In a welcome, wonderful and wise judgment titled “Court on its own motion v State” in CRL.REF. 1/2020 that was pronounced on October 27, 2021 and then finally released on October 29, 2021, the Delhi High Court has ordered that investigating officers probing offences committed by juveniles should obtain documents related to age proof and ensure that the ossification test for determination of age is done within 15 days from the date the Juvenile Justice Board (JJB) issues such directions. It must be mentioned here that this remarkable, rational, robust and refreshing judgment was passed by a Bench of Delhi High Court comprising of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani. It also deserves mentioning here that the Court also very rightly directed education institutions and other authorities to cooperate and give priority to the request made by investigating officers for verification of age of juvenile accused which is perfectly in order also as this alone will serve the true purpose of justice by ensuring that the investigation is completed well in time and the trial also starts at the earliest.
To start with, the Bench first and foremost states in para 1 that, “In para 16 of order dated 29.09.2021, this court had passed the following directions :
“i. In all cases alleging petty offences against children/juveniles, where the inquiry has been pending and remains inconclusive for longer than 01 year, regardless of whether the subject child/juvenile has been produced before the JJB, all such inquiries shall stand terminated with immediate effect; a formal order closing all such matters shall be passed by the JJBs in each file within 02 (two) weeks from the date of this order; and any children/juveniles detained in relation to such inquiries, shall be released immediately without waiting for recording the formal orders. In issuing this direction we take note of the fact that when a report/final report is filed alleging a petty offence, it is the State’s own case, that the subject is a child or juvenile. We are passing these directions ex debito justiciae, to correct an error in the judicial dispensation, since we believe there is no justification in keeping such matters pending any longer;
ii. Insofar as cases against children/juveniles who are alleged to have committed petty offences, where inquiries are pending for between 06 months and 01 year, the State is directed to apprise this court of the number of such cases pending in each JJB in Delhi along with the date of institution of the inquiry and the date of first production (if any) in each case, within 10 (ten) days from the date of this order, so that further necessary directions in that behalf may be passed by this court.””
For sake of information, the Bench then puts forth in para 2 that, “In compliance of the directions contained in para 16(i) of order dated 29.09.2021 extracted above, Ms. Nandita Rao, learned Additional Standing Counsel (Criminal) appearing for the State, has placed on record certain documents vidé Index No. 869725 dated 26.10.2021 indicating the status of cases as referred to above in our order dated 29.09.2021, in all 06 Juvenile Justice Boards (‘JJBs’) in Delhi by way of tabulated summaries. Furthermore, Ms. Rao has also handed-up in court an additional tabulated summary relating to JJB-II, Delhi Gate, New Delhi which gives the status of pendency of cases as of today 27.10.2021.”
Of course, the Bench then envisages in para 3 that, “We are informed that as of date, only 19 inquiries relating to petty offences against children/juveniles are pending before JJB-II, while all such inquiries pending before other JJBs either stand closed; or it transpired that there were no such inquiries pending before such Boards.”
Adding more to it, the Bench then enunciates in para 4 that, “Insofar as the 19 cases pending before JJB-II are concerned, Ms. Rao informs us that there are specific reasons for which these inquiries are yet to be closed, details of which are contained in the tabulated summary. Let the tabulated summaries relating to JJB-II as updated to 27.10.2021 be filed on record. In any case, Ms. Rao assures the court that these 19 inquiries will also be closed within the next few weeks.”
While apprising of the latest situation, the Bench then lays bare in para 5 that, “Accordingly, going by the number of inquiries indicated in the tabulated summaries relating to the various JJBs in Delhi, it transpires that according to the State, a total of 913 inquiries alleging petty offences against children/juveniles stand closed as of 27.10.2021.”
Furthermore, the Bench then points out in para 6 that, “Insofar as the directions contained in para 16(ii) of order dated 29.09.2021 extracted above are concerned, Ms. Rao seeks further time to furnish to the court details of the number of inquiries alleging petty offences against the children/juveniles pending for a period between 06 months and 01 year, along with the date of first production, if any. Furthermore, Ms. Rao submits that the rehabilitation plans/individual childcare plans in relation to these juveniles would also be furnished within this timeframe.”
