AB RASHID Vs. YASMEEN BASHIR

JUDGEMENT

(1.) THE respondent is alleged to be responsible for the murder of Farooq Ahmed and was declared as a child under the children Act directed to be released on bail vide the order impugned in this revision petition. It was further directed that the case against the respondent shall be conducted in accordance with the provisions the Children Act (hereinafter referred to as the Act.) The father of the deceased has moved this petition for setting aside the order impugned on the ground that the order completely ignoring the provisions of the Act. I have beard learned counsel for the parties and perused the record.

(2.) FROM the police report it appears that the deceased who was a young child of 16 years was allegedly murdered by the respondent and others during the broad day light and in a congested locality of the city of Jammu. The petition filed by the respondent for bail allegedly presented on 20.4.1991 and thereafter on 25.4.1991, was disposed of by the court below vide the order impugned in this petition after recording the statement of the mother of the accused respondent. The prosecution had resisted the application and prayed for the conduct of ossification test for ascertaining the age of the respondent. The petitioner herein has also placed on record a certificate of the department of radiological, Govt. Medical College, Jammu and SMGS Hospital, Jammu, holding radiological bonage of the patient is between 18 to 20 years."

(3.) THE Act was enacted to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the separate trial of such children. The Act was necessitated because children were considered to be the most vulnerable group of the society in need of greatest social care. It was considered by the legislators that on account of their vulnerability and dependence they can be exploited ill -treated and directed info undesirable channels by anti social elements in the community. With the increased industrialisation and urbanisation, the state was bound TO be under a duty of according proper care and protection to the children under the provisions or the Act. Besides our stat 3. The Act was enacted to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the separate trial of such children. The Act was necessitated because children were considered to be the most vulnerable group of the society in need of greatest social care. It was considered by the legislators that on account of their vulnerability and dependence they can be exploited ill -treated and directed info undesirable channels by anti social elements in the community. With the increased industrialisation and urbanisation, the state was bound TO be under a duty of according proper care and protection to the children under the provisions or the Act. Besides our stat% many other states had enacted laws for the protection and welfare of the children. The purpose and object of the Act was never intended to be used by the hardended criminals under the cloak and cover of the Act to usher benefits upon the criminals who were not children within fie meaning of the Act. The enactment had a social purpose and was never intended to be used as on instrument by unscruplous litigants and criminals for getting protection or shelter under the Act. A duty is cast upon the courts to be alret to see that the purpose of the enactment is not defeated by the criminals who otherwise are not entitled to the protection of the Act. As the ct confers benefits and protection to the accused children, the power under the Act has to be exercised with due care and caution and not in a casual manner. The existing realities of life pertaining to law and order have to be kept in mind, by the courts exercising Powers under the Act. Whereas the protection contemplated by the Act has to be provided to the genuine children same cannot be allowed to be misused by clever criminal litigants. A study of the rise of crime in the country would reveal that the youth is more prone to and allured by the crime either under the forced circumstances or as a measure of pleasure. The powers under the Act should be exercised strictly in accordance with the procedure prescribed and not otherwise. ËœChildâ„¢ has been defined to mean a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. Sec, 18 of the Act mandate the court to release an accused child on bail with or without surety and casts a duty upon it to ensure that if there appear reasonable grounds for believing that the release was likely to bring the child into association with any reputed criminal or expose him to moral danger or that his release would defeat the ends of justice, not to release him on bail. In that event every child therefore, is not entitled to be released on bail and the court has to be satisfied about the non -existence of the dangers indicated in the section. Before exercising the powers of releasing a child on bail, the procedure prescribed under Sec. 32 of the Act, has to be followed and the circumstances as enumerated in Sec. 33 of the Act to be taken note of.