tragic human interest which cuts across national
boundaries. The said Act has not only to be read in terms of the Rules but also
the Universal Declaration of Human Rights and the United Nations Standard
Minimum Rules for the protection of juveniles.
INTERNATIONAL
LAW:
The
Juvenile Justice Act specially refers to international law. The relevant
provisions of the Rules are incorporated therein. The international treatises,
covenants and conventions although may not be a part of our municipal law, the
same can be referred to and followed by the courts having regard to the fact
that India is a party to the said treatises. A right to a speedy trial is not a
new right. It is embedded in our Constitution in terms of Articles 14 and 21
thereof. The international treaties recognize the same.
It is
now trite that any violation of human rights would be looked down upon. Some
provisions of the international law although may not be a part of our municipal
law but the courts are not hesitant in referring thereto so as to find new
rights in the context of the Constitution. Constitution of India and other
ongoing statutes have been read consistently with the rules of international
law. Constitution is a source of, and not an exercise of, legislative power.
The principles of International Law whenever applicable operate as a statutory
implication but the Legislature in the instant case held itself bound thereby
and, thus, did not legislate in disregard of the constitutional provisions or
the international law as also in the context of Articles 20 and 21 of the
Constitution of India. The law has to be understood, therefore, in accordance
with the international law. Part III of our Constitution protects substantive
as well as procedural rights.
Implications
which arise therefrom must effectively be protected by the judiciary. A
contextual meaning to the statute is required to be assigned having regard to
the Constitutional as well as International Law operating in the field.
[See
Liverpool & London S.P. & I Association Ltd. vs M.V. Sea Success I
& Another (2004) 9 SCC 512] [2001] 2 AC 532, Lord Stein observed that in
the law context is everything in the following terms:
"28.
The differences in approach between the traditional grounds of review and the
proportionality approach may therefore sometimes yield different results. It is
therefore important that cases involving Convnetion rights must be analysed in
the correct way. This does not mean that there has been a shift to merits
review. On the contrary, as Professor Jowell [2000] PL 671, 681 has pointed out
the respective roles of judges and administrators are fundamentally distinct
and will remain so. To this extent the general tenor of the observations in Mahmood
[2001] 1 WLR 840 are correct. And Laws LJ rightly emphasized in Mahmood, at p
847, para 18, "that the intensity of review in a public law case will
depend on the subject matter in hand". That is so even in cases involving
Convention rights. In law context is everything." Constitution of India
and the Juvenile Justice Legislations must necessarily be understood in the
context of present days scenario and having regard to the international
treaties and conventions. Our Constitution takes note of the institutions of
the world community which had been created.
Some
legal instruments that have declared the human rights and fundamental freedoms
of humanity had been adopted but over the time even new rights Makwanyane 1995
(3) SA 391), Canada (Reference re Public Service Employee Relations Act
(Alberta) [1987] 1 SCR 313 at 348), Germany (Presumption of Innocence and the
European Convention on Human Rights New ideas had occupied the human mind as
regard protection of Human Now, the Constitution speaks not only "to the
people of India who made it and accepted it for their governance but also to
the international community as the basic law of the Indian nation which is a
member of that community". Inevitably, its meaning is influenced by the
legal context in which it must operate.
The
legal instruments that have declared legal rights and fundamental freedoms,
founded in the nations of human dignity and Charter of United Nations were not
known earlier which is manifest today. [Charter of the United Nations, signed
at San Fransisco on 26.6.1945. Preamble]. Political, social and economic
development can throw light on the meaning of Constitution.
In
Lawrence (supra), Kennedy J., for the Supreme Court, after references to
international human rights law, concluded:
"Had
those who drew and ratified the Due Process Clauses of the Fifth Amendment or
the Fourteenth Amendment known the components of liberty in its manifold
possibilities, they might have been more specific. They did not presume of have
this insight.
They
knew times can blind us to certain truths and later generations can see that
laws once thought necessary and proper in fact serve only to oppress. As the
Constitution endures, persons in every generation can invoke its principles in
their own search for greater freedom." The questions, therefore, in our
opinion, should be determined having regard to the aforementioned principles.
