IRSHAD KOHLI Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) ORDER :- This revision petition is directed against an order passed by learned Sessions Judge, Jammu on 30-4-1999. The petitioner-accused, who claims to be a child, as defined under the Children Act, 1970 (hereinafter referred to as the Act), is standing trial in terms of Section 3/27 of Enemy Agents Ordinance Act read with other provisions. He filed an application before the trial Court for holding an enquiry with respect to his status as a child and granting him clemency of the Act. That application was rejected by the trial Court vide the impugned order. The only ground taken for such rejection was that two original certificates one issued by the School and other by the Numberdar concerned, were not produced before the Court below. This order has been challenged on the ground that the learned Sessions Judge did not take into account the scheme and object of the Act and enquiry as envisaged by the Act, was not conducted. Notice in this petition was issued to the State on 24-5-1999. Mr. P. C. Sharma appeared and accepted notice on 9-7-1999. Today when I took up the matter, nobody appears for the State.

(2.) I have heard the learned Counsel for the petitioner. In order to understand the Act, we will have to recognise complexion and appreciate its scheme and object. Before doing that we will have to trace its origin. The Act owes its origin to the constitutional philosophy of India. Securing of social justice is one of the aims of the sovereign republic while Art. 38 in general terms binds the State to make all efforts to promote welfare of people to secure the cause of social justice. Parliament and Judiciary both have acknowledged children to be the most precious national wealth. Therefore, Art. 39(e) and (f) in particular, outlines the protection sought to be extended to children. The directive principles of the State Policy thus aim at providing fullest opportunities and facilities to children to ensure them all round development, to create conditions of freedom and dignity for them and to protect them against abandonment moral and material. The Act which is purely a social welfare legislation is a product of this philosophy, and seeks to fulfil the dream of the Constitution translated into expressions in terms of Arts. 38 and 39(e) and (f).

(3.) The object of the Act, therefore, is to ensure the welfare and protection of those of the criminals who are on the threshhold of the most turbulent stage of adolescence. This object is revealed by the preamble of the Act, which reads as under :-