The Single Bench of the Jammu & Kashmir High Court in the case of Hazik Mushtaq vs UT of J&K & Ors. consisting of Justice Sanjay Dhar held that a Juvenile Justice Board, in the matter of holding enquiry regarding a child in conflict with law, has all the trappings of a Criminal Court.
Facts
The petitioner challenged the decision of respondents No.2 and 3 to withhold his clearance report and sought direction for them to start the verification process for the re-issuance of his travel document/passport. The petitioner also requested that respondent No.4 process his application for the re-issuance of his passport/travel document.
The petitioner alleged that he had been falsely accused in a criminal case for offences under 447, 354, 323, 382, 201 of IPC and claimed to have been a juvenile at the time of the alleged incident. The petitioner was a minor when the alleged incident took place, so an investigation was carried out u/s 14 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act of 2015”). The petitioner had been accepted into a medical college in Dhaka, Bangladesh and applied to renew his passport, which had expired. However, despite applying several months ago, the passport had not been issued.
Contentions Made
Petitioner: It was contended that he had requested to be released and for the case to be closed before the Juvenile Justice Board (“Board”), but their request was denied by the Board on September 30, 2022. The petitioner then filed a petition challenging this decision u/s 482 of the Code of Criminal Procedure (“CrPC”), and the court issued an interim order on 23.02.2023, halting the proceedings before the Board. It was also contended that u/s 3 of the Act of 2015, the respondents should not have held back his travel document. It was claimed that the ongoing inquiry before the Board could not be considered as criminal proceedings, so there was no reason for the respondents to withhold the travel document.
Respondent: The counsel for respondent No.4 argued that the petitioner should not be issued a travel document because u/s 6(2)(f) of the Passport Act, the Passport Authority has the power to refuse issuance if the applicant has proceedings pending before a Criminal Court in India.
Observations by the Court
The Bench determined that the only question was whether the proceedings against the petitioner before the Board would be considered as pending before the Criminal Court. If the answer was yes, then clause (f) of Section 6(2) of the Passport Act would be applicable, justifying the respondent's refusal to issue a travel document to the petitioner.
After analysing Section 4 and clauses (d) and (e) of Section 14(5) of the Act of 2015, it concluded that the Board had the same powers as a Judicial Magistrate First Class. When conducting an inquiry for a child in conflict with the law, the procedure to be followed depends on the seriousness of the offense. For serious offenses, the procedure for trial of summons cases is used, and for minor offenses, the procedure for summary proceedings under CrPC is used. The Board responsible for the inquiry is chaired by a Judicial Magistrate of First Class and applies the relevant provisions of the CrPC. Therefore, CrPC applies to the summary cases before the Board, which is presided over by a Judicial Magistrate of First Class. As a result, the Board functions similarly to a Criminal Court when conducting inquiries into children in conflict with the law.
It further opined that Section 6 of CrPC defines the types of Criminal Courts. It states that any court created under a different law can also be considered a Criminal Court if it has similar characteristics. Therefore, a Juvenile Justice Board, which follows the rules of CrPC, could be classified as a Criminal Court under the Act of 2015. So, the proceedings against the petitioner pending before the said Board in respect of offences u/s 447, 354, 323, 382, 201 of IPC would certainly attract the provisions u/s 6(2)(f) of the Passport Act.
It also opined that even though the proceedings before the Board had been temporarily stopped, it did not mean that there were no proceedings pending against him. Only when the court quashes the proceedings could it be said that they were no longer pending. Therefore, the decision to withhold the petitioner's passport was justified based on the Passport Act.
Judgment
As per a Memorandum issued by the Government of India, Ministry of External Affairs, PSP Division, referencing a notification from 1993, the petitioner could be granted a passport or travel document despite the provisions of the Passport Act. However, the petitioner must obtain appropriate orders from the Board in Srinagar where the case was pending. The Bench allowed the petitioner to approach the Board to request the issuance of a passport or travel document. The Board was to consider the application independently, regardless of the ongoing proceedings in the court.
Case: Hazik Mushtaq vs UT of J&K & Ors.
Citation: WP(C) No.687/2023 and CM No.1621/2023, on 19th July 2023
Bench: Justice Sanjay Dhar
For Petitioner: Mr. R. A. Jan, Sr. Advocate, With Mr. Aswad Attar, Advocate.
For Respondents: Ms. Rekha Wangnoo, GA, vice Mr. Ilyas Nazir Laway, GA-for R1 to R3 & R5 Mr. T. M. Shamsi, DSGI-for R4.
Read Judgment @LatestLaws.com:
Picture Source :