ORDER
Dipak Misra, J.
1. Bulwer had proclaimed long back :
Personal liberty is the paramount essential to human dignity and human happiness.
John Dryden while speaking about 'liberty' had stated with committal serenity in the following terms:--
Oh, give me liberty! For even were paradise my prison still I should long to leap the crystal walls.
Milton eulogizing liberty had so pronounced :
Where liberty dwells, there is my country.
The philosophers, thinkers, the law givers and the statesment have time and again accentuated on the imperative characteristics of 'liberty', for without liberty, life is not worth living. Liberty spiritualizes a human soul and clothes the living process with immense dignity. Life fondly embraces liberty and in turn, liberty enlivens life. The beauty and perfection in a way get synchronized. The nature within wonderfully corresponds to the state of liberty as guided and conferred by law. I may profitably reproduced a few lines from Wayne Krome :
Truth and love are my law and worship; form and conscience my manifestation and guide;
Nature and peace are my shelter and companion;
Order is my attitude;
Beauty and perfection are my attack.
2. I have begun with the prolegomenon as the petitioner, describing himself as a boy in the first year of teen and has filed this petition through his father and natural guardian seeking quashment of proceedings of Criminal Case No. 143 of 2004 pending in the Court of Chief Judicial Magistrate and Juvenile Justice Court, Jabalpur for an offence punishable under Section 376, IPC on the ground that the trial has not been completed within four months as mandated under Section 14 of the Juvenile Justice (Care and Protection of Children) Act, 2000, as his liberty has been curtailed and freedom constricted.
3. In Pratap Singh v. State of Jharkhand and Anr., : 2005CriLJ3091 , the Constitution Bench of the Apex Court in Paragraph 19 expressed the view that the legislative intendment underlying Section 3 read with the Preamble, aims and objects of the Act is clearly discernible. A conjoint reading of the section, preamble, aims and objects of the Act leaves no manner of doubt that the Legislature intended to provide protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication thereof. Their Lordships further expressed the view that the enactment is a piece of social legislation meant for protection of infants who commit criminal offences and therefore such provisions require to be liberally and meaningfully construed so as to advance the object of the Act.
4. In the said judgment, S.B. Sinha, J. in Paragraphs 48 and 49 dealt with the objects of juvenile justice legislation. They read as under :--
48. The purpose of the juvenile justice legislation is to provide succour to the children who were being incarcerated along with adults and were subjected to various abuses. It would be in the fitness of things that appreciation of the very object and purpose of the legislation is seen with a clear understanding which sought to bring relief to juvenile delinquents.
49. The problem of juvenile justice is, no doubt, one of tragic human interest so much so in fact that it is not confined to this country alone but cuts across national boundaries. In 1966 at the Second United Nations Congress on the Prevention of Crime and Treatment of Offenders at London this issue was discussed and several therapeutic recommendations were adopted. To bring the operations of the juvenile justice system in the country in conformity with the UN Standard Minimum Rules for the Administration of Juvenile Justice, the Juvenile Justice Act came into existence in 1986. A review of the working of the then existing Acts both State and Parliamentary would indicate that such greater attention was found necessary to be given to children who may be found in situations of social mal-adjustment, delinquency or neglect. The justice system as available for adults could not be considered suitable for being applied to juveniles. There is also need for larger involvement of informal system and community-based welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles.
5. It is relevant to state here that the Juvenile Justice Act, 2000 was enacted to consolidate and amend the law relating to juveniles 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 the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment.
6. In the objects and reasons, it has been provided that the State has the primary responsibility to ensure that all the needs of children are met and their basic human rights are fully protected as per the Constitution. Section 2(c) of the Act in the dictionary clause defines 'Board' to mean a Juvenile Justice Board constituted under Section 4. Section 5 deals with the procedure etc., in relation to Board. Section 6 postulates the power of Juvenile Justice Board, which read as under :--
6. Powers of Juvenile Justice Board.-- (1) Where a Board has been constituted for any district or group of districts, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.
7. Section 14 deals with inquiry by Board regarding juvenile. The said provision is as under :--
14. Inquiry by Board regarding juvenile,-- Where a juvenile having been charged with the offence is produced before a Board, the Board shall hold the inquiry in accordance with the provisions of this Act and may make such order in relation to the juvenile as it deems fit:
Provided that an inquiry under this Section shall be completed within a period of four months from the date of its commencement, unless the period is extended by the Board having regard to the circumstances of the case and in special case after recording the reasons in writing for such extension.
Section 15 provides for orders that may be passed regarding juvenile. Section 16 provides for orders that can not be passed against a juvenile. Section 17 provides that notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973, no proceeding shall be instituted and no order shall be passed against a juvenile under Chapter VIII of the said Code.
8. I have noted the aforesaid provisions as the asseverations have been made in the writ petition putting forth the stance that Criminal Case No. 143/2004 instituted for an offence punishable under Section 376, IPC, pending before the Chief Judicial Magistrate, deserves to be quashed as the trial has not been completed within a period of four months. It is urged in the petition that the petitioner was born on 30th June, 1990 and was a student of a Government Middle School, Kanhwara, District Katni from where he passed Class 6th Examination in 2004. On the basis of a report lodged by one Kandhilal, the offence punishable under Section 376, IPC was registered giving rise to Crime No. 142 of 2004 and the accused was arrested on 28-5-2004. He was produced before the Judicial Magistrate wherefrom he was remanded to judicial custody. After investigation, a charge-sheet was filed in the Court of Juvenile Board, Jabalpur on 7-6-2004 wherein the case was registered as Criminal Case No. 146 of 2004. The father of the petitioner applied for grant of bail before the Juvenile Board but the same stood rejected as per order dated 29-5-2004, Annexure P-2. The said order of rejection was assailed before the Court of Sessions in Cr. A. No. 228 of 2004 where similar fate was visited to the petitioner. Being dissatisfied, the petitioner preferred a criminal revision under Section 53 of the Act and this Court, vide order dated 26-8-2004, Annexure P-4, looking to the nature of allegations against the petitioner, declined to entertain the prayer for bail.
