THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.16633 of 2009 ORAL ORDER: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard Sri Sanjay Kishtareddy Peta, learned counsel appearing for the petitioner, learned Assistant Government Pleader for Home appearing for the respondents and Sri V.Raghunath, appointed by this Court as Amicus Curiae, in view of the complex situation this Court is placed in. 2. The relief sought for in this writ petition is that the respondents be directed to release the petitioner in respect of the order, dated 06.01.2009, in Crl.M.P.489 of 2009 in C.C.No.140 of 2006, on the file of V Additional Chief Metropolitan Magistrate- cum-Principal Magistrate of Juvenile Justice Board at Hyderabad. 3. There is a lot of scope for discussion and controversy as well, in cases of the present nature. 4. The factual background, in brief, appears to be that the petitioner, who was a juvenile as on the date of commission of the offence under Section 302 I.P.C., allegedly along with another person, who at present is absconding, killed two persons. 5. After filing charge sheet, when the trial had commenced, the petitioner, who had been attending the Court till then, stopped attending the Court. Therefore, bailable warrant was issued against him and pursuant thereto, the petitioner was arrested and when produced before the Magistrate, it appears, it was urged that the petitioner was a juvenile not only on the date of commission of the offence but also on the date of his arrest and hence he is entitled to the benefits under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for brevity ‘the Act’). 6. A bail application was also moved before the V Additional Chief Metropolitan Magistrate-cum-Principal Magistrate of Juvenile Justice Board at Hyderabad, upon which, the Magistrate passed an order, rejecting the release of the petitioner on self-bond, which reads as under:- “Since none of the parents and family members of BJ are evincing any interest in BJ and every likelihood of his coming into contact with his associates, I don’t see any reason to release him on S.B. In the result, petition is dismissed.” Note: BJ = Boy juvenile SB = Self bond 7. The learned counsel appearing for the petitioner brought to the notice of this Court that it is the duty of the Government to constitute Juvenile Justice Board (for short ‘Board’) and that, if a person is found to be a juvenile, at any stage of the proceedings, or a juvenile as on the date of commission of the offence, his status would remain as a juvenile only, notwithstanding his attaining the majority at a later point of time or during the pendency of the trial. 8. The learned counsel took us through various provisions of the Act, including Section 12 of the Act. 9. Section 12 of the Act deals with the powers of the Board in connection with the bail of the juveniles and postulates that when accused person, who is apparently a juvenile, is arrested for commission of the offence, either bailable or non-bailable, and is produced before the Board, such person, notwithstanding the provisions of the Code of Criminal Procedure, shall be released on bail and be placed under the supervision of a Probation Officer or under the care of any fit institution or fit person, but he shall not be so released if there appear reasonable grounds for believing that such a release is likely to bring him in association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. 10. Further, the Board has power to make an order, as an alternative to pass an order of release, sending him to an Observation Home or to a place of safety pending inquiry. 11. Section 4 of the Act further contemplates that a Juvenile Justice Board has to be constituted by the State Government consisting of Metropolitan Magistrate or a Judicial Magistrate of First Class along with two social workers. 12. Section 6 of the Act deals with the powers of the Board. 13. Section 7 of the Act deals with the procedure to be followed by a Magistrate not empowered under the Act and the same is extracted hereunder for ready reference: “(1) When any Magistrate not empowered to exercise the powers of a Board under this Act is of the opinion that a person brought before him under any of the provisions of this Act (other than for the purpose of giving evidence), is a juvenile or the child, he shall without any delay record such opinion and forward the juvenile or child and the record of the proceeding to the competent authority having jurisdiction over the proceeding. (2) The competent authority to which the proceeding is forwarded under sub-section (1) shall hold the inquiry as if the juvenile or the child had originally been brought before it.” 14. The said section contemplates that when any Magistrate, who is not empowered to exercise the powers of a Board, is of the opinion that the person brought before him is a juvenile or a child, he shall record such opinion and forward the juvenile or the child and the record of the proceedings to the competent authority. 15. Section 8 of the Act deals with the establishment of the Observation Homes. 16. There is no much controversy about the establishment of Observation Homes or Special Homes. 17. The questions to be answered in the present case are as follows - (1) Whether the petitioner is a juvenile or not? And in such doubtful circumstances, whether an enquiry has to be conducted as prescribed under the provisions of the Act? (2) As to what should follow when any accused person is found to be a juvenile? (3) As to what should follow when an application for bail is filed by such a person? 