Juvenile Justice Care and Protection Act is social welfare legislation. Such statutes enacted by Parliament are also known as remedial statutes. Its preamble clearly shows that it is “an Act to consolidate and amend law relating to denials in conflict with law and children in need of Care and Protection by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child friendly approach in adjudication and disposition of matters in best interest of children and for ultimate rehabilitation and for matters connected therewith or incidental thereto.” It was also realized by Indian Parliament while passing Juvenile Justice Act under article 253 of Constitution of India that criminal justice system which was applicable on an adult was not suited to a juvenile even though such a child might be legally represented or supported by police or a voluntary organization like a non-governmental organization or even parents.
However this remedial statute is still not being implemented by police and judicial authorities as required by its provisions. This statute categorizes offenses into serious offenses and non-serious or simple offenses. A serious offense that which entails a punishment of more than seven years in case same offense is committed by an adult. And any offense which is not a serious offense is then categorized under rule eleven as a simple offense. It is clearly mentioned that police shall not be required to lodge a First Information Report or even file a charge sheet against juvenile in court except where offense is of serious nature for example in case of rape and murder. Instead procedure is that police shall simply record information about offense committed by juvenile in general diary. This shall be followed by report containing social background of accused juvenile. In this report, circumstance in which juvenile was apprehended and context in which alleged offense was committed is to be analyzed. This report is then sent to Juvenile Justice Board when case against juvenile is first heard by it.
These provisions must be read by courts as mandatory provisions and not merely directory in nature. This is because Juvenile Justice Care and Protection Act is a piece of legislation which was enacted to cure an immediate mischief. Purpose behind enactment was to bring about social reform by ameliorating conditions of juveniles/ children so that development of children may not be hampered. That is why juveniles are not given any punishment except in rarest of rare cases under Act. And even then they are not incarcerated with adult criminals. Such statutes which are remedial in nature are also called welfare statutes or beneficiary legislation or even legislation oriented for social Justice. This type of legislation is different from penal statutes. Penal statutes provide punishment in case of violation of law and result in imprisonment or fine or can even result in death penalty. Main object of penal statutes is to punish and make convict suffer.
Writ Petitions or petitions under section 482 of CrPC in context to Juvenile Justice Act can only be entertained by high courts of states or Supreme Court of India. For example only those Criminal Lawyers in Chandigarh who practice in Punjab and Haryana High Court can file petitions to seek relief under Juvenile Justice Act. Such petitions are filed on behalf of juveniles in Punjab, Haryana and Chandigarh. Punjab and Haryana High Court at Chandigarh has held that a legislation which is remedial in nature is to be construed liberally. According to Constitution of India High Court Chandigarh is court which is “not an inferior court”. Therefore it has power to interpret statutes and even Constitution of India itself. It is also been held by court that penal legislation should be “strictly construed” by the courts. Statement of objects of 2006 amendment in Act states that purpose of amendment is not to involve police in inquiry process, if accused is a juvenile. Claim by an accused that he was juvenile when offense was committed can be raised before any court. This claim can be raised even after disposal of case by Punjab and Haryana High Court. For example – the court case of a juvenile was dismissed by High Court Chandigarh. Claim that person was juvenile when offense was committed was successfully raised for first time before Supreme Court of India in a special leave petition. Criminal Lawyers in Chandigarh have also been successful in petitions for anticipatory bail, regular bail or even quashing of first information report or quashing of criminal complaint against juvenile. Advocates practicing in High Court Chandigarh have also argued that evidence regarding age which makes a person juvenile can be taken directly by Punjab and Haryana High Court or even Supreme Court of India in petition pending before it.
In case regular bail in Punjab and Haryana High Court is filed by a person who is juvenile and has been arrested by a police officer without knowledge that person was juvenile when offense was committed, High Court has held that release of juvenile is mandatory and regular bail has been granted in such cases by High Court Chandigarh.
