Page No.# 1/15
GAHC010137552023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(Crl.)/24/2023
TOKO RUNEL
S/O LATE TOKO PEKHI, R/O NIRJULI BAGE TINIALI, NEAR VKV SCHOOL,
NIRJULI, DIST- PAPUM PARE, ARUNACHAL PRADESH-791109
VERSUS
THE CHIEF SECRETARY TO THE GOVT OF ASSAM AND 7 ORS
HOME AND POLITICS DEPARTMENT, ASSAM SECRETARIAT, DISPUR-
781006, GUWAHATI
2:THE COMMISSIONER AND SECRTETARY TO THE GOVERNMENT OF
ASSAM
THE LGAL REMEMBRANCER DEPARTMENT
ASSAM SECRETARIAT
DISPUR-781006
GUWAHATI
3:THE SUPERINTENDENT OF POLICE
LAKHIMPUR
NORTH LAKHIMPUR
ASSAM-787001
4:THE SUPERINTENDENTOF POLICE
PAPUM PARE
ARUNACHAL PRADESH-791113
5:THE SUPERINTENDENT OF POLICE
CAPITAL COMPLEX
ITANAGAR-791110
ARUNACHAL PRADESH
6:THE REGISTRAR OF BIRTH AND DEATH
Page No.# 2/15
ITANAGAR MUNICIPAL CORPORATION
NAHARLAGUN-79111
ARUNACHAL PRADESH
7:DIRECTOR OF ECONOMICS AND STATISTICS
YUPIA. PAPUM PARE-791110
ARUNACHAL PRADESH
8:BIKI TAKIO
FATHER OF CICL X
R/O VILL- NIYA COLONY
NIRJULI
P.S.-NIRJULI
DIST-PAPUM PARE
ARUNACHAL PRADESH-79110
Advocate for the Petitioner : MS. S G BARUAH
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT & ORDER
Date : 28-06-2024
1. Heard Ms. S.G. Baruah learned counsel for the petitioner.
Also heard Mr. D Nath learned senior Govt. Advocate appearing for
respondent Nos.1 to 3, Mr. NNB Choudhury learned Additional
Advocate General, Arunachal Pradesh, Mr. A Chandran learned counsel
appearing for respondent Nos.4 to 7 and Mr. D.K. Medhi learned
counsel for respondent No.8.
2. This writ petition arises out of Sessions case
No.50(NL)/2023, pending in the court of learned Addl. District and
Sessions Judge (FTC), Lakhimpur, North Lakhimpur.
3. THE CHALLENGE:
Page No.# 3/15
The basic challenge in this writ petition is made against the order
dated 10.01.2022, passed by the Additional Chief Judicial Magistrate,
Lakhimpur, North Lakhimpur in GR Case No.4465/2021 and also
against the order dated 11.05.2023 passed by the Principal
Magistrate, Juvenile Justice Board, Lakhimpur, North Lakhimpur,
whereby the learned Court dismissed the petition being the petition
No.301/2022 filed by the respondent No.8. The challenge is also
made to the manner and procedure adopted while determining the
juvenility of the alleged Child in Conflict with Law (hereinafter referred
to as CICL), allegedly involved in commission of crime in connection
with Laluk PS Case No.400/2021 under section 302/34 IPC. The CICL
is the son of respondent No.8 in this writ petition.
4. The factual matrix leading to the passing of the orders
impugned are recorded herein below:-
I. The dead bodies of two minor sons of the petitioner were
found with multiple head and bodily injuries in Dikrong river No.2
Parbotipur village, Assam in the district of North Lakhimpur on
30.11.2021. Accordingly the petitioner lodged an FIR on 30.11.2021
registered as Laluk PS Case No.400/2021 under sections 302/34 IPC.
II. During the course of investigation the investigating officer
arrested three persons including the CICL.
