Bombay High Court
Jaiprakash Suru Shetty vs The State Of Maharashtra And Ors on 17 April, 2017
Bench: A.S. Oka
1 crwp-2372.15
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2372 OF 2015
Jaiprakash Suru Shetty
adu,t Indian Inhabitant, Age - 66 yrs
residing at Shyam Kamal, A-302,
East Wing, Tejpal Road, Vile Parle (E)
Mumbai 400 057 ... Petitioner
Versus
1. State of Maharashtra
Vile Parle Police Station, Mumbai
2. Investigating Officer,
Vile Parle Police Station, Mumbai.
3. Senior Police Inspector,
Vile Parle Police Station, Mumbai ... Respondents
Mr. M.G. Shukla for the Petitioner.
Mr. S.K. Shinde, Public Prosecutor and Mr. K.V. Saste, APP for the
Respondent No.1.
CORAM : A.S. OKA &
ANUJA PRABHUDESSAI, JJ.
DATE ON WHICH SUBMISSIONS WERE HEARD : 2nd MARCH, 2017
DATE ON WHICH JUDGMENT IS PRONOUNCED : 17th APRIL, 2017
JUDGMENT (PER A.S. OKA, J.):-
1 By this Petition under Article 226 of the Constitution of
India and Section 482 of the Code of Criminal Procedure, 1973, the
prayer is for quashing the First Information Report registered against
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the petitioner for the offences punishable under Sections 370 and 374
of the Indian Penal Code, Sections 3 and 14 of the Child Labour
(Prohibition and Regulation) Act, 1986 and Sections 23 and 26 of the
Juvenile Justice (Care and Protection of Children) Act, 2000. There are
consequential prayers including a prayer for challenging the circular
dated 24th April, 2015 issued by the learned Chief Metropolitan
Magistrate, Mumbai. We must note here that during the pendency of
this Petition, the petitioner appeared before the Juvenile Justice Board,
Dongri, Mumbai and pleaded guilty. By order dated 5 th December, 2016
passed by the Juvenile Justice Board, the petitioner was held guilty of
the offences punishable under Sections 23 and 26 of the Juvenile
Justice (Care and Protection of Children) Act, 2000 (for short "the said
Act of 2000") and Section 374 of the Indian Penal Code. The said order
dated 5th December, 2016 has attained finality as the petitioner has not
challenged the same. Therefore, now it is not necessary to consider the
prayer for quashing the FIR. However, the prayer for quashing the
circular dated 24th April, 2015 will have to be considered on merits.
2 Therefore, the submissions which are canvassed across the
Bar by the learned counsel appearing for the petitioner and the learned
Public Prosecutor are confined to the legality and validity of circular
dated 24th April, 2015. The said circular reads thus :-
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"No. CMM/21/2015
Office of the Chief
Metropolitan Magistrate,
Mumbai
Date :- 24-04-2015
CIRCULAR
Subject :- Cognizance of crime committed
under section 23 to 28 of the
Juvenile Justice Care and Protection
of Children Act, 2000
Apropos of the above, it is observed that remand
applications/ chargesheets in respect of crimes
committed under section 23 to 28 of the Juvenile
Justice (Care and Protection of Children) Act, 2000 are
presented before the courts of Metropolitan Magistrates,
Mumbai as per jurisdiction.
Attention of all the judicial officers is invited to
Rule 10 of the Juvenile Justice (Care and Protection of
Children) Rules 2007. As per Rule 10(b), it is provided
that,
The Board shall perform the following functions
to achieve the objectives of the Act, namely :-
(b) take cognizance of crimes committed under sections
23 to 28 of the Act.
The Presiding Officers of Juvenile Justice Board
(City and Suburbs) are directed to accept the remand
applications and chargesheets in respect of crimes
committed under sections 23 to 28 of the Juvenile
Justice (Care and Protection of Children) Act, 2000 and
dispose of the same according to law."
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3 The submission is that the circular is illegal inasmuch as
under Sub-Section (1) of Section 6 of the said Act of 2000, the
jurisdiction conferred on the Juvenile Justice Board (for short "the
Board") is confined to dealing with the proceedings under the said Act
of 2000 relating to juveniles in conflict with law. It is pointed out that
admittedly, the petitioner was not a juvenile in conflict with law on the
date on which the alleged offence was committed. Therefore, the
submission is that the impugned circular issued by the learned Chief
Metropolitan Magistrate is illegal as the Board is not conferred with the
power to deal with the proceedings relating to the persons who are not
juveniles in conflict with law. The learned Public Prosecutor supported
the circular by relying upon clause (b) of Rule 10 of the Juvenile Justice
(Care and Protection of Children) Rules, 2007 (for short "the said
Rules") framed by the Central Government. His submission is that in
view of clause (b) of Rule 10 of the said Rules, jurisdiction is conferred
on the Board to take cognizance of the officences punishable under
Sections 23 to 28 of the said Act of 2000 and therefore, there is nothing
wrong with the said circular.