To put things in perspective, the Bench then states in para 7 that, “Ms. Anu Grover Baliga, learned Secretary, DHCLSC who is assisting the court in the matter further suggests that since the first and most significant point of delay in disposal of inquiries is that no timeframe has been stipulated under the Juvenile Justice (Care and Production of Children) Act, 2015 or Model Rules, 2016 for completing the process of age-determination of juveniles, this court may lay-down timeframes within which the age-determination process ought to be completed. Ms. Baliga submits that it is common for an Investigating Officer to take substantial time to collect documents relating to proof of age; and even longer to get an ossification test conducted if directed by a JJB. She suggests that a timeframe of 02 weeks be stipulated by this court for each of the said two stages/processes of age-determination. She points-out that at present S.O. No.68/2017 dated 17.11.2017 issued by the Commissioner of Police stipulates a period of 30 days for determination of age of a child reckoned from the date of making of the application before CWC/JJB. We are informed that this timeline of 30 days was in fact contained in Rule 12 of the earlier Juvenile Justice (Care and Production of Children) Rules, 2007; which timeline is however missing in the Juvenile Justice (Care and Production of Children) Act 2015 and in the Rules framed thereunder.”
Be it noted, the Bench then crucially notes in para 8 that, “Mr. H.S. Phoolka, learned Senior Counsel/Amicus Curiae appearing in the matter has further drawn our attention to the following two aspects:
(a) That though a sizeable corpus is available in the Juvenile Justice Fund set-up under section 105 of the JJ Act, it appears no significant sum has been disbursed for the intended purposes over the past several years;
(b)That there was a proposal to set-up 11 JJBs for a territory as large as Delhi, which at present has only 06 JJBs, though it has 11 judicial districts.”
As a corollary, the Bench then discloses in para 9 that, “In view of the above, it is Mr. Phoolka’s suggestion that information be called from the State about the quantum of funds allocated and those disbursed from the Juvenile Justice Fund; and to also seek an update on the timeframe as regards setting-up of more JJBs to cater to the increasing requirements of Delhi.”
Graciously enough, the Bench then hastens to add in para 10 that, “We have heard learned counsel appearing for the parties at length. We have also given our serious consideration to the suggestions made by Ms. Rao, Ms. Baliga, as well as Mr. Phoolka.”
Most significantly and also most remarkably, what must capture the maximum eyeballs as it forms the backbone of this learned, laudable, latest and landmark judgment is then laid bare in para 11 wherein it is put forth quite aptly that, “Upon considering the various submissions, at this stage, we are persuaded to issue the following additional directions for further streamlining the process of inquiries relating to juveniles, for scrupulous compliance by all concerned authorities :
(a) In all cases pertaining to juveniles in conflict with law, regardless of the nature of offences alleged, upon directions issued by a JJB after production of a juvenile before it, the Investigating Officer of the case shall collect and file before the JJB requisite documents towards proof of age of the juvenile within 15 days from the date of issuance of such directions;
(b) In all cases pertaining to juveniles in conflict with law, regardless of the nature of offences alleged, upon directions issued by a JJB after production of a juvenile before it, the Investigating Officer of the case shall ensure that the ossification test in relation to the juvenile is completed, a report is obtained and filed before the JJB within 15 days from the date the ossification test is ordered by a JJB;
(c) In all cases pertaining to juveniles in conflict with law, regardless of the nature of offences alleged, the JJB shall ensure that the process of age-determination of the juvenile is completed within 15 days from the filing of documents relating to proof of age/ossification test report by the Investigating Officer, as the case may be;
The concluding part is available on thedailyguardian.com
(d) It is further directed that all persons/educational institutions/medical institutions/governmental authorities to whom a request is made by an Investigating Officer for providing documentation towards age-determination or for conducting ossification test on a juvenile, shall give priority, cooperate and undertake necessary procedures and processes to enable compliance with the time-lines set-out above.”
As we see, the Bench then directs in para 12 that, “We grant to the State 04 weeks’ time for furnishing the information as directed in para 16(ii) of order dated 29.09.2021 relating to inquiries for petty offences pending before all JJBs in Delhi between 06 months and 01 year, giving the number of such cases pending in each JJB in Delhi along with the date of institution of the inquiry and the date of first production of the juvenile, if any, in each case; and preferably also including the rehabilitation plan/individual care plan for each child/juvenile. It is further directed that data for each JJB be presented in the same/common format of the choosing of the State, so that the data is easily comprehensible and comparable as between various JJBs.”
What’s more, the Bench then further adds in para 13 that, “The State is further directed to apprise the court as to the quantum of money sanctioned and allocated for the Juvenile Justice Fund; and the quantum disbursed from the said fund, along with the purpose for which money was disbursed, as of 30.11.2021. (cf. Rule 83 of JJ Rules 2016).”
Not stopping here, the Bench then also adds in para 14 that, “The State is also directed to apprise the court as to the status of the proposal to increase the number of JJBs in the city, including the timelines proposed for the purpose.”
Finally, the Bench then concludes by holding that, “List for further consideration of the matter on 14.12.2021.”
