Madhya Pradesh High Court
Kamlesh Kumar Shah vs The State Of Madhya Pradesh on 19 January, 2022
Author: Vivek Agarwal
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Case No. Criminal Revision No.963/2021
Parties Name Kamlesh Kumar Shah
versus
State of Madhya Pradesh
Date of order 19.1.2022
Bench Constituted Justice Vivek Agarwal
Order passed by Justice Vivek Agarwal
Whether approved for No
reporting
Name of counsel for For Revision Petitioner:
parties Shri Arvind Kumar Pathak,
Advocate.
For Respondent: Smt.Swati
Aseem George, Panel Lawyer.
Law laid down -
Significant paragraph -
numbers
ORDER
19.1.2022
This revision petition has been filed by revision
petitioner Kamlesh Kumar Shah S/o. Ramsajivan Shah under
Section 102 of the Juvenile Justice (Care & Protection of
Children) Act, 2015 (for short "J.J.Act of 2015") being
aggrieved of order dated 8.3.2021 passed by the learned
Sessions Judge, Singrauli, Head Quarter at Waidhan in
Criminal Appeal No.129/2015 arising out of order dated
24.4.2015 passed by the learned Principal Magistrate,
Juvenile Justice Board, Singrauli, Head Quarter at Waidhan
in Criminal Case No.74/2011 whereby the learned First
Appellate Court has partly allowed the appeal under Section
102 of the J.J.Act of 2015 and affirmed the order of the
Juvenile Justice Board.
2. Revision petitioner's contention is that vide order
dated 24.4.2015 passed in Criminal Case No.74/2011, the
learned Juvenile Justice Board, Singrauli had directed to
keep the revision petitioner in a Special Home in terms of
the provisions as contained in Section 15(1)(g) of the
Juvenile Justice (Care and Protection of Children) Act, 2000
(for brevity "J.J.Act of 2000"). Revision petitioner was
charged of committing an offence of rape under Section 376
of the Indian Penal Code, 1860 (for short "I.P.C") with the
prosecutrix from one year prior to 27.7.2005. Prosecutrix
had become pregnant when report was lodged against the
present revision petitioner. Dr.Smt.Pushpa Soni (PW.8), who
was working at Community Health Centre Waidhan, District
Singrauli, on the post of Medical Officer, in her examination
found the prosecutrix to be pregnant carrying fetus of about
3 months. Her date of birth on the basis of X-ray report was
shown to be between 16-17 years. Date of birth of the
present revision petitioner is 23.5.1989.
3. Being aggrieved of order dated 24.4.2015 passed by
the learned Juvenile Justice Board, appeal was filed in which
vide judgment dated 8.3.2021, learned First Appellate Court,
after taking into consideration that at the time of decision of
the appeal, the revision petitioner had completed 30 years of
age, observed that it will not be proper to relegate him to a
place of safety while upholding the findings of the learned
Juvenile Justice Board in regard to commission of offence of
rape by the present revision petitioner under Section 376 of
the I.P.C and taking into consideration the provisions as
contained in Section 18(1)(g) of the J.J.Act of 2015 directed
the revision petitioner to offer community/correctional
service at Government District Hospital Waidhan, District
Singrauli.
4. The present revision petition has been filed by the
revision petitioner wherein it is wrongly mentioned that the
revision petitioner is in jail while infact the revision
petitioner's prayer is to set aside the impugned order dated
8.3.2021 and to release him from the bond of community
service for a period of three years.
5. Learned counsel for the revision petitioner submits
that the condition of doing community service be waived as
the revision petitioner is 30 years of age and he has no other
source of livelihood.
6. After hearing learned counsel for the parties, it will be
relevant to point out that usually Criminal Justice System in
India consists of three parts; Police, Court & Prisons. All of
them strive for rehabilitation & reformation of wrong doers.