EXPEDITIOUS
PROCEEDINGS:
In
terms of Rule 20.1 of the Rules we may notice that some statutes, as for
example, the Family Court Act of some States of U.S.A. contains provisions
establishing time limitations governing each stage of juvenile proceedings, the
purpose whereof is to assure swift and certain adjudication at all phases of
the proceeding. (See In re Frank C., 70 N.Y.2d 408) A similar issue was
examined by the Supreme Court of California in sought habeus corpus to obtain
release. The court held that the Fourth Amendment provides the authority for
the promptness required for a juvenile hearing. It was further held that a
minor must be released upon expiration of the statutory time limit for
detention due to the juvenile's interest in freedom from institutional
restrains. The court implied that the time allowed to have the hearing shall
stand extended once the juvenile is released, and that dismissal is not the
only necessary remedy. held that in calculating the time for a speedy trial
continuances should not be included. In that case, the court found that
continuances based on reset forms signed by appellant's attorney were
excludable from the statutory time limits for a speedy trial.
Illinois
held that the remedy for detention of a juvenile beyond the statutory limit was
immediate release, not dismissal. In Stufflebean, the court denied a
probationer's request for dismissal based on incarceration exceeding statutory
limits.
QUESTIONS:
The
questions which arise for consideration in this reference are:
(i)
What would be reckoning date in determining the age of offender, viz., date
when produced in a Court, as has been held by this Court which the offence was
committed as has been held in Umesh
(ii)
Whether the 2000 Act will be applicable in cases which were pending before the
enforcement thereof.
RE.:
QUESTION NO. 1:
We
have noticed hereinbefore that the decisions in Umesh Chandra (supra) and Arnit
Das (supra) are in conflict with each other. Whereas in Umesh Chandra (supra),
a clear finding has been recorded by this Court that the relevant date for
applicability of the Act is the date on which the offence takes place; in Arnit
Das (supra), Lahoti, J. (as the learned Chief Justice then was) speaking for a
Division Bench held that Section 8(a) of the Act and the Scheme as also the
phraseology employed by the Parliament in drafting the Act suggests that the
relevant date for finding out the age of juvenile is the date when he is
produced before the Board. It was observed that indisputably the definition of
juvenile or any other provisions contained in the Act does not specifically
provide the date for reference to which a crime has to be determined so as to
find out whether he is or she is a juvenile or not.
In
support of the view taken in Arnit Das (supra), the learned Additional
Solicitor General appearing for the Respondent submitted that the Act aims at
protection of a juvenile in the sense that he is to be kept in the protective
custody and dealt with separately by not sending him to prison or police
lock-up which is possible to be directed only when a juvenile is arrested or
produced in court and not prior thereto. Similarly, on conviction, he cannot be
sentenced and may be directed to be housed in a protective home and, thus, the
relevant date would be the one on which the delinquent juvenile is produced
before the Board..
This
argument cannot be accepted for more than one reason. The said Act is not only a
beneficient legislation, but also a remedial one. The Act aims at grant of
care, protection and rehabilitation of a juvenile vis-`-vis the adult
criminals. Having regard to Rule 4 of United Nations Standard Minimum Rules for
the Administration of Juvenile Justice, it must also be borne in mind that the
moral and psychological components of criminal responsibility was also one of
the factors in defining a juvenile. The first objective, therefore, is the
promotion of the well-being of the juvenile and the second objective bring
about the principle of proportionality whereby and whereunder the
proportionality of the reaction to the circumstances of both the offender and
the offence including the victim should be safeguarded. In essence, Rule 5
calls for no less and no more than a fair reaction in any given case of
juvenile delinquency and crime. The meaning of the expression 'Juvenile' used
in a statute by reason of its very nature has to be assigned with reference to
a definite date. The term 'Juvenile' must be given a definite connotation. A
person cannot be a juvenile for one purpose and an adult for other purpose. It
was, having regard to the constitutional and statutory scheme, not necessary
for the Parliament to specifically state that the age of juvenile must be
determined as on the date of commission of the offence. The same is in-built in
the statutory scheme. The statute must be construed having regard to the Scheme
and the ordinary state of affairs and consequences flowing therefrom. The
modern approach is to consider whether a child can live up to the moral and
psychological components of criminal responsibility, that is, whether a child,
by virtue of his or her individual discernment and understanding can be held
responsible for essentially anti-social behaviour.