In sum, we certainly have to keep our fingers crossed as this notable case is yet to be finally decided. But one thing is for sure: The extremely commendable directions that the Delhi High Court has issued in this notable judgment as laid bare in para 11 must be implemented forthwith in right earnest as this alone will serve the true purpose of justice. In other words, the age verification of juveniles must be completed within 15 days as directed by the Delhi High Court in this noteworthy judgment also! No doubt, all the educational institutions, medical institutions and government authorities also must accordingly cooperate in this direction meaningfully so that the age determination of the juvenile is completed within the stipulated time of 15 days. This is the crying need of the hour also!
Sanjeev Sirohi, Advocate,
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MP HIGH COURT SEEKS DGP’S REPLY: DOES POLICE’S FAILURE TO COMMUNICATE FULL CRIMINAL ANTECEDENTS OF ACCUSED AMOUNTS TO MISCONDUCT, INTERFERENCE WITH JUSTICE?
The Madhya Pradesh High Court in the case Kuldeep Dohare Versus the State of Madhya Pradesh observed, recently the Gwalior bench directed the Director General of Police, State of Madhya Pradesh to file an affidavit explaining as to whether non-communication of criminal antecedents of an Applicant or Accused to the Court is a minor misconduct or if it amounts to interference with the criminal justice dispensation system. Before the next date of hearing, the affidavit is to be filled.
The bench comprising of Justice G.S. Ahluwalia observed and remarked that the court was frequently finding that the police authorities were not sending the complete criminal antecedents, in spite of the circular issued by Police Headquarters.
It was observed that the police authorities did not send the criminal antecedents of the applicant. Furthermore, it is clear that it is a clear attempt to facilitate the applicant to obtain bail by projecting that he has no criminal antecedents. The issue raised is weather the conduct of police officers can be said to be a minor negligence or it is an interference with the criminal justice dispensation system?
In the present case, the court was dealing with a bail application moved by the accused applicant for offences punishable under section 307, Section 149, section 148, section 147, section 506, section 294, section 201. On an earlier hearing, the court had observed that even though the case diary did not reflect any criminal antecedents on the part of the Applicant. The impugned order passed by the lower court rejecting his bail application mentioned otherwise.
It was observed that a reply was sought by the court from the Superintendent of Police, District Bhind as to why the important information with regard to the criminal antecedents of the Applicant were withheld by the respective SHO. The SP informed the Court on the subsequent hearing that the SHO concerned as well as the Investigating Officer in the case were found guilty of misconduct and were fined with Rs. 2,000 and Rs. 5,000, respectively.
The Court observed that since the problem was stemming from different police stations. However, the DGP should file his reply regarding the prevailing situation-
Since in different police station, this situation is prevailing. Therefore, an affidavit is directed to be filled by the DGP, State of Madhya Pradesh as to whether non- communication of criminal antecedents of an applicant is a minor misconduct or it amounts to interfere with the criminal antecedents of justice dispensation system.
Accordingly, the affidavit needs to be filled within a period of 1 week, the matter would be heard next on 08.07.2022.
HIGH COURT OF MADHYA PRADESH: SECTION 5 OF THE LIMITATION ACT APPLIES TO ARBITRATION REFERENCE UNDER NATIONAL HIGHWAY ACT, 1956
The High Court of Madhya Pradesh in the case Ghanshyam Gupta v. State of Madhya Pradesh and Ors observed and stated that Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956.
The Division Bench comprising of Justice Ravi Malimath and Justice Purushiandra Kumar Kaurav observed and reiterated that since no limitation is provided under Section 3G (5) of the National Highways Act. The bench stated that the provisions of Article 137 of the Schedule to the Limitation Act, 1963 would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
FACTS OF THE CASE:
The petitioner, Mr. Ghanshyam Gupta was the landowner of the land which was acquired by the Respondent, Madhya Pradesh Road Development Corporation. Thereafter, the competent authority determined the quantum of compensation payable to the petitioner and passed an award to that effect on 30.07.2015.
The petitioner being dissatisfied with the quantum of compensation determined by the competent authority. On 04.12.2019, an appeal was filled by the petitioner before the arbitrator. The appeal was dismissed by the arbitrator as time-barred filed after the expiry of three years limitation period.
the petitioner filed a writ petition before the High Court, Aggrieved by the decision of the arbitrator.
Contentions Raised by the Parties:
It is stated that Section 5 of the Limitation Act is applicable to arbitration reference under Section 3G (5) of the National Highways Act, 1956.
It was observed that the petitioner was unaware of the availability of the remedy of appeal against the decision of the competent authority, the petitioner only after consulting his lawyer, that the petitioner came to know that he could seek enhancement. Further, there is a valid ground to condone the delay.