18. The answer to the first question is that, obviously, it appears that the petitioner is a juvenile since he was 16 years as on the date of commission of offence. The mere expression regarding his age is not sufficient, however an enquiry has to be conducted as prescribed under law. But, since there is no much controversy regarding the status of the petitioner as a juvenile, for the time being, we propose to proceed on the presumption that the petitioner is a juvenile till a regular enquiry is conducted under Section 7-A of the Act. 19. In answer to the second question, it is obvious from the provisions of the Act that when an accused person so arrested is found to be juvenile and is produced before the Magistrate, despite such Magistrate does not possess the authority to proceed against such person under the provisions of the Act, since it is only the Juvenile Justice Board that has got the jurisdiction, he can record his opinion that the person brought before him is a juvenile or child and forward the juvenile along with the record of the proceedings to the Board for further action, which can order bail as prayed for or reject such request, if it is of the view that it is not desirable to release the juvenile on bail if there appears to be a reasonable ground that there is a likelihood of bringing such person into the association with any known criminal or exposing him to moral, physical or psychological danger. 20. Unfortunately, in the present case, since the fact of the petitioner being a juvenile was not brought to the notice of the Magistrate, trial had commenced against him along with other person-BJ-2. It is only when the petitioner did not attend the Court, during the course of trial, bailable warrant was issued and pursuant thereto, his production before the Magistrate was effected and, in those circumstances, an application seeking bail was filed before the Magistrate, which has been rejected recording the reasons, as extracted in the earlier portion of this order. 21. In fact, the Magistrate has no jurisdiction to reject the bail application of the petitioner nor the petitioner is entitled to file an application seeking bail before the Magistrate. 22. In other words, the Act specifically provides a specific relief to the petitioner to file such an application only before the Juvenile Justice Board and it is only such a Board, which has got the jurisdiction, to pass appropriate orders, granting bail or rejecting the same, ordering the juvenile to be kept either in an Observation Home or in a place of safety or under the care of any fit institution or fit person during the pendency of the inquiry. 23. Now, the present situation, as could be seen from the impugned order of the Magistrate, is that the parents and the family members of the petitioner are not evincing any interest in the petitioner and that there is every likelihood of his coming into contact with his associates, hence his release on execution of self-bond was rejected. 24. As already noticed, and as this Court was informed by the learned Assistant Government Pleader for Home, an Observation Home is situate near Chenchalguda Prison, Hyderabad, and a Special Home is situate at Saidabad, Hyderabad. The particulars of location of various other homes, if any, and their details are not coming forth at present. 25. However, in view of the fact that there is an Observation Home, situate very close to Chenchalguda Prison, Hyderabad, and particularly in the light of the language employed in Sub-section (3) of Section 15 of the Act, we deem it appropriate, exercising the extra-ordinary jurisdiction conferred upon this Court under Article 226 of the Constitution of India, to direct the respondents to keep the petitioner in the Observation Home for Boys, Chenchalguda, Hyderabad, since further inquiry or trial, as the case may be, has to be conducted by a Juvenile Justice Board, as postulated under Section 4 of the Act. We are of the further view that if we do not exercise the powers under Article 226 of the Constitution of India, there is every likelihood that injustice would be caused to the petitioner if he is really a juvenile and his detention in prison would be illegal and that there is every possibility that he would be subjected to great prejudice. 26. At this juncture, we have been informed by SriV.Raghunath, Amicus Curiae, that Juvenile Justice Boards are not constituted in spite of the earlier proceedings and the minutes of the meeting recorded under the chairmanship of one Hon’ble judge of this Court along with the Secretary of the Finance Department and the Commissioner/Director of Juvenile Welfare and Correctional Services and Welfare of Street Children. 27. From the discussion, we are able to understand that even the learned Government Pleader for Home, appearing for the respondents, was not properly instructed by the respondents about the existence of the Boards or the constitution of the Board pursuant to the minutes recorded by the Committee, headed by the Hon’ble Ms. Justice G.Rohini. 28. The said minutes supplied to this Court are made part of this record. 29. Under the above circumstances, the writ petition is allowed with a direction to the respondents to keep the petitioner- Somavarapu Nagaraju in the Observation Home for Boys, Chenchalguda, Hyderabad, forthwith, pending further enquiry and further orders to be passed by the appropriate authorities/Courts under the Act. There shall be no order as to costs. 30. We put on record our since gratitude to Sri V.Raghunath, learned counsel appointed as Amicus Curiae, who assisted this Court in this case. _____________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE R.KANTHA RAO 20.10.2009 DR