IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.48 of 2008 AJIT KUMAR Versus STATE OF BIHAR & ORS ----------- 5 12.09.2008 In the instant writ application the petitioner initially prayed for a direction to the respondents to shift him from Central Jail, Muzaffarpur, to Remand Home, Muzaffarpur in view of the provisions of Juvenile Justice ( Care and Protection of Children ) Act, 2000. The matter relates to Trial No.12/07, arising out of Goraul P.S. Case No.142/05, corresponding to G.R. No.2058/05 under section 376 of I.P.C. But as during pendency of this application, the petitioner was shifted to Remand Home, he has filed an interlocutory application being I.A. No.1913-08 for an appropriate direction to the respondents to release him from Remand Home as he had already completed maximum period of 3 years in custody. 2. The following issues arise for consideration in this case which are enumerated hereinbelow: 1. Whether an accused who has been declared juvenile, can be kept in prison beyond three years or in Special Home commonly referred as Remand Home? 2. Whether trial of a Juvenile would continue before a regular court under the provision of Cr.P.C. or whether his enquiry would continue in accordance with the Juvenile Justice Act? 2 3. Before I examine the aforesaid issue it would be relevant to notice the fact of the case in brief. The petitioner was remanded to judicial custody on 11.7.2005 in Goraul P.S. Case No.142/02 dated 17.1.06. The Juvenile Justice Board, Muzaffarpur, on 7.4.06 found and declared him to be juvenile being aged between 16 to 17 years on 1.3.06. As such the age of petitioner would be between 15 to 16 years on 10.7.2005, i.e. the date of occurrence. The bail application of petitioner was rejected by Juvenile Justice Board. An application for shifting him from Central Jail, Muzaffarpur to Remand Home was also rejected on 20.4.2006 by Board, as by then he had attained majority. Being aggrieved by the order dated 20.4.2006 rejecting prayer of bail, petitioner preferred Cr.Appeal No. 45/06 which too was rejected by the learned Sessions Judge, Muzaffarpur vide his order dated 10.7.2006. The petitioner filed Cr. Revision No.811 of 2006 before this Court under section 53 of the Act and met the same fate with an observation that the trial be concluded within six months. The subsequent effort of the petitioner to be enlarged on bail as the trail did not conclude within the stipulated period also went in vain. 4. The learned counsel for the petitioner submits that he has already completed more than three years in custody and his continuance in custody beyond aforesaid period is impermissible in law. He further submits that, in fact, a person who has been declared juvenile cannot be kept in jail custody at all. He further submits that the petitioner cannot be tried together with the 3 other accused persons in regular court under the provision of Cr.P.C. He submtits that a juvenile can be tried only by the Juvenile Justice Board as per the provisions of the said Act. 5. After having heard the learned counsel for the parties this Court rakes up first issue as to whether a juvenile can be kept in judicial custody ( Jail) at all. Secondly, whether a juvenile can be kept in remand home, if he has already remained in incarceration for a period exceeding three years. 6. As in course of hearing learned counsel for the State submitted that the petitioner has already been shifted from judicial custody to remand home, Muzaffarpur, this Court takes up the second issue as to whether an accused who has been declared juvenile can be kept in remand home beyond the period of three years. 8. Before I examine the aforesaid issue it would be relevant to notice some of the provisions enshrined in the Act. A “Juvenile” or a “Child” as per section 2(K) of the Act means a person who has not completed eighteenth years of age. As per section 2(L) “Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not attained the age of 18 years. The proviso to section 10 of the Act mandates that since a juvenile in conflict with law is apprehended by police, he shall be placed under the charge of special juvenile police unit or the designed police officer who shall immediately report the matter to a member of the Board. 4 9. Sections 8 and 9 of the Act provides for establishment of observation homes and special homes in every district or a group of districts, as may be required. The provision of section 8 states that the aforesaid homes are meant for reception of a juvenile in conflict with law during the pendency of any inquiry regarding them under this Act. 10. Section 15 of the Act deals with an order that may be passed against a juvenile, if in an inquiry it is established that he has committed offence by competent Juvenile Court. The Juvenile Board may pass any of such orders as provided in sub-sections (2) (3) and (4) of sec 15 of the Act. Sub-sections (3) speaks that in circumstance a juvenile is found to be guilty of offence he/she would be ordered to be sent to a special home. 11. Learned counsel for the State relying upon section 16 of the Act submits, that the section only prohibits a juvenile in conflict with law from being punished to death or life imprisonment only. In other words any other sentence other than once mentioned aforesaid can be inflicted on a juvenile. I am not in agreement with contention of the learned counsel for the State in view of Section 15 of the Act, which specifically mandates that such period of confinement cannot exceed three years. An amendment brought by Parliament vide Act 33 of 2006 substituting the following proviso to Sub- Section 2 of Section 16 of the Act itself clarifies the aforesaid aspect, which is quoted here 5 in below:- Section 16(2):- “Provided that the period of detention So ordered shall not exceed in any case the Maximum period provided under section 15 Of the Act.” It has already been notified in earlier paragraphs that the maximum period of imprisonment provided under section 15 of the Act is three years. 12. It is not in dispute that the petitioner has remained in custody for more than 3 years. 13. In view of the facts and provisions noticed above, this Court is of the view that a juvenile who has completed three years in incarceration cannot be detained in Remand home for any period exceeding the limit imposed by the Statute. His continuance in Remand home would be without due authorisation of law. As such the petitioner is directed to be set at liberty forthwith on an undertaking from him as well as his father that he would appear in the proceeding. In cases where a juvenile has not yet completed maximum of three years of detention in Remand home and if he/she has become a major in the mean while, then in such case he or she should not be kept with other juvenile who has not attained majority. Such Juvenile, who ceases to be so, should be kept at some separate „home‟ specially to be established or allocated for them. One cannot lose sight of the object of the Act that a Remand home or Special home under the Act is a home or 6 abode for a juvenile only and not those who ceases to be a juvenile. 14. The next question is whether an inquiry (trial) of a person who is held to be juvenile is necessarily to be separated from other accused. Section 3 of the Act provides for an inquiry in respect of juvenile who has ceased to be a juvenile. Section 14 of the Act provides as to how an inquiry would be proceeded in case of juvenile. Section 15 of the Act provides for an order to be passed if offence against a juvenile has been established on an inquiry under section 14 of the Act. 15. The Juvenile Justice (Care and Protection of Children) Act,2000 nowhere refers to the word „ trial ‟ for a juvenile. In view of the aforesaid provisions this Court is of the view that a Juvenile, though he may have ceased to be one, he cannot be tried in regular trial under the code of Cr.P.C. with those who were not Juvenile on date of occurrence. 16. In view of aforesaid discussions I direct that the case of the petitioner be separated from other accused persons who were not juvenile on date of occurrence.The petitioner would not face regular trial but instead an inquiry would proceed under the Juvenile Act. The inquiry may not be relevant so far as inflictment of sentence is concerned, as petitioner has already undergone maximum sentence under sections 15 and 16 of the Act. The inquiry may proceed for finding out whether the petitioner has 7 committed the offence in question or not. The petitioner would appear before the Board as and when required. 17. In the result, this application is allowed to extent mentioned above. Anil Kr.Sinha (Samrendra Pratap Singh,J.) A.F.R.