In
construing a penal statute, the object of the law must be clearly borne in
mind. The importance of time-bound investigation and a trial in relation to an
offence allegedly committed by a juvenile is explicit as has been dealt with in
some details hereinbefore. While making investigation it is expected that the
accused would be arrested forthwith. He, upon his arrest; if he appears to be a
juvenile, cannot be kept in police custody and may be released on bail. If he
is not released on bail by the arresting authority, he has to be produced
before the competent Court or Board. Once he appears to be juvenile, the
competent court and/ or board may pass an appropriate order upon releasing him
for bail or send him to a protective custody. An inquiry for the purpose of
determination of age of the juvenile need not be resorted to if the person
produced is admitted to be a juvenile.
An inquiry
would be necessary only if a dispute is raised in that behalf. A decision
thence is required to be taken by the competent court and /or board having
regard to the status of the accused as to whether he is to be released on bail
or sent to a protective custody or remanded to police or judicial custody. For
the said purpose what is necessary would be to find out as to whether on the
date of commission of the offence he was a juvenile or not as otherwise the
purpose for which the Act was enacted would be defeated.
The
provisions of the said Act, as indicated hereinbefore, clearly postulate that
the necessary steps in the proceedings are required to be taken not only for
the purpose of adopting a special procedure at the initial stage but also for
the intermediary and final stage of the proceedings. If the person concerned is
a juvenile, he cannot be tried along with other adult accused.
His
trial must be held by the Board separately. Having regard to Rule 20.1 of the
Rules his case is required to be determined, without any unnecessary delay. In
the trial, the right of the juvenile as regard his privacy must be protected.
He is entitled to be represented by a legal adviser and for free legal aid, if
he applies therefor. His parents and/or guardian are also entitled to
participate in the proceedings. The Court would be entitled to take into
consideration the Social Inquiry Reports wherein the background and the
circumstances in which the juvenile was living and the condition in which the
offence had been created may be properly investigated so as to facilitate
juvenile adjudication of the case by the competent authority. At all stages,
the Court/Board is required to pass an appropriate order expeditiously.
Right
of a juvenile to get his case disposed of expeditiously is a statutory as also
a constitutional right.
Even
at the final stage, viz., after he is found to be guilty of commission of an
offence, he must be dealt with differently vis-a-vis adult prisoners. Only
because his age is to be determined in a case of dispute by the competent court
or the board in terms of Section 26 of the Act, the same would not mean that
the relevant date therefor would be the one on which he is produced before the
Board. If such an argument is accepted, the same would result in absurdity as,
in a given case, it would be open to the police authorities not to produce him
before the Board before he ceases to be juvenile. If he is produced after he
ceases to be juvenile, it may not be necessary for the Board to send him in the
protective custody or release him on bail as a result whereof he would be sent
to the judicial or police custody which would defeat the very purpose for which
the Act had been enacted.
Law
cannot be applied in an uncertain position. Furthermore, the right to have a
fair trial strictly in terms of the Act which would include procedural
safeguard is a fundamental right of the juvenile. A proceeding against a
juvenile must conform to the provisions of the Act.
Full
Bench of the Calcutta High Court in arriving at the conclusion that the date of
reckoning shall be the one on which the offence has been committed referred to
Article 20 of Constitution of India in the following terms:
"22.
If we interpret S. 28 to mean that it prohibits a joint trial of a child and an
adult only when the child is a 'child' at the time of trial, that
interpretation would go against the provisions of Art. 20(1) of the
Constitution which prescribes that no person shall be convicted of any offence
except for violation of a law in force at the time of the commission of the act
charged as an offence nor be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of the commission
of the offence." We, with respect, agree with the said observation.
The
statute, it is well known, must be construed in such a manner so as to make it
effective and operative on the principle of Ut res magis valeat quam pereat.
The courts lean strongly against any constructions which tend to reduce a
statute to a futility. When two meanings, one making the statute absolutely
vague, wholly intractable and absolutely meaningless and the other leading to
certainty and meaningful are given, in such an event the latter should be
followed.
[See Tinsukhia
Electric Supply Co. Ltd. vs. State of Assam and Others (1989) 3 SCC 709 [See Andhra Bank vs. B. Satyanarayana and
Others (2004) 2 SCC 657] and Indian Handicrafts Emporium and Others vs. Union of India and
Others (2003) 7 SCC 589].
