Bombay High Court
Kailas Sambhaji Lohakre vs The State Of Maharashtra And ... on 8 September, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5093 OF 2016
Kailas Sambhaji Lohakre,
Age 22 years, Occu. Student,
R/o. Kanjala, Tq. Loha,
District Nanded. PETITIONER
VERSUS
1. The State of Maharashtra,
Through Principal Secretary,
Home Department,
Mantralaya, Mumbai-32.
2. The Superintendent of Police,
Nanded, Tq. & District Nanded
3. The Union of India,
Through its Ministry of Defence,
New Delhi.
4. Coe
Dir Rtg
Sena Bharti Karyalaya,
Army Recruiting Office
T-39, Assey Lines, Aurangabad
Maharashtra Pin 431002 RESPONDENTS
...
Mr.S.G.Jadhavar, Advocate for the petitioner
Mr.A.V.Deshmukh, AGP for respondent nos.1 & 2
Mr.D.G.Nagode, ASGI for respondent Nos.3 & 4
...
CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 11.08.2016
Pronounced on : 08.09.2016
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JUDGMENT: (Per Sangitrao S. Patil, J.):
Heard. Rule. Rule made returnable
forthwith and heard finally with the consent
of the parties.
2. A short but important question that
is involved in this Writ Petition is whether
the order passed by the Juvenile Justice
Board holding a juvenile in conflict with law
guilty of the offences punishable under
Sections 324, 323, 504, 506 read with Section
34 of the Indian Penal Code would be a
disqualification for him to join the services
in Army.
3. The petitioner completed his Diploma
in Mechanical Engineering with distinction on
9th June, 2015. Respondent no.4 initiated
District-wise open ground recruitment process
for his Department on 27th July, 2015. The
petitioner appeared before respondent no.4
and participated in the recruitment process.
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His medical examination was conducted.
Thereafter, the petitioner appeared for
written examination on 29th November, 2015.
Respondent no.4 published a list of
successful candidates, wherein the name of
the petitioner was included. All the
successful candidates were called upon to
produce the original documents for
verification. Accordingly, the petitioner
submitted all the original documents for
verification. Respondent no.2 Superintendent
of Police, Nanded, issued a certificate on 6th
January, 2016 and mentioned therein that
Crime No.59/2010 for the offences punishable
under Sections 324, 323, 504, 506 r/w. 34 of
the Indian Penal Code was registered against
the petitioner in Police Station Usmannagar
and that he was released by the Juvenile
Justice Board on 15th January, 2011, under
Section 15 (1) (a) of the Juvenile Justice
(Care and Protection of Children) Act, 2000,
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('the Act of 2000' for short). On receiving
the said certificate, respondent no.4, vide
letter dated 31st March, 2016, informed the
petitioner that since he was convicted for an
offence under the law, could not be enrolled
in the Army. Accordingly, the candidature of
the petitioner came to be cancelled.
4. The learned counsel for the
petitioner submits that the main object of
the Act of 2000 is to provide proper care,
protection and treatment to the juveniles in
conflict with law and to rehabilitate them.
He submits that as per sub-section (1),
Section 19 of the Act of 2000, a juvenile who
has committed an offence and has been dealt
with under the provisions of this Act, would
not suffer disqualification, if any, attached
to a conviction of an offence under such law,
notwithstanding anything contained in any
other law. He submits that the petitioner was
dealt with by the Principal Magistrate of
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Juvenile Justice Board, Nanded in RCC No.
84/2010 for the offences punishable under
Sections 324, 323, 504, 506 r/w. 34 of the
IPC and as per the judgment and order dated
15th January, 2011, after holding the
petitioner guilty for the said offences, on
accepting plea of being guilty made by the
petitioner, allowed the petitioner to go home
with an advice not to involve in any other
offence in future, vide clause (a), sub-
section (1), of Section 15 of the Act of
2000. In view of sub-section (1), of Section
19, passing of such order against the
petitioner would not be a disqualification
for enrolment of the petitioner in Army. He
submits that the impugned letter dated 31st
March, 2016, issued by respondent no.4,
therefore, may be set aside and the
petitioner may be directed to be enrolled in
Army.