III. On 23.12.2021 a bail application was preferred before the
learned Addl. CJM, North Lakhimpur claiming that the accused (son of
the respondent No.8) was minor on the date of alleged offence. In
support of such contention photocopy of birth certificate, Aadhar Card
and SLC certificate of the CICL were annexed. Though the birth
Page No.# 4/15
certificate was in original, but the Magistrate doubted the genuineness
of the birth certificate as the same did not contain any QR code or bar
code and therefore, directed an enquiry to find out the genuineness of
the birth certificate. A notice was issued to the District Register of
Birth and Death, Itanagar, Naharlagun to depute a staff of his office to
appear before the Magistrate on the next date fixed.
IV. Subsequently on 10.01.2022, the Revenue Officer of the
Office of the Municipal Corporation Itanagar, appeared before the
court and produced one original birth registrar and also produced a
communication addressed to the court by the Statistical Officer of the
Itanagar Municipal Corporation. After perusal of the aforesaid
documents, the learned Magistrate opined that birth certificates are
not doubtful and also concluded that the accused son of the
respondent No.8 had not attained the age of 18 years and accordingly
directed the IO of the case to produce CICL before the JJB,
Lakhimpur, North Lakhimpur.
V. In terms of the aforesaid order, on 11.01.2022, the records
were produced before the learned JJB and the learned JJB declined to
grant zimma of the CICL to the parent and directed the IO for
investigation and to submit the report along with medical report and
fixed the next date on 21.01.2022. The JJB recorded that the age of
CICL is 17 years 7 months 8 days on the basis of the order of the
learned Additional Chief Judicial Magistrate.
VI. Subsequently, by an order dated 17.01.2022 the custody of
the CICL was handed over to the respondent No.8.
VII. It is important to note that on 25.05.2022 petition No.950 was
Page No.# 5/15
filed by the father of the deceased/informant before the Chief Judicial
Magistrate, Lakhimpur, North Lakhimpur in GR Case No.4465/2021,
through the Asstt. PP, Lakhimpur claiming that the two CICL are
actually not juvenile and the documents/birth certificates on the basis
of which, they claimed to be juvenile are fake and manufactured
documents. A further prayer was made to the effect that a fresh
enquiry is required to be made in this regard.
VIII. The learned Addl. CJM under its order dated 25.05.2022
directed the IO to look into the matter and submit a report by
06.06.2022 but the IO sought for further five days time to complete
his investigation and submit report.
IX. Accordingly on 12.06.2022 a report was submitted by the IO
along with certain documents and on the basis of materials collected,
the IO opined that the documents and the materials collected support
that the declared CICL are not juvenile/child.
X. On the basis of such report the learned Magistrate
concluded that there appears some grounds for warranting a fresh
enquiry and determination of the age of CICL, however, declined to do
the same on the ground that since the court has already, after
conducting an enquiry, declared the accused as CICL, the petition filed
by the informant is not maintainable. Accordingly, the petition was
dismissed. The learned Additional Chief Judicial Magistrate however,
forwarded the petition filed by the informant to the Principal Judge,
JJB for further action.
XI. Thereafter, on 14.06.2022, the record was once again put up
before the Principal Magistrate, JJB Lakhimpur in view of the order
Page No.# 6/15
passed by the learned CJM, Lakhimpur.
XII. By order dated 14.06.2022 the learned Principal Magistrate,
JJB issued notice to the custodian of the CICL to produce the original
age certificate and also the CICL before the court on 07.07.2022.
XIII. On 20.10.2022, a petition No.301 was once again filed by the
informant, amongst others seeking a declaration that the CICL be
declared as adults. A written objection was filed on behalf of the CICL.
XIV. On 23.02.2023, after hearing both the parties, the JJB
Lakhimpur passed an order directing the CICL to produce the birth
certificates and other relevant documents on the basis of which he
claims to be Juvenile. Thereafter by the impugned order dated
11.05.2023, the Principal Magistrate declined to proceed with the
enquiry on the following grounds:
I. Prior to enquiry by the JJB, the court of Addl. CJM, by its
order dated 10.01.2022 held that no discrepancies is found with
regard to age of CICL.
