JASPREET SINGH Vs. STATE OF J. & K.

JUDGEMENT

(1.) PETITIONERS Jaspreet Singh and Amandeep Singh figure as accused in case titled State v. Jaspreet Singh and Anr. facing trial for charge under Sections 302/341/34 of RPC before learned Sessions Judge Jammu. Their plea for enlargement on bail was turned down by learned Sessions Judge inspite of finding recorded to the effect that both of them were below 18 years of age when the offence is alleged to have been committed. Unfazed by declining of bail at the hands of learned Sessions Judge, the petitioners have approached this Court through the medium of instant petition filed under Section 498 of Cr.P.C. for grant of bail. It is averred in the petition that during the pendency of Challan, petitioners filed an application before learned Sessions Judge claiming bail on the ground that they were juveniles at the time of alleged occurrence which led to an inquiry in which it was proved that the petitioners were below 18 years of age at the time of alleged occurrence. However, learned Sessions Judge rejected the bail plea by holding that the petitioners could not be given benefit under Juvenile Justice Act 2013. It is further averred in the petition that Juvenile Justice Act 2013 has been enforced in the State and petitioners are entitled to bail. It is pointed out that learned Sessions Judge has omitted to consider provisions of Section 2(m)(n), Sections 8, 13 and 21 of the Juvenile justice (Care and Protection of Children) Act 2013 which, when read together explicitly suggest that even if a person was not a juvenile under the old Act, he had to be treated as juvenile after coming into force of the new Act. It is further pointed out that in terms of Section 21 of the new Act the definition of juvenile would apply even if such person ceased to be so on or before the date of commencement of new Act. Thus, petitioners claim to be entitled to statutory right of bail in view of law laid down by Hon'ble Apex Court in Hari Ram v. State of Rajasthan & Anr. reported in : 2009 (2) RCR 878 SC and Amit Singh v. State of Maharashtra reported in : 2011 (3) RCR 859 SC.

(2.) NOTICE of the motion was served upon learned Additional Advocate General. As the petition involved interpretation of provisions of the Juvenile Justice (care and protection of Children) Act 2013 (Herein after referred to as 'the Act'), the petition was treated as revision. Opportunity was afforded to petitioners as also the State to address the Court.

(3.) THE JJ Act provided for constitution of juvenile welfare boards to deal with neglected juveniles. It also provided for constitution of juvenile courts to deal with delinquent juveniles. However, the JJ Act, like previous legislations on the subject of juveniles, did not achieve the desired results as the institutions required to be set up under the Act did not come up. It was an unfortunate state of affairs. In absence of constitution of Juvenile Welfare Boards and Juvenile Courts powers were being exercised by the Judicial Magistrates of 1st Class to deal with the neglected juveniles as well as delinquent juveniles. Juvenile homes, special homes and observation homes for perception of juveniles were not set up. No provision was made for aftercare of the rehabilitated juveniles. The State was lagging behind in updating the legislation to bring it on a par with the central legislation which enacted and adopted the Juvenile Justice (Care and Protection of Children) Act, 2000 introducing changes of far reaching consequence. At long last, the State of Jammu and Kashmir rose to the occasion and enacted Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 consolidating and amending the law relating to juveniles in conflict with law and children in need of care and protection. The Act which is pari materia with the Central Act of 2000 with subsequent amendments introduced in 2006, was enforced in the State with effect from 22nd July, 2013. The Act defines "juvenile" or "child" as a person who has not completed eighteenth year of age. This is a complete departure from the definition of juvenile in JJ Act of which defined a female child below eighteen as a juvenile but excluded a male child above sixteen years of age from the definition of juvenile. The Act, has, thus removed the disparity insofar as gender is concerned and the relevant age for determining whether a child, male or female, is a juvenile, is eighteen years. Apart from it, the term 'delinquent juvenile' has been substituted by 'juvenile in conflict with law' which has been defined as under: