6. Powers of Juvenile Justice Board:(1) X X X(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.
So much so, when any proceeding in relation to a juvenile comes before the High Court or the Court of Session all powers conferred on the Board under the Act can be exercised. Such proceeding need not arise from appeal or revision. The words "or otherwise" used in sub-s.(2) of S. 6 of the Act is quite significant and it has to be given true meaning and spirit taking note of the objectives of the enactment When that be so, even in an application moved under S. 438 of the Code, orders could be passed by the Sessions Judge exercising the powers of the Juvenile Justice Board. At any rate, orders passed by the Sessions Judge should be in conformity with the provisions of the Act and not against or violative of the spirit and objectives of that Act. Where the police apprehends a juvenile in conflict with law, the Act mandates for placing the juvenile in charge of the special juvenile police unit or the designated police officer, and, such unit or police officer further bound to report the matter immediately to a member of the Juvenile Justice Board, there could be no direction or order to release the juvenile in the event of his arrest on execution of a bond as passed under Annexure-V order. Mandatory prescriptions covered by S. 10 of the Act have to be complied with by the police officer in the event of apprehension/arrest of juvenile in conflict with law, and once custody of the apprehended juvenile is handed over to the juvenile special unit or the designated police officer, what is his control over the juvenile is also taken care of under S. 11 of the Act. Such being the provisions covered by the Act to ensure the right of the juvenile in conflict with law, to prevent him from being exposed to police and police stations, Annexure-V order passed directing execution of bond by the petitioner in the event of his arrest and all other conditions imposed thereunder have no sanction of law, and they are vacated.
2013CriLJ851, ILR2013(1)Kerala48, 2013(1)KLJ102, 2012(4)KLT755, 2013(1)RCR(Criminal)809
IN THE HIGH COURT OF KERALA
Decided On: 16.11.2012
Appellants: Gopakumar
Vs.
Respondent: State of Kerala
Vs.
Respondent: State of Kerala
Hon'ble Judges/Coram:
Hon'ble Mr. JusticeS.S. Satheesachandran
Hon'ble Mr. Justice
1. The application has been filed by a juvenile, who is proceeded along with his father as accused in a crime registered for offences punishable under Ss. 308 and323 read with S. 34 of the Indian Penal Code, for short, the 'IPC.' Both the accused, father and son, jointly moved an application before the Sessions Judge for pre-arrest bail under S. 438 of the Code of Criminal Procedure, for short, the 'Code'. Discretionary relief canvassed by the father, who is the 1st accused, was turned down; but, that of the petitioner/juvenile, the 2nd accused, was allowed by the Sessions Judge imposing some conditions vide Annexure-V order. Operative portion of the order passed reads thus:
In the result, the Criminal Miscellaneous Petition is allowed in part and the respondent is directed to enlarge the second petitioner on bail in the event of his arrest on himself executing a bond for 25,000/- (Rupees Twenty Five thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer and subject to the conditions laid down herein below:1. The second petitioner shall report before the Investigating Officer in between 9 a.m. and 11 a.m. on all Mondays and Thursdays commencing from 8th October, 2012 for a period of three months or till the filing of the final report in the case in question, whichever is earlier.2. The second petitioner shall make himself available for interrogation by a Police Officer as and when required.3. The second petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.4. The second petitioner shall not tamper with the evidence or influence the witnesses.5. The second petitioner shall not involve in any offence while on bail.
In case of violation of any of the aforesaid conditions, the respondent is at liberty to move for cancellation of bail.
Among the conditions imposed, the juvenile has been directed to report before the Investigating officer twice a week on the days fixed for a period of three months or till the filing of final report in the crime, whichever is earlier. He is also directed to make himself available for interrogation by a Police officer as and when required. Petitioner has filed the above petition to vacate the above conditions imposed by the learned Sessions Judge contending that such conditions are too harsh for compliance. Petitioner is a student, and, it is stated, after the occurrence involved in the crime he has been forced to shift his studies to a different school. He has produced with the petition Annexures-III and TV, photocopies of the identity cards issued from two different schools to show shifting of his studies. Annexure-I is copy of his School leaving certificate wherein his date of birth is shown as 25.2.1996. Asserting that he is totally innocent and has been falsely implicated in the crime, petitioner submits that the direction issued for his reporting before the Investigating officer at the police station is too harsh and that will harm his image before the students and teachers. His mental health and academic future will be ruined if he is forced to comply with the condition, is his further case to seek lifting of those conditions.
2. Annexure II is copy of the F.I.R. registered in the crime. Statement of the de facto complainant for registering the crime forms part of it. The gist of the accusation is that the accused, father and son, conjointly assaulted the de facto complainant, and the 1st accused, father, is alleged to have stabbed him with a knife aiming at the chest, which, being warded off, caused an injury to his abdomen. Petitioner/son/second accused is alleged to have struck with his hands on the posterior side of the de facto complainant. Statement of the de facto complainant was recorded by the police while he was in hospital after the occurrence. I have adverted to the gist of the accusation only for the purpose of taking note of the allegations imputed against the petitioner/juvenile to proceed against him for the offences imputed with the co-accused, his father.
