Irshad Kohli vs State of J. and K. and Others

A.M. Mir, J.—This revision petition is directed against an order passed by learned Sessions Judge, Jammu on 30-4-1999. The petitioner-

accused, who claims to be a child, as defined under the Children Act, 1970 (hereinafter referred to as the Act), is standing trial in terms of Section

3/27 of Enemy Agents Ordinance Act read with other provisions. He filed an application before the trial Court for holding an enquiry with respect

to his status as a child and granting him clemency of the Act. That application was rejected by the trial Court vide the impugned order. The only

ground taken for such rejection was that two original certificates one issued by the School and other by the Numberdar concerned, were not

produced before the Court below. This order has been challenged on the ground that the learned Sessions Judge did not take into account the

scheme and object of the Act and enquiry as envisaged by the Act, was not conducted.

Notice in this petition was issued to the State on 24-5-1999. Mr. P. C. Sharma appeared and accepted notice on 9-7-1999. Today when I took

up the matter, nobody appears for the State.

I have heard the learned Counsel for the petitioner. In order to understand the Act, we will have to recognise complexion and appreciate its

scheme and object. Before doing that we will have to trace its origin. The Act owes its origin to the constitutional philosophy of India. Securing of

social justice is one of the aims of the sovereign republic while Article 38 in general terms binds the State to make all efforts to promote welfare of

people to secure the cause of social justice. Parliament and Judiciary both have acknowledged children to be the most precious national wealth.

Therefore, Article 39(e) and (f) in particular, outlines the protection sought to be extended to children. The directive principles of the State Policy

thus aim at providing fullest opportunities and facilities to children to ensure them all round development, to create conditions of freedom and

dignity for them and to protect them against abandonment moral and material. The Act which is purely a social welfare legislation is a product of

this philosophy, and seeks to fulfil the dream of the Constitution translated into expressions in terms of Articles 38 and 39(e) and (f).

The object of the Act, therefore, is to ensure the welfare and protection of those of the criminals who are on the threshhold of the most turbulent

stage of adolescence. This object is revealed by the preamble of the Act, which reads as under :-

An Act to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for

the trial at delinquent children in the State.

Obviously the Act is intended to be used as an umbrella for children accused, in order to explore the possibility of transforming them into good

citizens of the country and segregating them from the world of crime. This object all along seems to have been at work while devising the whole

machinery of the Act. Establishment of Children Welfare Boards, Children Courts, Special Schools and special provisions for dealing with

delinquent children are special features of the Act. Section 8, calls upon a Court, which does not have the powers of a Board or Childrens Court

under the Act to record its opinion with respect to an accused being a child and forward the child and the proceedings to the competent authority.

The Criminal Court has only to form his opinion on the appearance of the accused. It is true that while forming this opinion the Court may hold a

brief enquiry with respect to the actual age of the accused but such enquiry is not expected to be the substitute of a civil proceedings so that things

are asked to be proved and disproved, on the basis of law of evidence. The object of the Act, the expression used in Section 8 and above all the

liberal approach adopted by the legislature in Section 3 in treating a child to be so, even after he ceases to be a child during the trial, are the factors

which must influence the Courts while treating the accused to be a child.

The Apex Court of the country in case titled Munna and Others Vs. State of Uttar Pradesh and Others, , laid emphasis on the background of

the Act and held as under (Para 5) :-

It is, therefore, clear that when a child is arrested for an offence and is not released on bail, he cannot be sent to jail but he must be detained in a

place of safety as defined in Section 2, Sub-section (9) of the Act. The inhibition against sending a child to jail does not depend upon any proof

that he is a child under the age of 16 years but as soon as it appears that a person arrested is apparently under the age of 16 years this inhibition is

attracted. The reason for this inhibition lies in the Court solicitude which the law entertains for juveniles below the age of 16 years. The law is very

much concerned to see that juveniles do not come into contact with hardened criminals and their chances of reformation are not blighted by contact

with criminal offenders. The law throws a cloak of protection around juveniles and seeks to isolate them from criminal offenders, because the

emphasis placed by law is not on incarceration but on reformation. How anxious is the law to protect young children from contamination with

hardened criminals is also apparent from Section 27 of the Act which provides, subject only to a few limited and exceptional cases referred to in

the proviso, that notwithstanding anything contained to the contrary, no Court can sentence a child to death or transportation or imprisonment for

any term or commit him to prison in default of payment of fine. It would thus be seen that even where child is convicted of an offence, he is not to

be sent to a prison but he may be committed to an approved school u/s 29 or either discharged or committed to suitable custody u/s 30. Even

where a child is found to have committed an offence of so serious a nature that the Court is of opinion that no punishment which under the

provisions of the Act it is authorised to inflict is sufficient.

It is in the same backdrop that a Three-Judge Bench of the Apex Court in a. case titled Sheela Barse (II) and Others Vs. Union of India (UOI)

and Others, , termed a child to be national asset. Their Lordships held that the State owes a duty to look after the children community and devise

ways and means to protect and reform them. Although this case related to the custody of the child during the trial, yet it will be highly fruitful to

reproduce a para of this judgment, which reads as under (Para 10) :-

If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality. That is why

all the statutes dealing with children provide that a child shall not be kept in jail. Even apart from this statutory prescriptions it is elementary that: a

jail is hardly a place where a child should be kept. There can be no doubt that incarceration in jail would have the effect of dwarfing the

development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society. It is a matter of regret

that despite statutory provisions and frequent exhortations by social scientists, there are still large number of children in different jails in the country

as is now evident from the reports of the survey made by the District Judges, pursuant to our order dated 15th April, 1986. Even where children

are accused of offences, they must not be kept in jails. It is no answer on the part of a State to say that it has not got enough number of remand

homes or observation homes or other places where children can be kept and that is why they are lodged in jails. It is also no answer on the part of

the State to urge that the ward in the jail where the children are kept is separate from the ward in which the other prisoners are detained. It is the

atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging him from the society and breeding in him a version

bordering on hatred against a system which keeps him in jail. We would therefore like once again to impress upon the State Governments that they

must set up necessary remand homes and observation homes where children accused of an offence can be lodged pending investigation and trial.

On no account should the children be kept in jail and if a State Government has got no sufficient accommodation in its remand homes or

observation homes, the children should be released on bail instead of being subjected to incarceration in jail.

The two judgments above can serve as a tip of the iceberg to vindicate the policy of law and Courts vis-a-vis a child accused.

With this background, the application of the accused could not have been thrown out only because original certificates were not produced

before the trial Court. At best the trial Court should have waited for the original certificates. It is pertinent to mention here that learned Counsel

appearing for the petitioner has produced before me these two certificates in original. I return them back and direct them to be produced before

the-trial Court. The order impugned, in my opinion, has been passed after bypassing the scheme and object of the Act. An enquiry against the

accused applicant in terms of Section 20 of the Act can only be completed after giving him the benefit and clemency of the Act. I find an error of

law and that of jurisdiction having been committed while passing the order. Therefore, I, after admitting this petition to hearing, allow the same,

quash the order impugned and direct the trial Court to pass fresh orders with respect to the status of the applicant and proceed ahead with the

enquiry so far it relates to the petitioner in accordance with law. Be it made clear that it is for the trial Court to determine the status of the petitioner

and the above observations are made for putting the law in its right perspective.

No order as to costs.