JUDGMENT
Badar Durrez Ahmed, J.
Page 1337
1. This petition raises the question of whether a juvenile in conflict with law would be entitled to set-off of the period of detention undergone by him during inquiry against the period of confinement consequent upon an order Page 1338 passed under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘the said Act’) ?
2. On 20.12.2006, inter alia, the following order was passed by this Court:
I have heard the learned Counsel for the parties. By an order dated 12.12.2006 the petitioner’s sentence was directed to be suspended. It was found that the petitioner even though, he was a juvenile, was in custody in Tihar Jail. Pursuant to this order the petitioner had been released on a personal bond in the sum of Rs 5,000/-. Having heard the arguments at length, I am of the view that the impugned order requires to be set aside and the petitioner is entitled to be released forthwith. The arguments advanced were entirely on the question of sentence. So while the conviction is being maintained, purely on the issue of sentence, the petitioner is directed to be released forthwith. Since the petitioner is on bail his bond stands discharged and he is set at liberty. A reasoned order with regard to this particular case shall be passed separately.
The present order indicates the reasons for the said order dated 20.12.2006.
3. The admitted facts are that by an order dated 16.05.2006, the Juvenile Justice Board was satisfied that the petitioner, who is a juvenile in conflict with law, had committed an offence under Section 302/392/397/34 IPC in respect of the FIR No. 359/1999 registered at P.S. Hazrat Nizamuddin, Delhi. By its order on sentence passed on 16.05.2006, the Juvenile Justice Board directed as under:
Release of the juvenile in the society in these facts and circumstances, would neither be in the interest of society nor in the interest of juvenile who needs behavior modification for a considerable time period. Juvenile needs strict supervision in this regard, which is possible only in a Custodial Institution. He is above 18 years of age now and so, cannot be kept in the Specified Home. In these facts and circumstances of the matter, it is thought just and proper to send the juvenile to the Place of Safety for a period of two years. Juvenile be provided with the regular counselling for his behavior modification during this period. Juvenile be also involved in vocational training so that he is able to earn his livelihood when he is released.
4. Being aggrieved by the order of conviction as well as the order on sentence, the petitioner preferred an appeal before the Sessions Court. In the course of the appeal, the counsel appearing on behalf of the petitioner, did not press arguments in respect of the order of conviction/satisfaction, but only advanced arguments on the order of sentence. The same is the position with regard to the present revision petition. In other words, the only question is with regard to the sentence.
5. Before the learned Additional Sessions Judge, it was contended on behalf of the petitioner that the order directing the petitioner to be sent to a Place of Safety for two years did not take into account the benefit which the petitioner ought to have been granted in view of the principles embedded in Section 428 Page 1339 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’). It was contended that the petitioner had already been under detention as an under trial for more than five years. The date of the occurrence was 21/22.6.1999. The petitioner was arrested on 24.06.1999. At that point of time, he was between 14-15 years of age. It was contended on behalf of the petitioner before the learned Additional Sessions Judge that the period of detention of the petitioner from 24.06.1999 to 16.05.2005 ought to have been set-off against the ultimate sentence of two years of detention in a Place of Safety. According to this argument, if that was to be done, then the petitioner was liable to be released forthwith.
6. The learned Additional Sessions Judge rejected the argument on the ground that Section 428 of the Code permitted the setting-off of a period of detention undergone by an accused during investigation / trial against the ultimate “sentence of imprisonment”. She submitted that the set-off of the period of detention was permissible only if there was an order of “sentence of imprisonment”. The learned Additional Sessions Judge was of the view that the order passed by the Juvenile Justice Board requiring the petitioner to be kept in a Place of Safety for a period of two years did not amount to a sentence of imprisonment and, therefore, the provisions of Section 428 of the Code would not be applicable.