4 We have given careful consideration to the submissions. We
may note here that the impugned circular is confined to the offences
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punishable under Sections 23 to 28 of the said Act of 2000 and,
therefore, we are not dealing with the cases where the offences alleged
against a person who is not juvenile in conflict with law are under
Sections 23 to 28 of the said Act of 2000 as well as under the Indian
Penal Code or any other penal statute. We are confining our
adjudication to the offences under Sections 23 to 26 and 28 of the said
Act of 2000. Sections 23 to 28 of the said Act of 2000 read thus :-
"23. Punishment for cruelty to juvenile or child.-
Whoever, having the actual charge of or control over, a
juvenile or the child, assaults, abandons, exposes or
willfully neglects the juvenile or causes or procures him
to be assaulted, abandoned, exposed or neglected in a
manner likely to cause such juvenile or the child
unnecessary mental or physical suffering shall be
punishable with imprisonment for a term which may
extent to six months, or fine, or with both.
24. Employment of juvenile or child for begging.-
1. Whoever, employs or uses any juvenile or the child for
the purpose or causes any juvenile to beg shall be
punishable with imprisonment for a term which may
extend to three years and shall also be liable to fine.
2. Whoever, having the actual charge of, or control over, a
juvenile or the child abets the commission of the
offence punishable under sub-section (1), shall be
punishable with imprisonment for a term which may
extend to one year and shall also be liable to fine.
25. Penalty for giving intoxicating liquor or narcotic drug
or psychotropic substance to juvenile or child.-
Whoever give, or causes to be given, to any juvenile or
the child any intoxicating liquor in a public place or any
narcotic drug or psychotropic substance except upon
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the order of duly qualified medical practitioner or in
case of sickness shall be punishable with imprisonment
for a term which may extend to three years and shall
also be liable to fine.
26. Exploitation of juvenile or child employee.-
Whoever ostensibly procures a juvenile or the child for
the purpose of any hazardous employment keeps him in
bondage and with-holds his earnings or uses such
earning for his own purposes shall be punishable with
imprisonment for a term which may extend to three
years and shall also be liable to fine.
27. Special offences.-
The offences punishable under section 23, 24, 25 and
26 shall be cognizable.
28. Alternative punishment.-
Where an act or omission constitute an offence
punishable under this Act and also under any other
Central or State Act, then, notwithstanding anything
contained in any law for the time being in force, the
offender found guilty of such offences shall be liable to
punishment only under such Act as provides for
punishment which is greater in degree."
5 Thus, the offences punishable under Sections 23 to 26 are
the offences committed against a juvenile or a child by any person
including an adult (who was not a juvenile in conflict with law on the
date of the commission of alleged offence). Thus, the offences
punishable under the said provisions are the offences relating to a
juvenile or a child.
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6 The petitioner has heavily relied upon Section 6 of the said
Act which reads thus :-
"6. Powers of Juvenile Justice Board.-
1. Where a Board has been constituted for any district,
such Board shall, notwithstanding anything contained
in any other law for the time being in force but save as
otherwise expressly provided in this Act, have power to
deal exclusively with all proceedings under this Act
relating to juvenile in conflict with law.
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 proceedings comes before them in
appeal, revision or otherwise."
7 The provisions of the Rules framed under Sub-Section (1)
of Section 68 of the said Act of 2000 will have to be considered. The
Central Government has framed the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (for short "the said Rules"). Rules
10 and 18 read thus :-
"10. Functions of the Board. ― The Board shall perform the
following functions to achieve the objectives of the Act,
namely:-
(a) adjudicate and dispose cases of juveniles in
conflict with law;
(b) take cognizance of crimes committed under
section 23 to 28 of the Act;
(c) monitoring institutions for juveniles in conflict
with law and seeking compliance from them in
cases of any noticeable lapses and improvement
based on suggestions of the Board;
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(d) deal with non-compliance on the part of
concerned government functionaries or
functionaries of voluntary organizations, as the
case may be, in accordance with due process of
law;
(e) pass necessary direction to the district authority
and police to create or provide necessary
infrastructure or facilities so that minimum
standards of justice and treatment are maintained
in the spirit of the Act;
(f) maintain liaison with the Committee in respect of
cases needing care and protection;
(g) liaison with Boards in other districts to facilitate
speedy inquiry and disposal of cases through due
process of law;
(h) take suitable action for dealing with unforeseen
situations that may arise in the implementation of
the Act and remove such difficulties in the best
interest of the juvenile;
(i) send quarterly information about juveniles in
conflict with law produced before them, to the
District, State Child Protection Unit, the State
Government and also to the Chief Judicial
Magistrate or Chief Metropolitan Magistrate for
review under sub-section (2) of section 14 of the
Act;
(j) any other function assigned by the State
Government from time to time relating with
juveniles in conflict with law.
18. Procedure to be followed in respect of sections 21, 22,
23, 24, 25 and 26 of the Act. ―
(1) In the event of violation of provisions laid down
under section 21 of the Act,-
(a) the Board shall take cognizance of such violation by
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print or electronic media and shall initiate necessary
inquiry and pass appropriate orders as per provisions
contained in sub-section (2) of section 21 of the Act;
and
(b) where the National or the State Commission for
Protection of Child Rights takes suo motu cognizance
of violation under section 21 of the Act, it shall inform
the District or the State Child Protection Unit of the
concerned district and the State directing them to
initiate necessary action through the Board.