II. The JJB on 11.01.2022 declared the CICL to be juvenile
holding that there is nothing to doubt the birth certificate produced on
behalf of the CICL.
III. Such decisions not being challenged before the appellate
court, the board cannot review its own order.
IV. Accordingly it was declared that both the CICL’s are juvenile.
5. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL
FOR THE PETITOINER
i. The two decisions i.e., passed by the learned Addl. CJM
dated 10.01.2022 and the orders of the JJB dated 11.05.2023 passed
Page No.# 7/15
by the court of learned Principal Magistrate, JJB Lakhimpur are under
challenge in this case being violative of the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2015 and the Rules
framed thereunder, more particularly, in violation of sections 14, 15,
18, 20 of the Act.
ii. It is also contended that the entire procedure adopted by
the JJB and the learned Addl. CJM, are in complete derogation of the
Rule 10(1)/11 and accordingly it is submitted by the learned counsel
for the petitioner that when there are prima facie materials to suggest
that declaration of juvenility was obtained by fraud, the JJB is not
powerless to direct a fresh enquiry. Accordingly learned counsel for
the petitioner submits that this is a fit case wherein this court may like
to direct for a fresh enquiry in terms of the provisions of the JJ Act,
2015.
6. The learned counsel for the respondent No.8 has not argued
anything on merit rather submits that they have instructions from the
client that they will not object for a fresh enquiry.
7. The Itanagar Municipal Board represented by Mr. A
Chandran learned counsel had filed an affidavit and also raised a
doubt as regards the genuineness of the birth certificates on the basis
of which the two CICL claim to be juvenile.
8. The State of Arunachal Pradesh represented by Mr. NNB
Choudhury, learned additional Advocate General, state of Arunachal
Pradesh also contends that this is a fit case where a fresh enquiry
should be directed.
9. This court has given anxious considerations to the
Page No.# 8/15
arguments advanced by the learned counsel for the parties and also
perused the materials available on record.
10. One of the prime objectives of enacting juvenile justice Act
is to stop juveniles from becoming hardened criminals. The primary
goal of juvenile justice system is to maintain public safety, skill
development, rehabilitation, addressing treatment needs and
successful reintegration of youth into the community.
11. Section 4 of the Act 2015 mandates for constitution of
Juvenile Justice Boards for exercising the powers and discharging its
functions relating to the children in conflict with law (CICL). Under the
Act, there is mandate for constitution of atleast one Juvenile Justice
Board for every district.
12. Chapter IV of the Act deals with procedure in relation to
children in conflict with law. Section 10, under chapter X prescribes
that a child alleged to be in conflict with law, when is apprehended by
police such child is to be placed under the special juvenile police unit
or the designated child welfare police officer. The said police or police
officer is mandated to produce the child before the Board without any
loss of time within a upper limit of 24 hours of apprehension.
13. Section 12 of the Act mandates that a person, who is
apparently a child and is in conflict with law and produced before the
Board, such person need to be released on bail with or without surety,
if there appears reasonable ground for believing that release is not
likely to bring that person into association with any known criminal
etc.
14. Section 14 of the Act 2015, deals with the enquiry by
Page No.# 9/15
Board regarding the child in conflict with law. In terms of sub section
(1) of section 14, the CICL, when produced before the Board, board is
to held an enquiry in accordance with the provision of the Act and is
to pass an order in terms of section 17/18 of the Act. When after the
enquiry, the Board is satisfied that a child irrespective of age has
committed a petty offence or a serious offence, then the Board is to
pass an order in terms of the clauses enumerated under subsection 1
of section 18. However, when the nature of offence is heinous and the
child has completed the age of 16 years, the board is to conduct a
further preliminary assessment with regard to the mental and physical
capacity of the child to commit such offence, ability to understand the
consequences of the offence and circumstances in which he allegedly
committed the offence and thereafter is to pass an order in terms of
subsection 3 of section 18. Subsection (3) of section 18 empowers
the board to transfer the trial of the children to a court having
jurisdiction to try such offence, when after its assessment, it had
concluded that there is a need for trial of the child as an adult.