The submissions of the petitioner were countered by the Respondent on the following grounds:
Though, in the absence of a period of limitation for filing an appeal under Section 3G (5) of the Act of 1956, it was construed that the provisions of Article 137 of the Limitation Act would stand applicable.
It was stated that Article 137 provides for 3 years period, and the petitioner filed the appeal after a delay of 4 years.
The court observed and stated that since no limitation is provided under Section 3G (5) of the National Highways Act, the provisions of Article 137 of the Schedule to the Limitation Act would apply to such proceedings.
Therefore, the court held that the limitation period for filing an appeal against the decision of the competent authority before the arbitrator from the date of expiry of 90 days is three years from the decision of the competent authority.
The court observed that there is nothing in the National Highways Act that excludes the applicability of Section 5 of the Limitation Act. However, Section 5 of the Limitation Act would be applicable to reference to arbitration under the National Highways Act, 1956 and the arbitrator has the power to condone the delay against the award, in filing an appeal by the competent authority.
The court noted that the petitioner was not aware that an appeal could be filed against the decision of the Competent Authority and it is only after consulting his lawyer that the petitioner came aware of any such right, therefore, there is sufficient reason to condone the delay.
Accordingly, the application was allowed by the court and the court directed the arbitrator to decide the case of the petitioner on merit.
KERALA HIGH COURT APPOINTS AMICUS CURIAE IN SARITHA NAIR’S PLEA; IS A STATEMENT RECORDED U/S 164 CRPC A PUBLIC DOCUMENT?
The Kerala High Court in the case Saritha S. Nair v. Union of India & Anr observed and appointed an amicus curia to assist the court to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.
The bench comprising of Justice Kauser Edappagath appointed the amicus curiae, in the petition filled by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, the accused in the gold smuggling case.
The court appointed Advocate K.K. Dheerendrakrishnan, as the amicus curiae in the case.
In the present case, it was observed that Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to install solar power units for them or by making them business partners and by receiving advance payments for the same.
Moreover, Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.
It was observed that when the petition came up for hearing, the counsel appearing for the petitioner, Advocate B.A Aloor appearing that the statement given by Swapna was a public document and therefore the petitioner was entitled to get a copy.
Further, Nair approached the Court apprehending that certain allegation may have been brought on record against her in the statement given by Suresh. It was prayed by Nair, that the c court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, the hardship and as well as physical and mental agony.
It was observed that the Nair had had initially moved the Principal District and Sessions Court of Ernakulam, with the same request, but this was denied. The court noted and adjourned the matter to July 11, while on a petition filed by the accuse, Saritha S. Nair in the solar scam cases, for seeking a directive to provide a copy of the statement given by Swapna Suresh, accused in the diplomatic gold smuggling case before a subordinate court.
Supreme Court issues notice in an SLP; can section 156 (3) CRPC be invoked after failing to get desired relief in a civil suit?
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation.
The Supreme Court in the case Usha Chakraborty vs State of West Bengal observed and issued a notice in a Special Leave Petition filled, raising an issue whether in a dispute essentially in a dispute of civil nature that can a person, after having failed to get the desired relief from a civil suit, invoke Section 156(3) of the Code of Criminal Procedure?
In the present case, an FIR was registered against the accused under Sections 323, Section 384, Section 406, Section 423, Section 467, Section 468, Section 420 and Section 120B of the Indian Penal Code, 1860 following an order passed by the Magistrate under Section 156(3) CrPC.
It was observed that before the Calcutta High Court, it was contended by the accused that the allegations made in the application under Section 156(3) CrPC fails to make out any offence against them. Further, it was submitted that a frustrated unsuccessful litigant before the Civil Court has approached the Criminal Court and the Criminal Investigation, which has commenced, is for the purposes of throttling them. The petition was dismissed by the High Court observing that the materials which have already been collected by the Investigating Agency, prima facie, make out a case for investigation. The issue raised before the court was weather the same would make out an offence after the investigation is concluded is absolutely at the end of the investigation to be analysed.
Therefore, challenging this order, one of the accused approached the Apex Court. However, It was submitted that the dispute is essentially of civil nature, for which the applicant in Section 156(3) CrPC petition filed a civil suit but having failed to get the desired relief, he invoked Section 156(3) CrPC.
The bench comprising of Justice Surya Kant and the Justice JB Pardiwala, while issuing notice also stayed further proceedings in FIR lodged against the accused.
GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN
The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.
It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.
It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.
It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.
In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.
It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.
Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court
As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.
The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.
It was ordered by the court status quo till July 11, the next date of hearing.
The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.
In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.
In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.
Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.
Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.
As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.
It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.
It is submitted that these observations would apply across the board, in the entire NCT of Delhi.
Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.
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