7. Another important but unfortunate event ought to be noted in this case. The same being that pursuant to the order dated 16.05.2005 passed by the Juvenile Justice Board requiring the petitioner to be kept in a Place of Safety for two years, the petitioner was sent, not to a Place of Safety, but, to Jail No. 5, Tihar, New Delhi and he was in detention in the said Jail from 16.05.2005 till 12.12.2006, i.e., for a period of about one year and seven months. It is an admitted position that the petitioner was kept in Tihar Jail from 16.05.2005 till 12.12.2006 when this Court by an order passed on that date in this revision petition had directed the suspension of sentence and had also directed that the petitioner be released forthwith from Tihar Jail on his furnishing a personal bond in the sum of Rs. 5,000/-.
8. The question that arises for consideration in the present case is: whether a juvenile can be denied the benefit of set-off of his period of detention pending an inquiry under the said Act in respect of the ultimate order that is passed upon conclusion of the inquiry under Section 15 of the said Act? It is true that Section 428 of the Code refers to “sentence of imprisonment” and it is also true that the order passed in the present case directing the petitioner to be kept in a Place of Safety for two years is, strictly speaking, not a “sentence to imprisonment”. Therefore, strictly speaking, Section 428 of the Code would not applicable. However, the principles analogous to those involved in Section 428 of the Code could, in my view, be applied to the present case.
9. As noted in the case of State of Maharashtra v. Najakat Ali Mubarak Ali , the ideology enshrined in Section 428 of the Code can be Page 1340 discerned by having a look at the Objects and Reasons for bringing about the provision. The Objects and Reasons are as under:
The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes courts do take into account the period of detention undergone as undertrial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are undertrial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting-off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision contained in the new clause would go a long way to mitigate the evil.
Reading the above Statement of Objects and Reasons, it becomes clear that the salutary provision of Section 428 was introduced by the Legislature into the statute book to alleviate the problems faced by persons who underwent long periods as undertrial prisoners. Similarly, where a juvenile in conflict with law is kept under detention pending an inquiry under the said Act, he should also be granted the same benefit while passing an order under Section 15 thereof. Though there is no statutory provision such as Section 428 of the Code which would be specifically and clearly applicable to the case of juveniles, in my view, principles analogous to the same can be invoked by the Juvenile Justice Board while passing an order under Section 15. An examination of the provisions contained in Section 15(1) of the Act would be necessary:
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 so thinks fit,-
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile.
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the Page 1341 good behavior and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behavior and well-being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home for a period of three years:
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.
10. The Board has ample power, if it is satisfied that having regard to the nature of the offence and the “circumstances of the case”, it is expedient to reduce the period of stay in, inter alia, a Place of Safety. In my opinion, the principles analogous to those of Section 428 of the Code can be read into the expression “circumstances of the case” to enable the Board to reduce the period of stay that it may direct upon the completion of inquiry.
11. I would also like to point out that the scheme of the Act requires the Board to act as expeditiously as possible, particularly because it deals with juveniles. A look at Section 14(1) and its proviso would make this abundantly clear. The said proviso requires that the inquiry shall be completed within a period of four months from the date of its commencement unless the period is extended by the Board having regard to the circumstances of the case and special cases, after recording the reasons in writing for such extension. This gives an indication that under normal circumstances, a juvenile, who does not have the benefit of having been released on bail under Section 12(1), but is sent to a Special Home or a Place of Safety under Section 12(3) during the pendency of inquiry regarding him, shall not have to remain in such a limbo for more than four months. The maximum period of sending a person to a Special Home, now prescribed under the amended Section 15(1)(g) is three years. Reference may also be made to the provisions of Section 65 of the Act which also indicate that the sentence shall not exceed the maximum period provided under Section 15 of the Act even in respect of those juveniles who were undergoing sentence at the time of introduction of the said Act.
12. In the present case, what has happened is that the inquiry has dragged on for over five years, when it ought to have been completed within four months. The petitioner has been under detention throughout the period of inquiry of about five years and to make the matters worse, when the Juvenile Justice Board directed the petitioner to be sent to a Place of Safety, he was, instead, sent to Central Jail No. 5, Tihar, New Delhi where he spent one year and seven months, as indicated above. There are, therefore, more reasons than one that the petitioner ought to be released forthwith and it is because of this that I had passed the order dated 20.12.2006. The impugned order dated 12.07.2006 is set aside.
This revision petition is allowed.