The
submission of the learned Addl. Solicitor General that this Court in Umesh
Chandra (supra) has wrongly applied the test of imputing mens rea in holding
that Children Act was enacted to protect young children from the consequences
of their criminal acts on the footing that their mind at that age cannot be
said to be mature as in the case of adult, may have some substance but the said
statement of law must be read and understood in the context of Rule 4.1 of the
Rules. So read, the Act would be understood in its proper perspective.
The
question raised in paragraph 17 of Arnit Das (supra) is not apposite. A
hypothetical question would only lead to a hypothetical answer.
The
court in an appropriate case is not powerless to pass an order as is
contemplated under the statute if the situation so demands but only because a
person is produced before the Court after he attains majority either on his own
volition or by reason of machinations adopted by the investigating agency, the
same would not be determinative of the fact that the said person is to be
differently dealt with. Law favours strict adherence of the procedures subject
to just exceptions. The Court in Arnit Das (supra) observed:
"16The
Preamble speaks for the Act making provisions for the things post-delinquency.
Several expressions employed in the Statement of Objects and Reasons vocally
support this view. The Act aims at laying down a uniform juvenile justice
system in the country avoiding lodging in jail or police lock-up of the child;
and providing for prevention and treatment of juvenile delinquency, for care,
protection, etc. post- juvenility. In short the field sought to be covered by
the Act is not the one which had led to juvenile delinquency but the field when
a juvenile having committed a delinquency is placed for being taken care of
post- delinquency." With great respect, we cannot agree to the said
statement of law. It is incorrect to say that the preamble speaks of the things
of post-delinquency only. The Act not only refers to the obligations of the
country to re-enact the existing law relating to juveniles bearing in the mind,
the standards prescribed in various conventions but also all other
international instruments. It states that the said Act was enacted inter alia
to consolidate and amend the law relating to juveniles. Once the law relates to
delinquent juveniles or juveniles in conflict with law, the same would mean
both pre and post-delinquency.
The
definition of 'Juvenile' under the 1986 Act, of course refers to a person who
has been found to have committed offence but the same has been clarified in the
2000 Act. The provisions of 1986 Act, as noticed hereinbefore, sought to
protect not only those juveniles who have been found to have committed an
offence but also those who had been charged therefor. In terms of Section 3 of
the 1986 Act as well as 2000 Act when an enquiry has been initiated even if the
juvenile has ceased to be so as he has crossed the age of 16 and 18 as the case
may be, the same must be continued in respect of such person as if he had
continued to be a juvenile. Section 3 of the 1986 Act therefore cannot be given
effect to if it is held that the same only applied to post delinquency of the
juvenile.
The
field covered by the Act includes a situation leading to juvenile delinquency vis-`-vis
commission of an offence. In such an event he is to be provided the post
delinquency care and for the said purpose the date when delinquency took place
would be the relevant date. It must, therefore, be held that the relevant date
for determining the age of the juvenile would be one on which the offence has
been committed and not when he is produced in court.
RE:
QUESTION NO.2:
The
salient features of the Act of 2000 may be noticed at the outset.
Section
1(3) of the Act of 2000 states that it would come into force on such date as
the Central Government may, by notification in the Official Gazette, appoint.
The Central Government had issued an appropriate notification in terms whereof;
1.4.2001 has been specified as the 'appointed date' from which the provisions of
the said Act will come into force. The Act, thus, is prospective in its
operation. However, the Act of 2000 has repealed the Act of 1986. It has
obliterated the distinction between juvenile of different sex by reason
whereof, a male juvenile would also be juvenile if he has not crossed the age
of 18.
A
person above 16 years in terms of the 1986 Act was not a juvenile.
In
that view of the matter the question whether a person above 16 years becomes
'juvenile' within the purview of the Act of 2000 must be answered having regard
to the object and purport thereof .