In recent times, alternative forms of non-custodial
punishment is being adopted by many Countries, which
include verbal sanctions, conditional discharge, status
penalties, house arrest, probation, suspension or deferred
sentence as have been provided by the United Nations
Standard Minimum Rules For Non-Custodial Measures
(Tokyo Rules) adopted by General Assembly Resolution
45/40 of 14th December, 1990. One of such alternative is
community service order. The rules are intended to promote
greater community involvement in the management of
criminal justice, especially in the treatment of offenders as
well as to promote among offenders a sense of responsibility
towards Society.
7. Infact, Section 15(1)(g) of the J.J.Act of 2000 provides
for making an order directing the Juvenile to be sent to a
Special Home for a period of three years. There is a proviso
that the Juvenile Justice Board, if it is satisfied that having
regard to the nature of the offence and the circumstances of
the case, it is expedient so to do, for reasons to be recorded,
reduce the period of stay to such period as it thinks fit.
Section 15(1)(c) of the J.J.Act of 2000 provides for ordering
the Juvenile to perform community service.
8. When viewed in this statutory backdrop, it is evident
that community service is a type of non-custodial
reformative alternative, which involves the doing of an
unpaid work by the offender for a reasonable period of time
by serving the community with the consent of the offender.
The community service is correctional in nature and is
commitment on the part of the offender to return something
to the Society and to find solace in the process. It benefits
both the Offender & Community.
9. A number of western countries have adopted
community service as an alternative reform and there are
many studies as well, which deem that such reformative
punishments have helped in rehabilitation of offender(s)
faster than that of imprisonment. United Nations have also
considered community service as an alternative to custodial
reforms.
10. Malimath Committee & National Judicial Academy
(for brevity "N.J.A") in their report on Reforms in Criminal
Justice Delivery System have suggested introduction to
community service as an alternative. It emphasized that
community service can be granted where duration of
imprisonment is less than three years and also minimum &
maximum number of hours should be specified. Section 15
of the J.J.Act of 2000 provides community service as one of
the forms of punishment if the juvenile is found to have
committed the offence.
11. Thus, community service as a mode of restorative
justice has been accepted in India after it has been
successfully adopted in western countries especially in
United Kingdom & United States of America. Unlike
retributive justice where the focus is on the crime and
violation of law, restorative justice aims at resolving the
problem through reconciliation & improvement of the newly
created situation. The needs of the victim are respected and
the offender takes responsibility, which shows that he
understands the consequences of his crime. Though
restorative justice is a new dimension of the Criminal Legal
System but it is based on four basic principles, namely, (1)
establish balance disrupted by a crime or conflict in
community & society and restoring the damage made; (2)
make restitution to the victim; (3) create conditions for the
offender to understand & take responsibility for his acts and
(4) assistance in changing & promoting future behaviour of
the offender.
12. Thus, community service being a mode of restorative
justice & purpose is to seek repair to harms caused by
criminal behaviour and the purpose is to involve to the
extent possible, those who have a stake in an offence and to
collectively identify & address harms, needs and obligations
in order to heal & put things right as possible.
13. When the request of revision petitioner to reduce the
period of community service is viewed in the light of the
intention of the Tokyo rules, it does not appear to be in
synchronization with the aim & object of community
service. It is an effective alternative to incarceration and
being a restorative & correctional method, has its own
advantages for which the learned First Appellate Court was
best suited to adjudge the requirement of community service
and prescribe the period, which is to be spent on such
community service.
14. There is no infirmity or illegality or irregularity in the
impugned order dated 8.3.2021 passed by the learned
Sessions Judge, Singrauli, Head Quarter at Waidhan in
Criminal Appeal No.129/2015 arising out of order dated
24.4.2015 passed by the learned Principal Magistrate,
Juvenile Justice Board, Singrauli, Head Quarter at Waidhan
in Criminal Case No.74/2011 calling for exercise of
revisional jurisdiction in this case.
15. Accordingly, this revision petition fails & is dismissed.
(Vivek Agarwal)
Judge
amit
Digitally signed by
AMIT JAIN
Date: 2022.01.24
16:55:14 +05'30'
