IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Misc.No.16692 of 2009 (O&M)
Date of decision : 5.9.2009
Supreet Singh Dilawar
....Petitioner
Versus
State of U.T., Chandigarh
...Respondent
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present: Mr.Manish Bhardwaj, Advocate
for the petitioner.
Mr. Hemant Bassi, Advocate
for the respondent.
.....
MAHESH GROVER, J.
This is a petition under Section 439 of the Code of
Criminal Procedure read with Section 53 of the Juvenile Justice (Care
and Protection of Children)Act, 2000 for grant of bail in case FIR
No.89 dated 5.5.2009 under Sections 354, 376, 377, 506, 511, 292
IPC and Section 67-B (b&e) of I.T.Act, registered at Police Station
Sector 31, Chandigarh.
The petitioner who is a juvenile is facing the allegations
under the aforesaid offences. He is in custody since 5.5.2009. The
Principal Judge, Juvenile Justice Court, Chandigarh declined the
prayer of the petitioner on the ground that a heinous offence has been
committed.
Crl.Misc.No.16692 of 2009 (O&M) -2-
The learned counsel for the petitioner while assailing the
impugned order dated 20.5.2009 has contended that the petitioner
being a juvenile is entitled to the concession of bail in accordance
with the provisions of Section 12 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter referred to as ‘the Act’)
and the impugned orders are unsustainable in the eyes of law.
On the other hand, learned counsel for the Union
Territory, Chandigarh has contended that the petitioner is involved in
a serious offence and he does not deserve the concession of bail even
if he is a juvenile.
I have heard the learned counsel for the parties.
Section 12 of the Act reads as under :-
“Bail of juvenile. –(1) When any person
accused of a bailable or non-bailable offence, and
apparently a juvenile, is arrested or detained or appears or
is brought before a Board, such person shall,
notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974) or in any other law
for the time being in force, be released on bail with or
without surety or placed under the supervision of a
Probation Officer or under the care of any fit institution or
fit person but he shall not be so released if there appear
reasonable grounds for believing that the release is likely
to bring him into association with any known criminal or
expose him to moral, physical or psychological danger or
that his release would defeat the ends of justice.
Crl.Misc.No.16692 of 2009 (O&M) -3-
(2) When such person having been arrested is
not released on bail under sub-section (1) by the officer
incharge of the police station, such officer shall cause him
to be kept only in an observation home in the prescribed
manner until he can be brought before a Board.
(3) When such person is not released on bail
under sub-section (1) by the Board it shall, instead of
committing him to prison, make an order sending him to
an observation home or a place of safety for such period
during the pendency of the inquiry regarding him as may
be specified in the order.”
According to the aforesaid section, a juvenile may not be
released on bail if there appears a reasonable ground for believing
that the release of the petitioner is likely to bring him into association
with any known criminal or expose him to moral, physical or
psychological danger or that his release would defeat the ends of
justice. If the facts of the case and the material on record is to be
reconciled in view of the aforesaid provisions of law,then it seems
that the apprehension of the Principal Judge seems to be misplaced.
The entire purpose of the Act is reformatory and keeping
in view this purpose in mind the provisions of Section 15 have been
enacted which lays down as follows :-
“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
Crl.Misc.No.16692 of 2009 (O&M) -4-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
good behaviour 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 behaviour 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:
Crl.Misc.No.16692 of 2009 (O&M) -5-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.
(2) The Board shall obtain the social
investigation report on juvenile either through a
probation officer or a recognised voluntary organisation
or otherwise, and shall take into consideration the
findings of such report before passing an order.
(3) Where an order under clause (d), clause
(e) or clause (f) of sub-section (1) is made, the Board
may, if it is of opinion that in the interests of the juvenile
and of the public, it is expedient so to do, in addition
make an order that the juvenile in conflict with law shall
remain under the supervision of a probation officer
named in the order during such period, not exceeding
three years as may be specified therein, and may in such
supervision order impose such conditions as it deems
necessary for the due supervision of the juvenile in
conflict with law:
Provided that if at any time afterwards it appears to
the Board on receiving a report from the probation
officer or otherwise, that the juvenile in conflict with law
has not been of good behaviour during the period of
supervision or that the fit institution under whose care
Crl.Misc.No.16692 of 2009 (O&M) -6-the juvenile was placed is no longer able or willing to
ensure the good behaviour and well-being of the juvenile
it may, after making such inquiry as it deems fit, order
the juvenile in conflict with law to be sent to a special
home.
(4) The Board shall while making a
supervision order under sub-section (3), explain to the
juvenile and the parent, guardian or other fit person or fit
institution, as the case may be, under whose care the
juvenile has been placed, the terms and conditions of the
order and shall forthwith furnish one copy of the
supervision order to the juvenile, the parent, guardian or
other fit person or fit institution, as the case may be, the
sureties, if any, and the probation officer.”
The aforesaid functions are to be carried out by the
Juvenile Justice Board. It envisages broad number of functions and
duties that the Board has to carry out to ensure that the juvenile who
has come in conflict with law by going astray comes into the main
stream. The matters which have been enlisted in Section 15 of the Act
are not to be construed as exclusive but the Board has to act in the
spirit of the law and ensure that the purpose for which it is enacted is
carried out. For that purpose the Board at the time of considering the
bail application of a juvenile ought to explore the possibility of
resorting to the options which have been entailed in Section 15 of the
Act which includes group counselling and counselling through the
agencies of professional counsellors to such delinquent juveniles so
Crl.Misc.No.16692 of 2009 (O&M) -7-
that the process of reforming them is put on track.