(2) In the event of an escape of a juvenile in conflict with
law or a child, the following action shall be taken
within twenty-four hours,-
(a) the Officer-in-Charge of any institution shall
immediately send a report to the area Police Station or
Special Juvenile Police Unit along with the details and
description of the juvenile or child, with identification
marks and a photograph, with a copy to the Board,
District Child Protection Unit and other authorities
concerned;
(b) the Officer-in-charge of institutions other than
shelter homes or drop-in-centres shall send the guards
or concerned staff in search of the juvenile, at places
like railway stations, bus stands and other places where
the juvenile is likely to go;
(c) the parents or guardians shall be informed
immediately about such escape; and
(d) the Officer-in-charge of an institution other than a
shelter home or drop-in-centre shall hold an inquiry
about such escape and send his report to the Board or
Committee and the authorities concerned and the
report shall be placed before the Management
Committee set up under rule 55 of these rules in the
next meeting for review.
(3) The offences against a juvenile in conflict with law or a
child specified in sections 23, 24, 25 and 26 shall be
either bailable or non-bailable besides being cognizable
under the provisions of the Code of Criminal
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Procedure, 1973 (2 of 1974) and the procedures shall
apply on the Police, the Board and the concerned
authorities and functionaries accordingly."
8 The preamble to the said Rules clearly records that the said
Rules have been framed to provide for better implementation and
administration of the provisions of the said Act of 2000 in its true spirit
and substance. Rule 10 deals with functions of the Board and Rule 18
deals with procedure to be followed in respect of Sections 21 to 26 of
the said Act of 2000. We may note here that Section 21 of the said Act is
also a penal provision which prohibits publication of name, address or
other particulars of juveniles in conflict with law. Sub-Section (2) of
Section 21 provides for penalty in terms of money for contravention of
Sub-Section (1).
9 We have perused the Maharashtra Juvenile Justice (Care
and Protection of Children) Rules, 2002. We may note here that the said
Rules do not deal with the functions of the Board and procedure to be
followed in respect of the offences punishable under Sections 23 to 26.
Therefore, in view of the proviso to Sub-Section (1) of Section 68 of the
said Act of 2000, the said Rules framed by the Central Government will
continue to operate in the State of Maharashtra on the aforesaid
aspects. Rule 10 gives list of functions to be performed by the Board to
achieve objectives of the said Act of 2000. Clause (b) provides that one
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of the functions of the Board is of taking cognizance of the crimes
committed under Sections 23 to 28 of the said Act of 2000. As stated
earlier, the offences punishable under Sections 23 to 26 and 28 can be
committed by persons who are not juveniles in conflict with law or
children. The offenders can be adults on the date of commission of the
alleged offences. Thus, clause (b) of Rule 10 confers power on the
Board to take cognizance of the offences punishable under said
Sections. Sub-Rule (3) of Rule 18 provides that the offences under
Sections 23 to 26 shall be either bailable and non-bailable besides being
cognizable as per the provisions of the Code of Criminal Procedure,
1973. What is important is the last portion of Sub-Rule (3) which
provides that the procedures shall apply to the Police, Board and the
concerned Authorities and functionaries accordingly. Clause (b) of Rule
10 confers a power on the Board to take cognizance of the offences
punishable under Sections 21 to 26 of the said Act of 2000. Sub-Rule
(3) of Rule 18 also indicates that the said offences will be tried before
the Board as there is no reference to regular criminal Court under Sub-
Rule (3).
10 Now, we come back to Sub-Section (1) of Section 6. Sub-
Section (1) suggests that the Board shall have an exclusive jurisdiction
to deal with all proceedings under the said Act of 2000 relating to
juvenile in conflict with law.
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11 Under Sub-Section (1) of Section 68, Rule making power is
conferred on the Central Government as well as on the State
Government to make Rules to carry out purposes of the said Act of
2000. Clause (b) of Rule 10 of the said Rules, as stated earlier, confers
power on the Board to take cognizance of the crimes committed under
Sections 23 to 26 and 28 of the said Act of 2000. There is nothing either
under the said Act of 2000 or under the said Rules which confers a
power on the Board of transferring the cases of adult offenders under
Sections 23 to 26 and 28 to regular criminal Courts under the Code of
Criminal Procedure, 1973 after taking cognizance of the offences.
Therefore, after taking cognizance, the offences will have to be tried by
the Board. If any other interpretation is made, it will render clause (b)
of Rule 10 otiose or redundant.
12 We may note here that there is no challenge to the validity
of clause (b) of Rule 10 of the said Rules and therefore, we are
proceeding on the footing that the same is valid. If the same is valid, no
other meaning except the meaning which we have given as above can
be ascribed to clause (b) of Rule 10.
13 In the circumstances, we find nothing illegal about the
circular issued by the learned Chief Metropolitan Magistrate, Mumbai.
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14 Accordingly, the Petition is disposed of.
( ANUJA PRABHUDESSAI, J ) (A.S. OKA, J )
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