In
terms of the 1986 Act, a person who was not juvenile could be tried in any
court. Section 20 of the Act of 2000 takes care of such a situation stating
that despite the same the trial shall continue in that court as if that Act has
not been passed and in the event, he is found to be guilty of commission of an
offence, a finding to that effect shall be recorded in the judgment of
conviction, if any, but instead of passing any sentence in relation to the
juvenile, he would be forwarded to the Board which shall pass orders in
accordance with the provisions of the Act as if he has been satisfied on
inquiry that a juvenile has committed the offence. A legal fiction has, thus,
been created in the said provision. A legal fiction as is well-known must be
given its full effect although it has its limitations. [See SCC 111] ITW Signode
India Ltd. vs. Collector of Central Excise - 2003 (9) (2004) 3 SCC 1] The
effect of the expression "as if" has recently been considered in M/s Maruti
Udyog Ltd. vs Ram Lal (C.A. No.2946 of 2002 disposed of on 25.1.2005) Thus, by
reason of legal fiction, a person, although not a juvenile, has to be treated
to be one by the Board for the purpose of sentencing which takes care of a
situation that the person although not a juvenile in terms of the 1986 Act but
still would be treated as such under the 2000 Act for the said limited purpose.
The Act provides for a beneficent consequences and, thus, it is required to be
construed liberally.
We are
not oblivious of the proposition that a beneficent legislation should not be
construed so liberally so as to bring within its fore a person who does not
answer the statutory scheme. [See Deepal Girishbhai Soni and However, as would
appear from the provisions of the Act of 2000 that the Scheme of the 2000 Act
is such that such a construction is possible. The same would also be evident
from Section 64 which deals with a case where a person has been undergoing a
sentence but if he is a juvenile within the meaning of the 2000 Act having not
crossed the age of 18, the provisions thereof would apply as if he had been
ordered by the Board to be sent to a special home or the institution, as the
case may be.
Section
20 of the Act of 2000 would, therefore, be applicable when a person is below
the age of 18 years as on 1.4.2001. For the purpose of attracting Section 20 of
the Act, it must be established that :
(i) on
the date of coming into force the proceedings in which the petitioner was
accused was pending; and
(ii) on
that day he was below the age of 18 years. For the purpose of the said Act,
both the aforementioned conditions are required to be fulfilled.
By
reason of the provisions of the said Act of 2000, the protection granted to a
juvenile has only been extended but such extension is not absolute but only a
limited one. It would apply strictly when the conditions precedent therefor as
contained in Section 20 or Section 64 are fulfilled. The said provisions
repeatedly refer to the words 'juvenile' or 'delinquent juveniles'
specifically. This appears to be the object of the Act and for ascertaining the
true intent of the Parliament, the rule of purposive construction must be
adopted. The purpose of the Act would stand defeated if a child continues to be
in the company of an adult. Thus, the Act of 2000 intends to give the
protection only to a juvenile within the meaning of the said Act and not an
adult. In other words, although it would apply to a person who is still a
juvenile having not attained the age of 18 years but shall not apply to a
person who has already attained the age of 18 years on the date of coming into
force thereof or who had not attained the age of 18 years on the date of
commission of the offence but has since ceased to be a juvenile.
The
embargo of giving a retrospective effect to a statute arises only when it takes
away vested right of a person. By reasons of Section 20 of the Act no vested
right in a person has been taken away, but thereby only an additional
protection has been provided to a juvenile.
held:
"Under
Art. 20 of the Constitution, no person shall be convicted of any offence except
for violation of a law in force at the time of the commission of the act
charged as an offence, nor be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of the commission
of the offence. But an ex post facto law which only mollifies the rigour of a
criminal law does not fall within the said prohibition. If a particular law
makes a provision to that effect, though retrospective in operation, it will be
valid. The question whether such a law is retrospective and if so, to what
extent depends upon the interpretation of a particular statute, having regard
to the well settled rules of construction." Referring to Maxwell on
Interpretation of Statutes, Subba Rao, J.(as His Lordship then was) opined:
"This
is not a case where an act, which was not an offence before the Act, is made an
offence under the Act; nor is this a case where under the Act a punishment
higher than that obtaining for an offence before the Act is imposed. This is an
instance where neither the ingredients of the offence nor the limits of the
sentence are disturbed, but a provision is made to help the reformation of an accused
through the agency of the court. Even so the statute affects an offence
committed before it was extended to the area in question. It is, therefore, a
post facto law and has retrospective operation. In considering the scope of
such a provision we must adopt the rule of beneficial construction as
enunciated by the modern trend of judicial opinion without doing violence to
the provisions of the relevant section." Yet again in Basheer alias N.P. Basheer
vs. State of Kerala [(2004) 3 SCC 609], this Court held
:
"If
the Act had contained any provisions to the detriment of the accused, then
undoubtedly, it would have been hit by the rule against post facto legislation
contained in Article 20(1). However, we find that the amendments (at least the
ones rationalizing the sentencing structure) are more beneficial to the accused
and amount to mollification of the rigour of the law. Consequently, despite retrospectivity,
they ought to be applied to the cases pending before the Court or even to cases
pending investigation on the date on which the amending Act came into force.
