Updated: 2 days ago
Navkiran Singh & Associates have challenged an order in which a Juvenile was declared a proclaimed offender as the lower court overlooked the fact that the child was a Juvenile and as per the Juvenile Justice Act he cannot be declared a Proclaimed Offender. The matter was challenged before the Hon’ble Hight court in which notice of motion was issued on 27.11.2020 keeping in view the provisions of the Juvenile Justice Act, 2015 submitted by Mr. Navkiran Singh and now the matter is pending before the Hon’ble bench for further consideration.
According to sub-section 12 of Section 2 of The Juvenile (Care and Protection) Act, 2015 a “child” means a person who has not completed eighteen years of age. A Juvenile as per sub-section 35 of Section 2 of The Juvenile (Care and Protection) Act, 2015 means a child below the age of eighteen years. If a Juvenile comes under the conflict of law he is always proceeded as per The Juvenile Justice (Care and Protecting of Children) Act, 2015(herein referred as Act) and not as per the Criminal procedure Code, 1973. The Juvenile Justice (Care and Protection of Children) Act, 2015 has come into force from January 15, 2016 and repeals the Juvenile Justice (Care and Protection of Children) Act, 2000. The key feature of the act would be to achieve the objectives of the United nations Convention on the Rights of Children as ratified by India on December 11,1992. Further, it would be relevant to state that India is a signatory to the United Nations Convention on the Rights of the Child, 1989 which makes it obligatory upon the signatory States to take all necessary steps to protect the rights of the children as set out in the Convention. The act provides procedural safeguards in cases of children in conflict with law and it mandates setting up Juvenile Justice Boards and Child Welfare Committees in every district. Both must have at least one-woman member each. Special provisions have been made to tackle child offenders committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is given the option to transfer cases of heinous offences by such children to a Children's Court (Court of Session) after conducting a preliminary assessment. The Juvenile Justice (Care and Protection of Children) Act, 2015, has specific provisions which deals with runaway Juveniles who are in conflict with the law; hence, it would be illegal for any court to pass any orders in which the Juvenile can be declared a Proclaimed offender/person in terms of Section 82(1) of the Criminal Procedure Code.
In this article we will cover some important provisions and rules of the Juvenile Justice Act, vide which it would be apparent that a Juvenile cannot be declared a proclaimed offender in terms of section 82 Cr.P.C. That any proceedings against a juvenile can only be proceeded by the Juvenile Justice Board which is constituted under Section 4 of the J.J Act. The Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years experience and two social workers selected in such manner as may be prescribed, 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, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class
RELEVANT PROVISIONS OF THE OF THE JUVENILE JUSTICE (CARE AND PROTECTING OF CHILDREN) ACT, 2015
That as per Rule 9 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 once the FIR is registered against a Juvenile, in such circumstances the police officials have to forward this information to the Juvenile Justice Board, thereafter the board shall have required the child to appear before it at the earliest so measures for rehabilitation, where necessary, can be initiated The relevant Rule 9(4) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 are being reproduced as under;-
Production of the child alleged to be in conflict with law before the Board
9(4) Where the child alleged to be in conflict with law has not been apprehended and the information in this regard is forwarded by the police or Special Juvenile Police Unit or Child Welfare Police Officer to the Board, the Board shall require the child to appear before it at the earliest so that measures for rehabilitation, where necessary, can be initiated, though the final report may be filed subsequently.
A Juvenile cannot be proceeded under section 82(1) Criminal Procedure Code as its Anti-thesis to the provisions of the Act. It would not be wrong to suggest that Section 82 of Cr.P.C cannot stand together with the provisions of the Juvenile Justice (Care and Protection of Children) Act,2015, being anti-thesis of each other. That as per the Juvenile Justice (Care and Protection of Children) Act,2015, there is a specific provision concerning runaway children in conflict with the law. The relevant Section 26 of the Act is being reproduced as under:-
26. (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, any police officer may take charge of a child in conflict with law who has run away from a special home or an observation home or a place of safety or from the care of a person or institution under whom the child was placed under this Act.
(2) The child referred to in sub-section (1) shall be produced, within twenty-four hours, preferably before the Board which passed the original order in respect of that child, if possible, or to the nearest Board where the child is found.
(3) The Board shall ascertain the reasons for the child having run away and pass appropriate orders for the child to be sent back either to the institution or person from whose custody the child had run away or any other similar place or person, as the Board may deem fit:
Provided that the Board may also give additional directions regarding any special steps that may be deemed necessary, for the best interest of the child.
(4) No additional proceeding shall be instituted in respect of such child.
If the Child Welfare Police Officers fails to produce the child before the Board even after the issuance of the direction for production of the child, then the Board shall instead of issuing the process under section 82 of the code of criminal procedure,1973 pass orders as appropriate under Section 26 of the Act. The Relevant Rule 10(4) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, are being reproduced as under:-
Post-production processes by the Board
10. (4) If the Child Welfare Police Officer fails to produce the child before the Board even after the issuance of the directions for production of the child, the Board shall instead of issuing process under section 82 of the Code of Criminal Procedure, 1973 pass orders as appropriate under section 26 of the Act.
That from the perusal reading of Rule 10(4) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, it's apparent that even the Juvenile Justice board would not be the competent court to proceed against the child under Section 82 of the Cr.P.C. Even the board "Shall” proceed under Section 26 of the Act and not under Section 82 of Cr.P.C. In the present matter, neither was the matter committed to the Juvenile Justice Board, nor did the JMIC take into consideration that proceedings against the petitioner under Section 82 of Cr.P.C would be illegal, since the petitioner was a Juvenile.
THERE COULD BE NO PUBLICATION OF A JUVENILE UNDER SECTION 82 CR.P.C IN VIEW OF SECTION 74 OF THE ACT HENCE ANY PROCLAMATION ORDERS AGAINST A JUVENILE WOULD BE ILLEGAL.
Firstly, to declare someone a proclaimed person in terms of section 82 of Cr.P.C, a warrant of arrest against the accused would have to be issued. It would be relevant mention that the police officials can never arrest a child in conflict with the law; hence, a warrant for an arrest would have no effect on the child. The second relevant point to consider would be that for any proceeding to initiated against a juvenile, there would be a mandatory requirement for the proclamation to be published which is clear violation of section 74 of the Act. The procedure for such proclamation would be that such a proclamation shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides. After that, such proclamation should be affixed to some conspicuous part of the house or homestead in which such person ordinarily resided or some conspicuous place of such town or village. A copy thereof shall be affixed to some conspicuous part of the Courthouse. Therefore, it would be relevant to state that as per Section 74 of the Act, which states prohibition on disclosure of the identity of children. Section 74 of the Act, explicitly states that no report in any newspaper, magazine, news-sheet or audiovisual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with the law. Section 74 further discloses that only the Board or Committee as the case may be, holding the inquiry may permit such disclosure if in its opinion, such disclosure is in the best interest of the child. Hence, there can be no publication of the proclamation against the Petitioner requiring him to appear of any specified place. It would further be relevant to mention that as per Section 9(2) of Act, a plea of juvenility can be raised before any court at any stage and such a claim shall be determined in accordance with the provisions contained in the Act.
Therefore, in essence, it can be stated that a Juvenile cannot be declared a proclaimed offender in terms of section 82 Cr.P.C. The provisions of the Juvenile Justice (Care and Protecting of Children) Act, 2015 would apply to a juvenile when he is apprehended and the Act is anti-thesis to the provisions of section 82 Cr.P.C. Hence, keeping in view all the above-mentioned provisions it would be just to state that a Juvenile cannot be declared a Proclaimed offender.