Section 23 of the Act further mandates that no joint proceedings of
child in conflict with law and a person not being a child shall not be
jointly proceeded.
15. Now coming to the case in hand, the detail facts recorded
herein above, clearly establish that the two child who are alleged to
be in conflict with law were arrested on 07.12.2021 And were
produced before the learned Additional Chief Judicial Magistrate on
23.12.2021, on which date a bail application was filed. Though certain
documents including birth certificate, Aadhar card etc of the child was
Page No.# 10/15
produced, however for the reason of same being Xerox copies of the
original, the learned Additional Chief Judicial Magistrate did not
consider the juvenility of the child nor sent them to the Board.
16. In the considered opinion of this court such course of
action is in disregard of the provision of section 10 and section 12 of
the Act. There is no doubt that the parents of the child had claimed
the child to be juvenile and that being the position, the child ought to
have been directed to be produced before the Board. However, the
learned Magistrate started enquiry on its own. Thus the order dated
10.01.2022 passed by the learned Additional Chief Judicial Magistrate,
clearly demonstrates violation of the provisions of section 14 of the
Act, 2015. An additional Chief Judicial Magistrate may be a member of
the Juvenile Justice Board, however, he is not empowered under
section 14 to make an enquiry and declare the child produced before
it to be juvenile. The law mandates that such assessment that the
child is in conflict with law is to be made by the Board under section
14 of the Act and not by a Magistrate exercising power under section
437 or 439 Cr.P.C.
17. The learned Additional Chief Judicial Magistrate, had itself
determined that the child alleged to be in conflict with law was above
16 years. That being the position, the procedure mandated under
section 15 ought to have been followed by the Board inasmuch as,
the allegation is brutal murder of two children. Thus, it seems that
the learned additional Chief Judicial Magistrate, who passed the order
dated 10.01.2022 is not even aware of the provision of section 15 of
the Juvenile Justice Act, 2015 and thus, the said Additional Chief
Page No.# 11/15
Judicial Magistrate while passing the orders dated 10.01.2022 had not
only exceeded its jurisdiction but also committed a glaring illegality.
18. The learned Additional Chief Judicial Magistrate under its
order dated 25.05.2022 proceeded to enquire as regards the juvenility
of the two accused whereas, such enquiry even if permissible ought to
have been done by the juvenile justice board and not by the learned
Additional Chief Judicial Magistrate in his capacity as a Magistrate and
not as a Chairman of the Juvenile Justice Board.
19. Therefore, in the considered opinion of this court the
learned Additional Chief Judicial Magistrate assumed jurisdiction
without having none and therefore such order are not sustainable in
the eye of law being without jurisdiction and violative of section 14/15
of the Act.
20. Another aspect of the matter is that, when the Additional
Chief Judicial Magistrate doubted the genuineness of the claim of the
juvenile, referred the matter to the JJB. Unfortunately the JJB,
Lakhimpur by the impugned order dated 11.05.2023 declined to
proceed with a fresh enquiry.
21. The order dated 23.02.2023 passed by learned Principal
Magistrate, Juvenile Justice Board, Lakhimpur resulted in detention of
a person under police custody, who claimed to be juvenile and was
finally held to be CICL. Not only that, in the meantime, a child alleged
to be in conflict with law was under police custody who claimed to be
juvenile and was finally held to be CICL. Not only that, no
determination was even made as mandated under section 15 even
after concluding that the child was above 17 years.
Page No.# 12/15
22. The JJB committed a serious error of law accepting the
determination made by the Additional Chief Judicial Magistrate as
regard juvenility of the accused in total ignorance of the proposition of
law that it is the JJB who is empowered to make an enquiry under
section 14 of the Act and not the Additional Chief Judicial Magistrate,
before whom the alleged child in conflict with law was produced after
arrest.
23. In terms of section 10 of the JJ Act, such determination
made by the Additional Chief Judicial Magistrate, at the time of
consideration of bail, cannot be treated as an enquiry made under
section 14 of the act as discussed hereinabove.