Such application would not be hit by Article 20(1) of the Constitution."
Section 6(1) and Section 8 of the Human Rights Act, 1998 of United Kingdom also provide for expeditious
disposal of cases. The effect of non- fulfillment of requirement that the a
criminal charge be heard within a reasonable time came up for consideration
recently before the House of Lords in Attorney General's Reference (No.2 of
2001) [(2004) 2 AC 72) wherein it was held that the remedy as regard breach of
reasonable time guarantee would depend upon the fact involved in each case.
While holding such a right exists in an accused, it was observed :
"This
reasoning depends, as I have said, on categorizing the within a reasonable time
obligation as referring to a characteristic of the hearing or determination
just as are the fair,, "public", "independent",
"impartial" and "tribunal established by law" requirements.
It is this categorization which I suggest is fundamentally wrong.
A
within a reasonable time obligation relates to a quality of the performance,
not to the attributes of the service or article here the hearing or
determination to be provided by the person under the obligation. This may all
sound over-sophisticated but it can be simply demonstrated both as a matter of
the ordinary use of language and by reference to basic principles of the law of
obligations." In India such a right of expeditious
disposal is contained in Article 21 of the Constitution, the relevance whereof
for the purpose of interpretation of the Act cannot be minimized.
In Zile
Singh vs. State of Haryana & Ors. [JT 2004 (8) SC 589], Lahoti, CJ, opined
that rule against retrospectivity cannot be applied to legislations which are
explanatory and declaranatory in nature. [See also R. (on the application of Uttley)
vs. Secretary of State for the Home Department - (2004) 4 All ER 1] Yet again
in Dayal Singh vs. State of Rajasthan [JT 2004 (Supp.1) SC 37], this Court upon
referring Rattan Lal (supra) held :
"11.
The decision approves of the principle that ex post facto law which only
mollifies the rigour of the criminal law, though retrospective in operation,
will be valid.
After
enunciating this principle the court interpreted section 11 of the Probation of
Offenders Act and came to the conclusion that on a true interpretation of the
provision the High Court had jurisdiction to exercise the power at the
appellate stage, and this power was not confined to a case where the trial
court could have made that order. The phraseology of the section was wide
enough to enable the appellate court or the High Court when the case came
before it, to make such an order.
We,
therefore, do not find that Rattan Lal made a departure from the well settled
principle that no person shall be convicted of any offence except for violation
of a law in force at the time of the commission of that act charged as an
offence, nor be subjected to a penalty greater than with which he might have
been inflicted under the law in force at the time of the commission of the
offence. This Court only laid down the principle that an ex post facto law
which only mollifies the rigour of a criminal law did not fall within the said
prohibition, and if a particular law made a provision to that effect, though
retrospective in operation, it will be valid" Interpretation of a statute
depends upon the text and context thereof and having regard and object with
which the same was made.
The
aforementioned provision of the 2000 Act is furthermore a remedial statute.
(See discussions of G.P. Singh's Principles of Statutory Interpretation, Ninth
Edition, 2004, page 733) They are, thus, required to be given liberal
construction.
A
remedial statute applied in a pending proceeding would not mean that thereby a
retrospective effect and retroactive operation is being given thereto.
We do
not intend to say that no other view is possible. But in a case of this nature
where an additional protection had been granted pursuant to or in furtherance
of the international treaties and keeping in view of the experience which had
been gathered by the Parliament after coming into force of the 1986 Act, we
think that it should be read in such a fashion so that the extended benefit can
be granted even to the juvenile under the 2000 Act. Furthermore, sub-section
(2) of Section 69 provides that all proceedings shall be deemed to have been
held under the new Act. This is also suggestive of the fact that the new Act
would, to the aforementioned extent, apply to a pending proceeding which was
initiated under the 1986 Act.