The Principal Magistrate is to act by imbibing the spirit
of the statute and not merely act by sticking to the letter of the statute
while stripping it of its soul.
If the provisions of the Act are to be seen, then the very
appointment of a Principal Magistrate is to be made from persons
who have special knowledge or training in child psychology or child
welfare. Section 4 (2) of the Act provides the constitution of the
Board which shall consist of a Metropolitan Magistrate or a Judicial
Magistrate of the first class, as the case may be and two social
workers of whom at least one shall be a woman, forming a Bench and
every such Bench shall have the powers conferred by the Code of
Criminal Procedure. The Magistrate shall be designated as a Principal
Magistrate. Section 4(3) further provides that no Magistrate shall be
appointed as a member of the Board unless he has special knowledge
or training in child psychology or child welfare and no social worker
shall be appointed as a member of the Board unless he has been
actively involved in health, education or welfare activities pertaining
to children for at least seven years. Section 4(5) of the Act provides
for removal of any member of the Board on the grounds which have
been enumerated therein which include the failure to attend the
proceedings of the Board for consecutive three months.
The emphasis of the Principal Magistrate having
knowledge or training in child psychology or child welfare seemingly
is not being adhered to which is leading to a situation where a
Principal Magistrate addresses the concern of a juvenile with a mind
Crl.Misc.No.16692 of 2009 (O&M) -8-
set of an ordinary court dealing with an accused, often resulting in
harshness of an approach which is totally contrary to the spirit of the
Act.
The Court is also concerned with the larger aspect of the
matter as to whether the Boards constituted are actually meeting
regularly along with its members or is the process being observed
more in violence than in adherence. It is incumbent upon the
Principal Magistrate while dealing with the matters under Section 12
of the Act to simultaneously pass orders under the provisions of
Section 15 of the Act and not merely pass an order shutting out the
concession of bail as also shutting out any of the options available
under Section 15 of the Act. In fact, even before the Principal
Magistrate or the Board proceeds to determine the matter under
Section 12, the compliance of procedure under Section 10 has to be
ensured where police has to produce the juvenile before the Board
without any loss of time and within 24 hours of his being
apprehended.
Reverting back to the facts of the case, it is appalling to
note that the order of the Principal Judge does not take into
consideration any of the aforesaid steps either undertaken by the
Board or by the Magistrate himself by referring the matter to the
Board. As a result the order merely pays lip service to the provisions
of law without making any endeavour to reconcile it with the spirit
with which the enactment has been created.
The court while evaluating the chance of harm to a
juvenile in conflict with law, has to base its opinion on some
Crl.Misc.No.16692 of 2009 (O&M) -9-
material, which necessarily may not stem from the gravity of the
offence. Therefore it should while dealing with bail under Section 12,
simultaneously explore the options given in Section 15, which should
also include the opinion of a professional counsellor so as to come to
a conclusion that his enlargement on bail is likely to or not likely to
expose him to a known criminal or expose him to moral physical or
psychological danger.
In this case the Principal Judge has not kept in mind the
requirement of Section 12 of the Act while declining the bail to a
juvenile. The reason given is a mere piracy of language of the statute
which more or less has been influenced by the gravity of the offence;
and merely because he committed a heinous offence cannot be made
a ground for not releasing the petitioner on bail. I find strength and
sustenance in the observations made by the Supreme Court in Partap
Singh v. State of Jharkhand and another, 2005(3) S.C.C. 551 which
read as under :-
“8. Thus, the whole object of the Act is to provide for the
care, protection, treatment, development and
rehabilitation of neglected delinquent juveniles. It is a
beneficial legislation aimed at to make available the
benefit of the Act to the neglected or delinquent
juveniles. It is settled law that the interpretation of the
Statute of beneficial legislation must be to advance the
cause of legislation to the benefit for whom it is made
and not to frustrate the intendment of the legislation.”
In this view of the matter and for the reasons which have
Crl.Misc.No.16692 of 2009 (O&M) -10-
been stated above, the present petition is accepted and the petitioner
is directed to be released on bail to the satisfaction of Principal
Judge, Juvenile Justice Court, Chandigarh. However, before releasing
the petitioner on bail the court shall ensure that the father of the
petitioner furnishes an affidavit and undertaking to the Court that he
shall ensure that his son does not repeat any such occurrence. The
Principal Judge through the agency of the Board shall also ensure that
regular counselling is provided to the petitioner in order to obviate
the recurrence of any such act.
Before parting with the order this Court deems it
appropriate to issue directions to all the Principal Magistrates in the
State of Punjab and Haryana conferred with the powers under the Act
and the Advocates General, Haryana and Punjab and the Standing
Counsel of U.T., Chandigarh to place on record the requisite material
showing the following :-
i) The constitution of the Board and the manner in which two
social workers have been appointed to the Board and whether
they fulfill the conditions prescribed in Section 4(2) and 4(3)
of the Act;
ii) Whether the proceedings of the Board are being conducted
regularly and if so, at what intervals and whether all the
members are attending the proceedings or not;
iii) Whether on apprehension of a juvenile the procedure under
Section 10 of the Act is being followed or not; and
iv) Whether the Principal Magistrates are complying with the
provisions of Section 15 of the Act while determining the
matters which come up for consideration before the Board
Crl.Misc.No.16692 of 2009 (O&M) -11-
including the grant of bails under Section 12 of the Act.
List for further proceedings on 28.10.2009.
September 5, 2009 (MAHESH GROVER)
JUDGE
dss