5. The learned counsel for the
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petitioner further submits that as per sub-
section (2), Section 19 of the Act of 2000,
the Juvenile Justice Board has to make an
order directing that the relevant records of
the conviction of the juvenile in conflict
with law shall be removed after the expiry of
the period of appeal or a reasonable period
as prescribed under the Rules. He submits
that respondent no.2 wrongly retained the
record of conviction of the petitioner even
after the expiry of the period of appeal. He,
therefore, sought a direction against
respondent no.2 to remove the relevant
records of Crime No.59/2010 in respect of the
petitioner.
6. No formal reply has been filed by
respondent nos.1 to 3. Respondent no.4 filed
affidavit-in-reply and resisted the petition.
According to him, all actions of Army
Recruiting Authorities are governed by the
"Directives on Recruitment of Junior
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Commissioned Officers and Other Ranks, 2014.
The candidature of the petitioner came to be
rejected as per the provisions of para 33 (d)
Page 86 Part IX Section II of the said
Directives since he was convicted by the
Principal Magistrate, Juvenile Justice Board,
Nanded, vide order dated 15th January, 2011.
As per the recruitment policy in vogue, any
candidate who has ever been convicted for an
offence under the Indian Penal Code, cannot
be enrolled in the Army. Accordingly,
respondent no.4 communicated to the
petitioner, vide letter dated 31st March,
2016, that since he was convicted for an
offence under the law, cannot be enrolled
into the Army. It is stated that the Juvenile
Justice Board is equally the court of law,
the petitioner has pleaded guilty before the
said Board for the above mentioned offences
and accordingly, he has been convicted as per
the judgment and order dated 15th January,
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2011, passed in RCC No.84/2010. Consequently,
his candidature has been rightly rejected by
respondent no.4.
7. On the basis of the averments made
in the affidavit-in-reply, the learned
counsel for respondent no.4 submits that
since the petitioner is a previous convict,
he was not entitled to be enrolled into the
Army. He, therefore, supports the decision
of respondent no.4 to reject the candidature
of the petitioner for being enrolled into the
Army and prays that the Writ Petition may be
dismissed.
8. The petitioner was prosecuted for
the offences punishable under Sections 324,
323, 504, 506 r.w. 34 of the Indian Penal
Code alleged to have been committed by him
and his companions on 22nd July, 2010. The
learned Principal Magistrate, Juvenile
Justice Board, Nanded, framed the charges
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against him for the said offences, vide
Exhibit 10 on 15th January, 2011 and
explained the contents thereof to him in
vernacular. The petitioner pleaded guilty for
the said charges. The learned Principal Judge
accepted his plea of being guilty and passed
the following order:
ORDER
1- The Juvenile Offender in
conflict with law namely Kailas
Sambhaji Lohakare is held guilty for
committing the offence punishable
u/ss.324, 323, 504, 506 r.w. 34 of
Indian Penal Code and he is allowed
to go home as per Sec. 15 (a) of
Juvenile Justice (Care and
Protection of Children) Act, 2000 on
advice not to involve in any other
offence in future.
2- Muddepal property if produced,
be returned to the concern Police
Station to produce in a trial
against major offender.
9. The Juvenile Justice (Care &
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Protection of Children) Act, 2015, ('the Act
of 2015' for short) came into force on 1st
January, 2016. Since the offences alleged
against the petitioner were committed on
22.07.2010 and he has been dealt with by the
Juvenile Justice Board on 15th January, 2011,
he would be governed by the Act of 2002,
which was in force at the relevant time.
Even under the Act of 2015, there is an
analogous provision in Section 24 pertaining
removal of disqualification attached to
conviction of an offence of "a juvenile in
conflict with law", who is referred to as "a
child in conflict with law" as per the Act of
2015.
10. As mentioned in the statement of
objects and reasons of the Act of 2000, one
of the objects is to rehabilitate the
juvenile/child in conflict with law. The
provisions of sub-section (1) of Section 19
would provide the juvenile in conflict with
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law found guilty of an offence an opportunity
to amend and regulate his delinquency.