24. Now coming to the order of 10.01.2022 whereby the
Additional Chief Judicial Magistrate declared the son of the respondent
No.8 as CICL, this court is of the opinion that proper procedure is not
followed.
25. Further, when the JJB itself had held that the children were
above 17 years, it ought to have proceeded under section 15 of the
Act inasmuch as it is not only a valuable right of the child in conflict
with law but also of the prosecution. Yet another aspect of the matter
is that the order dated 11.01.2022 was passed only on the basis of
the determination made by the Additional Chief Judicial Magistrate in
its order dated 10.01.2022. Therefore, the determination made is not
as per procedure mandated under section 14 read with rule 47 and 18
of the rules framed under Juvenile Justice Act. Therefore in view of
the aforesaid fact and procedural impropriety, the orders holding the
child alleged to be in conflict with law to be juvenile are not
Page No.# 13/15
maintainable under law.
26. Now coming to the review of the order of juvenility, this
court is of the view that there may not be any expressed provision of
review. However, in the case in hand and as held hereinabove, the
determination of juvenility by the Additional Chief Judicial Magistrate
is void ab initio being without jurisdiction. The determination made
by the Board is also based on such an order. Thus there was no bar
to exercise power under Section 14 of the Act, 2015, inasmuch as the
child was produced before the Board only after the order of the
Additional CJM.
27. It is true that a person aggrieved by an order made by the
committee or the board is an appealable order except for the decision
made by the committee relating to foster care and sponsorship
aftercare, however, section 102 of the Act, 2015 gives a revisional
power to the High Court and the High Court is empowered to examine
the legality and propriety of any such order. In the considered
opinion, the High Court can exercise such power to consider the
correctness, legality or propriety of any finding, inter say an order and
as to the regularity of the proceeding of the committee or the Board
as the case may be. However, in such exercise of power, the High
Court should not dwell upon the facts and evidence of the case.
28. From the discussions made hereinabove, it is clear that the
learned Courts/Board while exercising their power has committed
glaring procedural impropriety and therefore, the orders passed by it
had not only resulted in failure of justice but also resulted in illegality
and therefore, in the considered opinion of this Court, this is a fit case
Page No.# 14/15
to exercise this Court’s power under section 102 of the J.J. Act, 2015.
29. This court cannot also be oblivious of the fact that the
noble object for which the Juvenile Justice Act was enacted cannot be
allowed to be defeated inasmuch as the victim or the family of the
victim/deceased including the prosecution is having a right to have
exact determination of age of alleged CICL, more particularly, when
the age is determined to be above 16 years and alleged offence is
heinous in nature to get justice and therefore, the Juvenile Justice
Board ought not to have lightly taken the allegations raised by the
informant.
30. In view of the aforesaid, this court is of unhesitant view
that the impugned orders dated 10.01.2022 and 11.05.2023 are not
sustainable in law. Accordingly, the same stands set aside. The
Juvenile Justice Board, North Lakhimpur shall proceed afresh under
section 14 of the Act to determine the juvenility of the two accused
alleged to be child in conflict with law and thereafter pass order under
section 17 and 18 of the act as the case may be. While doing so, if
necessity arises the Board shall also do the needful in terms of section
15 of the Act. The entire proceeding be completed within a period of
3 months from the date of receipt of a certified copy of this judgment
and order.
31. It is stated at the bar that in the meantime charge sheet
was filed wherein the two CICL were sent for trial and presently trial is
being conducted by the learned Sessions judge. Therefore, it is
provided that till completion of the aforesaid exercise, the proceeding
of Sessions Case No.50(NL)/2023 pending in the court of the learned
Page No.# 15/15
Additional District and Sessions Judge (FTC), Lakhimpur, North
Lakhimpur shall remain suspended and the trial shall proceed on the
basis of the determination of the Juvenile Justice Board.
32. In terms of the determination made hereinabove, the writ
petition stands allowed.
JUDGE
Comparing Assistant