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Judgment
The respondent is alleged to be responsible for the murder of Farooq 'Ahmed and was declared as a child under the children Act directed to be
released on bail vide the order impugned in this revision petition. It was further directed that the case against the respondent shall be conducted in
accordance with the provisions the Children Act (hereinafter referred to as the Act.) The father of the deceased has moved this petition for setting
aside the order impugned on the ground that the order completely ignoring the provisions of the Act.
I have heard learned counsel for the parties and perused the record.
From the police report it appears that the respondent and others allegedly murdered the deceased who was a young child of 16 years during the
broad day light and in a congested locality of the city of Jammu. The petition filed by the respondent for bail allegedly presented on 20.4.1991 and
thereafter on 25.4.1991, was disposed of by the court below vide the order impugned in this petition after recording the statement of the mother of
the accused respondent. The prosecution had resisted the application and prayed for the conduct of ossification test for ascertaining the age of the
respondent. The petitioner herein has also placed on record a certificate of the department of radiological, Govt. Medical College, Jammu and
SMGS Hospital, Jammu, holding radiological bonage of the patient is between 18 to 20 years.
The Act was enacted to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent
children and for the separate trial of such children. The Act was necessitated because children were considered to be the most vulnerable group of
the society in need of greatest social care. It was considered by the legislators that on account of their vulnerability and dependence they can be
exploited illtreated and directed into undesirable channels by anti social, elements in the community. With the increased industrializations and
urbanization, the state was bound to be under a duty of according proper care and protection to the children under the provisions of the Act.
Besides our state, many other states had enacted laws for the protection and welfare of the children. The purpose and object of the Act was never
intended to be used by the hardended criminals under the cloak and cover of the Act to usher benefits upon the criminals who were not children
within the meaning of the Act. The enactment had a social purpose and was never intended to be used as on instrument by unscrupulous litigants
and criminals for getting protection or shelter under the Act. A duty is cast upon the courts to be alert to see that the criminals who otherwise are
not entitled to the protection of the Act do not defeat the purpose of the enactment. As the Act confers benefits and protection to the accused
children, the power under the Act has to be exercised with due care and caution and not in a casual manner. The existing realities of life pertaining
to law and order have to be kept in mind, by the courts exercising Powers under the Act. Whereas the protection contemplated by the Act has to
be provided to the genuine children same cannot be allowed to be misused by clever criminal litigants. A study of the rise of crime in the country
would reveal that the youth is more prone to and allured by the crime either under the forced circumstances or as a measure of pleasure. The
powers under the Act should be exercised strictly in accordance with the procedure prescribed and not otherwise.
'Child' has been defined to mean a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. Sec. 18 of
the Act mandate the court to release an accused child on bail with or without surety and casts a duty upon it to ensure that if there appear
reasonable grounds for believing that the release was likely to bring the child into association with any reputed criminal or expose him to moral
danger or that his release would defeat the ends of justice, not to release him on bail. In that event every child therefore, is not entitled to be
released on bail and the court has to be satisfied about the nonexistence of the dangers indicated in the section. Before exercising the powers of
releasing a child on bail, the procedure prescribed under Sec. 32 of the Act, has to be followed and the circumstances as enumerated in Sec. 33 of
the Act to be taken note of.
Section 32 of the Act provides: ""Presumption and determination for age:
(1) Where it appears to a competent authority that a person before it under any of the provisions of this Act (Otherwise than for the purpose of
giving evidence) is a child, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence
as may be necessary and shall record a finding whether the person is a child or not stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom
the order has been made is not a child and the age recorded by the competent authority to be tie age of the person so brought before it shall, for
the purposes of this Act, be deemed to be the true age of that person.
Section 33 provides:
Circumstances to be taken into consideration in making orders under the Act. In making any order in respect of a child under this Act, a
competent authority shall take into consideration the following circumstances namely:
(a) The age of the child;
(b) The circumstances in which the child is living;
(c) The reports mile by the progation officer;
(d) The religious persuation of the child;
(e) Such other circumstances as may be, in the opinion of the competent authority require to be taken into consideration in the interests of the child;
Provided that in the case of delinquent child, the above circumstances shall be taken into consideration after the children's court has recorded a
finding against the child that he has committed the offence; Provided further that if no report of the probation officer is received within ten weeks of
his being informed under section 19, it shall be open to the children's court to proceed without it."" Section 32 of the Act envisages an enquiry as to
the age of the accused by affording the parties concerned to lead evidence as may be necessary and to record a finding whether the person is a
child or not. The holding of an inquiry contemplated by the section cannot be expected to be unilateral without associating the other side
particularly when the averments of fact regarding the age are challenged. Even after holding the accused a child, the court must be satisfied before
releasing the childaccused on bail that his release was not likely to bring him into association with any reputed criminal or expose him to moral
danger or would defeat the ends of justice.
In the instant case the court below has not followed any procedure as prescribed by the Act and has passed the order impugned in a most
casual and routine manner. The record reveals that the presiding officer of the Court has not even cared the to maintain the order sheet of the file.
The statement of the mother of the accused, the affidavit of his father and school certificate, has been made the basis for passing the order. It is not
disputed that father of the respondent has not been subjected to crossexamination and his affidavit attested by a Notary was not admissible under
law, as the Notary concerned has not properly stamped the same. The Notary also appears to have not even entered the affidavit in her registry,
as is the requirement under the Notaries Act. The schoolleaving certificate has not been proved by any evidence and, in fact, is a Photostat copy of
some alleged certificate. The findings of the court below are therefore, clearly vocative of the provisions of sections 18 and 32 of the Act.
Under the circumstances the order impugned is set aside with a direction that the respondent shall be taken into custody and the court below,
afar holding proper enquiry under the Act, shall pass afresh appropriate orders. The bail bonds furnished by the respondent shall be deemed
cancelled.