Removal of disqualification attached to a
conviction of a juvenile in conflict with law
would have the effect of opening the doors
for him of a descent and disciplined
civilized life. The order holding him guilty
of an offence would not disqualify him from
getting any job to which otherwise he would
be legitimately entitled.
11. Sub-section (1) of Section 19 of the
Act of 2000 starts with a non obstante clause
i.e. "notwithstanding anything in any other
law". In the directive no.33 (d) it is
mentioned that the candidate must submit an
affidavit giving his personal details
including the fact that he has not been ever
convicted for any offence under law. The said
clause cannot be used for disqualifying the
petitioner for his enrolment in the Army on
the ground that he was held guilty by the
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Juvenile Justice Board. Such disqualification
has been specifically removed by the
provisions of sub-section (1) of Section 19
of the Act of 2000 and the non obstante
clause used therein would override directive
no.33 (d) issued by respondent nos. 3 and 4.
Respondent no.4, therefore, was not justified
in cancelling the candidature of the
petitioner for his enrolment in the Army on
the ground that he was held guilty by the
Juvenile Justice Board, Nanded. The letter
dated 31st March, 2016, issued by respondent
no.4 cancelling candidature of the
petitioner, in the above circumstances, is
liable to be quashed and set aside.
Respondent no.4 will have to be directed to
reconsider the candidature of the petitioner
for enrolment into the Army on his own merits
without being influenced by his conviction by
the Juvenile Justice Board.
12. So far as 2nd prayer of the
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petitioner seeking directions against
respondent no.2 Superintendent of Police for
removal of the relevant records of his
conviction is concerned, it would be
worthwhile to reproduce here the provisions
of sub-section (2) of Section 19 of the Act
of 2000 which read as under:
19. Removal of disqualification
attaching to conviction. -
(1) .....
(2) The Board shall make an order
directing that the relevant records
of such conviction shall be removed
after the expiry of the period of
appeal or a reasonable period as
prescribed under the rules, as the
case may be.
As seen from the above provision, it is for
the Juvenile Justice Board to make an order
directing that the relevant records of the
conviction of the juvenile in conflict with
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law should be removed after expiry of the
period of appeal. In the present case,
besides the petitioner there are other
accused persons involved in the offences
alleged to have been committed on 22nd July,
2010. It is not known whether the trial
against the co-accused of the petitioner has
been conducted or not. The original record
produced before the Juvenile Justice Board
would be required to be produced before the
Regular Criminal Court for conducting the
trial against his co-accused. Therefore, it
is necessary for the learned Principal
Magistrate, Juvenile Justice Board, Nanded,
to consider the question of removal of the
concerned record of conviction of the
petitioner and pass necessary orders keeping
in mind the provisions of sub-section (2) of
Section 19 of the Act of 2000.
13. In view of the above facts and
circumstances, the Writ Petition will have to
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be allowed partly. In the result, we pass
the following order:
ORDER
i) The impugned letter dated 31st March,
2016, addressed by respondent no.4
to the petitioner, cancelling the
candidature of the petitioner for
getting enrolled into the Army, is
quashed and set aside.
ii) Respondent no.4 is directed to
consider the candidature of the
petitioner for his enrolment into
the Army on its own merits and
should not reject it merely on the
ground that the petitioner was held
guilty of certain offences by the
Juvenile Justice Board.
iii) The respondents shall take decision
as expeditiously as possible and
within 6 weeks from today and in
case the petitioner is found
eligible for the post of Mechanical
Soldier shall appoint him to the
said post without further delay.
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iv) The Principal Magistrate, Juvenile
Justice Board, Nanded shall pass
necessary orders under sub-section
(2), Section 19 of the Juvenile
Justice (Care and Protection of
Children) Act, 2000 in respect of
the records holding the petitioner
guilty of the offences alleged
against him.
v) Rule is made absolute partly
accordingly.
vi) The Writ Petition is disposed of in
the above terms.
vii) The parties shall bear their own
costs.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
