IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12553 of 2010 SIDDHARTH SINGH S/O DR. UTPAL KANT SINGH R/O 8B, RAJENDRA NAGAR, P.S. KADAM KUAN, DISTT.- PATNA. PETITIONER. Versus 1. ELECTION COMMISSION OF INDIA, NIRVACHAN SADAN, ASHOK ROAD, NEW DELHI- 110001, THROUGH THE ELECTION COMMISSIONER. 2. THE CHIEF ELECTORAL OFFICER, ELECTION COMMISSION OF INDIA, MANGLES ROAD, BIHAR, PATNA. 3. UNION OF INDIA THROUGH THE CABINET SECRETARY, NEW DELHI. 4. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR, PATNA. 5. THE PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVT. OF BIHAR, PATNA. RESPONDENTS. ----------- For the petitioner : Mr. Y.V.Giri, Senior Advocate. Mr. Raju Giri, Advocate. For the respondents : Mr. J.P.Karn, Senior Advocate Mr. Prasoon Kumar, Advocate (G.A.-3) -------- O R D E R 04/ 06.10.2010 This writ petition has been filed by the petitioner for a direction to the respondents-authorities to give effect to the provision of Section 19(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as „the Juvenile Justice Act‟, for the sake of brevity) and to issue instructions/guidelines/circulars to the Chief Electoral Officer as well as to the Returning Officers and other authorities responsible for the conduct of elections that the juveniles are not disqualified from contesting the elections held for State Assemblies or Parliament in terms of Section 8 of the Representation of the People Act, 1951 (hereinafter referred to as „the R.P.Act‟ for the sake of brevity) as the said provision is not applicable to the juveniles and for other ancillary - 2 - reliefs. 2. It is apparent from the record that in the year 1998 when the petitioner was 17 ½ years old, he was made an accused in Kadamkuan P.S.Case No.574 of 1998 for offences punishable under Sections 302, 120B and 34 of the Indian Penal Code as well as Section 27 of the Arms Act and subsequently vide judgment dated 11.07.2001 passed in Sessions Trial No. 1003 of 1999, the Sessions Court, Patna convicted him for offences punishable under Sections 302, 120B and 34 of the Indian Penal Code. The said judgment was upheld by the Supreme Court vide its order dated 30.09.2005 passed in Criminal Appeal No.688 of 2003. 3. Learned counsel for the petitioner stated that under the provision of Section 9 of the R.P. Act, a juvenile who has committed an offence shall not suffer any disqualification as is attached to a conviction for any offence. He has further submitted that the Juvenile Justice (Care and Protection of Children) Rules, 2007 also provide that no stigma should be attached to a juvenile in such cases. He further argued that according to Section 64 of the Juvenile Justice Act such juvenile cannot be deemed to be a convict as his past record is erased and his disqualification removed. 4. Learned counsel for the petitioner also claimed that inspite of the aforesaid specific provisions of law it is quite often found that the election authorities are passing varied orders, sometimes rejecting the nominations of candidates due to some criminal case/conviction against them although offences were - 3 - committed when the candidates were juvenile. Hence, he submits that it was essential for the Commission to issue instructions/ guidelines/circulars to the election authorities in that regard, but till date no such instructions/guidelines/circulars has been issued as is apparent from the report of the Commission. 5. Learned counsel for the petitioner relies upon Article 324 of the Constitution of the India under which the powers of superintendence/direction/control of election has been vested in the Election Commission and even the Apex Court in case of Laxshmi Charan Sen & ors V. A.K.M. Hassan Uzzaman & Ors, A.I.R.1985 S.C. 1233, has held that the Commission can issue such directions to the Chief Electoral Officer and the said directions are binding upon the Chief Electoral Officer. Hence, he submits that it is incumbent upon the Commission to issue instructions/guidelines/circulars for the said purpose to avoid confusion, especially when Article 329 of the Constitution of India bars any writ after rejection of nomination on any ground, including the aforesaid ground and any person whose nomination is rejected merely due to his implication/conviction in a criminal case while he was a juvenile, he will have to wait for the result of the election to challenge the said order of rejection of his nomination by way of election petition. 6. On the other hand, learned counsel for the respondents nos.1 and 2 stated that there was no occasion for issuance of any such instructions/guidelines/circulars to the Chief Electoral Officer or the - 4 - authorities specifically prescribed in the Act and the provisions of law in that regard are also well settled and clear according to which the Chief Electoral Officer or other election authorities have to perform their duties with regard to acceptance or rejection of the nominations. He further submitted that as per the provisions of Section 35 and 36 of the R.P.Act such objection can be raised by the candidates which has to be decided by the Returning Officer which is the person authorized to decide the said objection after giving specific reasons. It was also averred by learned counsel for respondent nos.1 and 2 that no power has been given to the Commission under the law to issue such directions before hand when even the nomination papers are not filed. It is also argued that after filing of the nomination paper if the nomination of any candidate is rejected, the law gives him an opportunity to challenge the decision of the returning officer in an election petition, hence there is no occasion for the Commission to issue any such instructions/guidelines/circulars as required. 7. From the arguments raised by learned counsel for the parties and from the facts and circumstances of this case as well as from the provisions of law discussed above, it is quite apparent that Section 19(1) of the Juvenile Justice Act specifically provided that notwithstanding anything contained in any other law a juvenile who has committed an offence and has been dealt with under the provision of the said Act shall not suffer disqualification, if any, attaching to a conviction of offence under such law. This view finds support also - 5 - from the above mentioned order of the Hon‟ble Apex Court in case of Laxshmi Charan Sen & others (supra). 8. Furthermore, the Rules prescribed under the Juvenile Justice Act also provide that no stigma can be attached to any juvenile who has been convicted. Furthermore, Section 64 of the Juvenile Justice Act provides as follows: “64. Juvenile in conflict with law undergoing sentence at commencement of this Act- In any area in which this Act is brought into force, the State Government shall direct that juvenile in conflict with law who is undergoing any sentence of a imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under sub-section (2) of Section 16 of the Act. Provided that the State Government, or as the case may be the Board, may, for any adequate and special reason to be recorded in writing, review the case of a juvenile in conflict with law undergoing a sentence of imprisonment, who has ceased to be so on or before the commencement of this Act, and pass appropriate order in the interest of such juvenile. Explanation.- In all cases where a juvenile in conflict with law is undergoing a sentence of imprisonment at any stage on the date of commencement of this Act, his case including the issue of juvenility, shall be deemed to be decided in terms of clause (l) of section 2 and other provisions contained in this Act and the rules made thereunder, irrespective of the fact that he ceases to be a juvenile on or before such date and accordingly he shall be sent to the special home or a fit institution, as the case may be, for the remainder of the period of the sentence but such sentence shall not in any case exceed the maximum period provided in section 15 of this Act.” 9. In the said circumstances, the law is quite apparent that a juvenile who has committed an offence and has been convicted cannot be disqualified for the said purposes. Furthermore, the Chief - 6 - Electoral Officer or the Returning Officer is a creature of statute and derives power under the R.P.Act to decide the nominations of candidates in accordance with law which includes the Juvenile Justice Act. Hence, there is no occasion for the Election Commission to issue instructions/guidelines/circulars as the law is quite clear in this regard and the said authorities have to decide the matter in accordance with law. Furthermore, the candidates whose nomination has been rejected illegally by the said authority, have been given an opportunity under the R.P.Act to challenge the same by way of filing an election petition. 7. In the aforesaid facts and circumstances, this court does not find any merit in this writ petition which is, accordingly, dismissed. Sunil (S. N. Hussain, J.)