3. Crime registered against the petitioner for the offences imputed shows that he is a juvenile in conflict with law as defined under the Juvenile Justice (Care & Protection of Children) Act, 2000, hereinafter referred to as the 'Act'. A juvenile in conflict with law apprehending arrest in a non-bailable offence, no doubt, will be entitled to seek the discretionary relief of pre-arrest bail envisaged under S. 438 of the Code. That Section takes within its ambit "any person" to seek such relief when he has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. "Person" is not defined under the Code. However, it is to be noticed where the word is not defined under the Code, the definition, if any, given for such word in the IPC has to be assigned for such word used in the Code. S. 2(y) of the Code states thus:
2. Definitions:- In this Code, unless the context otherwise requires,-x x x(y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code.In the I.P.C. under S. 11, "person" is defined and it takes within its ambit any company or association or body of persons, whether incorporated or not. S. 10 of the I.P.C. defines 'man' as a male human being and 'woman' as a female human being, both of them, of any age. So much so, the juvenile in conflict with law who also comes within the meaning of "person" covered by S. 438 of the Code is entitled to canvass for the discretionary relief thereunder.
4. However, right of the juvenile or juvenile in conflict with law to seek pre-arrest bail having apprehension of his arrest on accusation of a non-bailable offence is not the decisive question that may emerge for consideration before the court when such a request is made by such a person. That has necessarily to be considered and examined with reference to the laudable objectives behind the enacting of the 'Act' and the duty cast upon the court to see that the right of a juvenile or juvenile in conflict with law is not in any way impaired. More so, to ensure that none of the provisions of the Act in relation to such juvenile is violated. The Act has been primarily enacted taking note that the justice system as available for adults is not suitable and cannot be applied to a juvenile or a child. A new system 'Juvenile justice system' is provided under the Act to protect the interests of the juvenile. Even when a juvenile in conflict with law is apprehended or arrested by police, the mandate of the Act is that such juvenile shall be placed under the charge of the special juvenile police unit or the designated police officer. What should be done on apprehension of a juvenile in conflict with law is covered by S. 10 of the Act, which commands that the special juvenile police unit or the designated police officer, to which/whom the juvenile is handed over, shall immediately report to the member of the Board. Juvenile Justice Board is the authority before which the apprehended or arrested juvenile has to be produced, and on such production, it has to pass orders whether he is to be released on bail with or without sureties. Release of the juvenile even where he is accused of a non-bailable offence can be denied only where the Board is satisfied that there are reasonable grounds for believing that his 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. When such be the law governing the grant of bail to a juvenile even when he is accused of a non-bailable offence on the authority Juvenile Justice Board, after his arrest or apprehension and production, the directions issued under Annexure-V order by the learned Sessions Judge, which have been referred to earlier, compelling the juvenile to report before the police station during the investigation of the crime, are totally unsustainable. Where the salutary provisions covered by the Act insulate the juvenile or the child from being exposed to the vagaries of the police, and also from the justice system applicable to the rest of the society, mandating how they are to be dealt with even on arrest or apprehension, and a separate body and other authorities are provided constituting a juvenile justice system to deal with them, the directions given under Annexure-V order exposing and compelling the juvenile to suffer at the hands of police, asking him to report to the police station and investigating officer is Violative of the Act.
5. What should have been done by the learned Sessions Judge when the juvenile applied for anticipatory bail, which in the present case was opposed by the Public Prosecutor, has also to be looked into. So far as the juvenile in conflict with law, the competent authority to deal with him is the Juvenile Justice Board. But, it has to be noticed whatever powers enjoined by the Juvenile Justice Board can be exercised by the High Court or the Court of Session. S. 6 of the Act deals with the powers of the Juvenile Justice Board. Sub-s.(2) of that section reads thus:
6. Powers of Juvenile Justice Board:(1) X X X(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.
So much so, when any proceeding in relation to a juvenile comes before the High Court or the Court of Session ail powers conferred on the Board under the Act can be exercised. Such proceeding need not arise from appeal or revision. The words "or otherwise" used in sub-s.(2) of S. 6 of the Act is quite significant and it has to be given true meaning and spirit taking note of the objectives of the enactment When that be so, even in an application moved under S. 438 of the Code, orders could be passed by the Sessions Judge exercising the powers of the Juvenile Justice Board. At any rate, orders passed by the Sessions Judge should be in conformity with the provisions of the Act and not against or violative of the spirit and objectives of that Act. Where the police apprehends a juvenile in conflict with law, the Act mandates for placing the juvenile in charge of the special juvenile police unit or the designated police officer, and, such unit or police officer further bound to report the matter immediately to a member of the Juvenile Justice Board, there could be no direction or order to release the juvenile in the event of his arrest on execution of a bond as passed under Annexure-V order. Mandatory prescriptions covered by S. 10 of the Act have to be complied with by the police officer in the event of apprehension/arrest of juvenile in conflict with law, and once custody of the apprehended juvenile is handed over to the juvenile special unit or the designated police officer, what is his control over the juvenile is also taken care of under S. 11 of the Act. Such being the provisions covered by the Act to ensure the right of the juvenile in conflict with law, to prevent him from being exposed to police and police stations, Annexure-V order passed directing execution of bond by the petitioner in the event of his arrest and all other conditions imposed thereunder have no sanction of law, and they are vacated.
In case, any further proceedings in connection with the crime against the petitioner/ juvenile on the basis of the investigation proceeded is called for, men, the investigating officer shall take appropriate steps under the Act, and in such event, the Juvenile Justice Board, after due enquiry, shall pass appropriate orders in respect of the juvenile in accordance with the provisions of the Act.
Crl. M.C. is disposed of.
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