Lawyers in Chandigarh have also contested matters where juveniles were being tried by district courts in Punjab and Haryana like those of Mohali and Panchkula on ground that a juvenile cannot be “tried” in a court of law. Only an inquiry can be initiated against a juvenile if he commits an offense.
In certain petitions filed by advocates practicing in Punjab and Haryana High Court at Chandigarh it has been held that only a few types of orders can be passed by Juvenile Justice Board against juvenile in conflict with law. These orders included admonition or counseling or performing community service like serving in old age homes. If juvenile is above fourteen years he can be sentenced to pay fine. Juveniles can also be sent to special homes in rarest of rare cases. In quashing petitions filed before Punjab and Haryana High Court, advocates have successfully argued that order of death penalty or imprisonment in a jail having adult criminals cannot be passed against juvenile. While filing quashing petitions under section 482 of Criminal Procedure Code, advocates in Chandigarh have been successful in getting order of framing of charges against juvenile under section 223 of civil procedure code quashed by High Court Chandigarh. Where courts have convicted juvenile without knowledge of beneficial provisions of Juvenile Justice Act, advocates in Chandigarh have filed petitions under article 226 of Constitution of India so that his qualifications attached with conviction of a juvenile can be removed. High Court Chandigarh has also entertained petitions under section 42 of Criminal Procedure Code or article 226 of Constitution of India prohibiting publication of name of juvenile in any proceedings undertaken under Act. While allowing one of petitions filed by lawyers in Chandigarh, Punjab and Haryana High Court has held that if a judicial authority finds that a person was juvenile on date of commission of offense, such a finding cannot be reversed in any appeal or revision or any other order passed by any superior court even if later it is found that actually person was not juvenile when offense was committed.
In one of cases with quashing of First Information Report (F.I.R.) was filed before Punjab and Haryana High Court at Chandigarh it was held that word “shall” referred in rule eleven of Juvenile Justice Act meant that provision was mandatory nature. Punjab and Haryana High Court followed Supreme Court judgment of AIR 1977 SC 740 “if conditions in which power is to be exercised in a particular case are also specified by statute or by rules then, on fulfillment of those conditions, power conferred becomes annexed with a duty to exercise it in that manner”. It was also held by High Court Chandigarh that words used in Juvenile Justice Act were enabling words. Due to that High Court inferred a duty to exercise power for enforcement of rights of juvenile (AIR 1971 SC 33). In yet another quashing petition before Punjab and Haryana High Court at Chandigarh, court held that since power was vested under Juvenile Justice Act in police authorities to do certain things in a particular way, police authorities must have done those things in only that particular way or none at all. Chandigarh High Court held that all other methods of performance by judicial or police authorities were necessarily forbidden (AIR 1936 PC 253).
Criminal Defense Advocates in Chandigarh were also able to successfully argue before High Court Chandigarh that prohibitive and negative words “shall not be required” were used in Juvenile Justice Act. Punjab and Haryana High Court at Chandigarh held that “prohibitive or negative words can rarely, if ever, directory.” (2002 253 ITR 705 Delhi; AIR 1961 SC 1107).
However despite all these judgments passed Punjab and Haryana High Court at Chandigarh and clear words of Juvenile Justice Act and rules made under, lower courts in districts of Punjab and Haryana still do not follow provisions. Moreover police authorities are so negligent that they still do not care that First Information Report, F.I.R. cannot be lodged against juvenile and only a general diary report can be made against him. This is reason that lawyers and advocates in Chandigarh file petitions under section 482 of procedure code for quashing of First Information Report or quashing of criminal complaints against juvenile in Punjab and Haryana High Court at Chandigarh and get relief sought from High Court. These law points which show violation of mandatory provisions of criminal Justice Act and rules made under Juvenile Justice Act also help lawyers in successfully getting anticipatory bail and regular bail of juveniles from Punjab Haryana High Court at Chandigarh.