MODEL
RULES:
We,
however, do not agree that the model rules have been framed in terms of the
provisions of the Act so as to attract the principles that rules validly framed
are to be treated as part of the Act. It is one thing that the rules validly
framed are to be treated as part of the Act as has been Others [(2004) 3 SCC
297] but the said principle has no application herein as in terms of the
provisions of the said Act, the Central Government does not have any authority
to make any rules. In absence of any rule making power it cannot refer to the
omnibus clause of power to remove difficulty inasmuch as it has not been stated
that framing of any model rule is permissible if a difficulty arises in giving
effect to the provision of the Act.
The
Central Government is a statutory functionary. Its functions are circumscribed
by Section 70 of the Act only. It has not been authorized to make any rule.
Such rule making power has been entrusted only to the State. The Central
Government has, thus, no say in the matter nor can it exercise such power by
resorting to its power 'to remove difficulties'. Rule making power is a
separate power which has got nothing to do with the power to remove difficulty.
By reason of the power to remove difficulty or doubt, the Central Government
has not been conferred with any legislative power. The power to remove doubt or
difficulty although is a statutory power but the same is not akin to a
legislative power and, thus, thereby the provisions of the Act cannot be
altered. [See M/s Jalan Trading Co. Private Ltd. vs. Mill Mazdoor Sabha AIR
1967 SC 691 at 703] The age of the delinquent juvenile, therefore, cannot be
determined in terms of the model rules 62. Any law mandating the court to take
into consideration certain documents over others in determining an issue, must
be provided for only by law. Only a validly made law can take away the power of
the court to appreciate evidence for the purpose of determination of such a
question in the light of Section 35 of the Indian Evidence Act. It cannot be
done by the Central Government in exercise of the executive In Birad Mal Singhvi
vs. Anand Purohit [AIR 1988 SC 1796] , this Court held :
"...To
render a document admissible under Section 35, three conditions must be
satisfied, firstly, entry that is relied on must be one in a public or other
official book, register or record, secondly, it must be an entry stating a fact
in issue or relevant fact, and thirdly, it must be made by a public servant in
discharge of his official duty, or any other person in performance of a duty
specially enjoined by law. An entry relating to date of birth made in the
school register is relevant and admissible under Section 35 of the Act but the
entry regarding to the age of a person in a school register is of not much
evidentiary value to prove the age of the person in the absence of material on
which the age was recorded..." In Sushil Kumar vs. Rakesh Kumar [(2003) 8
SCC 673], this Court as regard determination of age of a candidate in terms of
Section 36(2) of the Representation of the People Act, 1951 observed :
"32.
The age of a person in an election petition has to be determined not only on
the basis of the materials placed on record but also upon taking into
consideration the circumstances attending thereto. The initial burden to prove
the allegations made in the election petition although was upon the election
petitioner but for proving the facts which were within the special knowledge of
the respondent, the burden was upon him in terms of Section 106 of the Evidence
Act. It is also trite that when both parties have adduced evidence the question
of the onus of proof becomes academic [See Union of India vs. Sugauli Sugar
Works (P) Ltd. [(1976) 3 SCC 32] and Cox and Kings (Agents) Ltd. vs. Workmen
[(1977) 2 SCC 705].
Furthermore,
an admission on the part of a party to the lis shall be binding on him and in
any event a presumption must be made that the same is taken to be
established." This Court therein followed, inter alia, Birad Mal Singhvi
vs. Anand Purohit [AIR 1988 SC 1796] and several other decisions.
The
Court, therefore, must determine the age of the appellant herein keeping in
view our aforementioned findings that the relevant date for reckoning the age
of the juvenile would be the date of occurrence and not the date on which he
was produced before the Board.
The
upshot of the aforementioned discussions is :
(i) In
terms of the 1986 Act, the age of the offender must be reckoned from the date
when the alleged offence was committed;
(ii)
The 2002 Act will have a limited application in the cases pending under the
1986 Act;
(iii)
The model rules framed by the Central Government having no legal force cannot
be given effect to.
(iv)
The court, thus, would be entitled to apply the ordinary rules of evidence for
the purpose of determining the age of the juvenile taking into consideration
the provisions of Section 35 of the Indian Evidence Act.
Subject
to the aforementioned, I, with respect, agree with the conclusions arrived at
by Brother Sema, J.
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