IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.501 of 2009 Quam Mansoori, S/o-Jattar Mansoori of Village-Purandaha Idgah Tola, P.S.-Simraha, District-Araria. -Petitioner. Versus 1. The State of Bihar through Secretary-cum-Commissioner, Home Department, Old Secretariat, Patna. 2. The Secretary, Legal Department, State of Bihar, Old Secretariat, Patna. -Respondents. ----------- For the Petitioner : Mr. N.K. Agarwal, Sr. Adv. Mr. Vijay Anand For the State : Mr. SC-6. ------------ 03 05.10.2009 The petitioner in this writ petition has complained that though he has been found to be juvenile in conflict with law, he still languishes in jail, as there is no Juvenile Justice Board in Araria under Purnea Sessions Division and as such the matter is not being dealt with in accordance with law. This is an extremely sad reflection on the state of affairs. A juvenile in conflict with law is being permitted to be detained in jail custody much against the letter and spirit of law in this regards, as would appear from the facts of this case. A complaint was lodged being Complaint Petition No.1910 of 2002 before the Chief Judicial Magistrate, Araria by one Shana Khatoon, wherein she alleged that about 3 days back the petitioner is said to have raped her. It is upon this compliant that ultimately petitioner was arrested on 19th December, 2008 and remanded to judicial custody. Petitioner immediately filed an application stating that at the time when the offence is said to have been committed by him, he was a - 2 - child. He had not committed the offence. The learned Chief Judicial Magistrate on this plea being taken ordered for constitution of a Medical Board for examining the age of the petitioner. The petitioner’s age was assessed by the Medical Board and report submitted to the Court. It found that on the date of examination of the petitioner which is 23rd of March, 2009, petitioner was about 19 years of age. Thus, the learned Chief Judicial Magistrate found that on the alleged date of occurrence he would be not above 13 years of age and at that age he is alleged to have committed rape on a grown up lady. Realizing that petitioner was thus clearly a juvenile in conflict with law, he referred the matter to the Juvenile Justice Board but forgot that petitioner was languishing in jail. Regrettably, there is no Juvenile Justice Board yet constituted and functional for Araria. The result is though there is a clear finding that petitioner is a juvenile in conflict with law, he continues to languish in jail with criminals for over 10 months defeating the very object of the Juvenile Justice (Care and Protection of Children) Act, 2000 exposing such young persons who is hardly 19 years of age in jail custody to hardened criminals which will leave a permanent bad impression on the said youngsters and that too prima facie for an offence which could not have been committed by him. Though, the provision of Sections 7 and 7A of the Act providing for procedure to be followed by Magistrate, who is not empowered to deal with such cases and the procedure to be followed when claim of juvenility is raised before any Court other than Juvenile Justice Board were followed, what the Court forgot was the proviso to Section 10(1) of the Act, which is quoted hereunder:- 10. Apprehension of - 3 - juvenile in conflict with law-(1) As soon as a juvenile in conflict with law is apprehended by police, he shall be placed under the charge of the special juvenile police unit or the designated police officer, who shall produce the juvenile before the Board without any loss of time but within a period of twenty-four hours of his apprehension excluding the time necessary for the journey, from the place where the juvenile was apprehended, to the Board: Provided that in no case, a juvenile in conflict with law shall be placed in a police lockup or lodged in a jail.……….” The proviso, in my view, amply makes it clear that the legislative intent is not to let a juvenile in conflict with law to be placed in jail for reasons which are obvious but did not appear to the learned Chief Judicial Magistrate. Under the aforesaid circumstances, regrettably, the petitioner has remained in judicial custody without authority of law and in contravention of law. There was total lack of sensitivity on the part of the Court in dealing with the matter. The Court acted in most mechanical manner virtually without application of mind, which was required of it in such a case while dealing with juvenile in conflict with law. That being the position, I have no alternative but to direct that the petitioner be forthwith released from judicial custody on an undertaking to be given by his father to the Court below that he would produce him before the Juvenile Justice Board as and when constituted and as and when required. It is made clear that in case the petitioner is not so produced when required to be produced, the Board may report the - 4 - matter to the Chief Judicial Magistrate, who would take such remedial action as may be permissible in law. With the aforesaid observations and directions, the writ petition is allowed. Let a copy of this order be communicated to the learned Chief Judicial Magistrate, Araria by FAX at the cost of the petitioner. Trivedi/ (Navaniti Prasad Singh, J.)