9. According to the writ petitioner, after filing of the challan by the Station House Officer, Police Station, Vijayraghogarh in the Court of Chief Judicial Magistrate, Jabalpur on 7-6-2004, the hearing of the case could not commence for the lack of constitution of the Juvenile Justice Board under Section 4 of the Act and the matter has been adjourned from time to time by the learned Trial Magistrate. It is canvassed that till date, the State Government has not constituted the Juvenile Justice Board at Jabalpur despite the mandatory provision, as a consequence of which the petitioner is languishing in jail. It is also put forth that the enquiry has to be completed within 4 months but as the same was not done, he was compelled to file second (sic) No. 1958 of 2004 for quashment of the proceedings pending in the (sic) led to filing of the present petition. It is highlighted in (sic) because of non- constitution of the Juvenile Board, there has been enormous delay in conducting of the trial and there is no likelihood of speedy trial. Therefore, the petitioner is entitled to quashment of the proceedings or in the alternative, to be set at liberty.
10. I have heard Mr. Vivek Rusia, learned Counsel for the petitioner and Mr. Dipak Awasthi, learned Deputy Government Advocate for the State. Before I proceed to deal with the controversy whether the criminal case should be quashed or the petitioner who claims to be juvenile should be kept at liberty, I may refer with profit at this juncture to a paragraph from the decision rendered in the case of Sheela Barse and Anr. v. Union of India and Ors., : [1986]3SCR562 , wherein it has been held as under :--
We made an order on 12th July, 1986 issuing various directions in regard to physically and mentally retarded children as also abandoned or destitute children who are lodged in various jails in the country for 'safe custody'. We also directed the Director General of Doordarshan as also the Director General of All India Radio to give publicity seeking co-operation of non- governmental social service organisations in the task of rehabilitation of these children. We were extremely pained and anguished that these children should be kept in jail instead of being properly looked after, given adequate medical treatment and imparted training in various skills which would make them independent and self-reliant. Some years ago we came out with a National Policy for the welfare of children which contained the following preambulatory declaration :--
The Nation's children are a supremely important asset. Their nurture and solicitude are our responsibility. Children's programmes should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skill and motivations needed by society. Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice.If a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality.
That is why all the statutes dealing with children provide that a child shall not be kept in jail. Even apart from this statutory prescription, it is elementary that a jail is hardly a place where a child should be kept. There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to (sic) influences, coarsening his conscience and alienating him (sic) It is a matter of regret that despite statutory (sic) frequent exhortations by social scientists, there are still large number of children in different jails in the country as is now evident from the reports of the survey made by the District Judges pursuant to our order dated 15th April, 1986. Even where children are accused of offences, they must not be kept in jails. It is no answer on the part of the State to say that it has not got enough number of remand homes or observation homes or other places where children can be kept and that is why they are lodged in jails. It is also no answer on the part of the State to urge that the ward in the jail where the children are kept is separate from the ward in which the other prisoners are detained. It is the atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging him from the society and breeding in him aversion bordering on hatred against a system which keeps him in jail. We would therefore like once again to impress upon the State Governments that they must set up necessary remand homes and observation homes where children accused of an offence can be lodged pending investigation and trial. On no account should the children be kept in jail and if a State Government has not got sufficient accommodation in its remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail.
11. While taking about child, the great poet Milton had said--
Childhood shows the man, as morning shows the day.' Richter had proclaimed thus :--
The clew of our destiny, wander where we will, lies at the foot of the cradle.Janes had spoken the collective philosophy in this manner :--
The interests of childhood and youth are the interests of mankind.Mrs. Stowe had the political philosophy in mind when she stated thus :--
Your little child is your only true democrat.St. Coleridge, a great English Poet expressed the view as under :--I have often thought what melancholy world this would be without children; and what an inhuman world, without the aged.
12. From the aforesaid, it is clear as crystal and plain as day that the children have a sacrosanct role in a nation. No state can ignore the need of the children. No parent can over- look their desire and their aspirations. A child born into the world is an epitome and embodiment of cosmic force. Not for nothing, it has been said 'the child is father of the man'. In this context, I may profitably refer to the decision rendered by the Apex Court in the case of M.C. Mehta v. State of Tamil Nadu and Ors., 1997 AIR SCW 407, wherein Their Lordships while speaking about child labour had begun their decision with following lines :--
I am the child.
All the world waits for my coming.
All the earth watches with interest to see
what I shall become.
Civilization hangs in the balance.
For what I am, the world of tomorrow
will be I am the child.
You hold in your hand my destiny.
You determine, largely, whether I shall
succeed for fail.
Give me, I pray you, these things that
make for happiness.
Train me, I beg you, that I may be a
blessing to the world.'
--Mamie Gene Cole
13. That being the importance of child, the Parliament, keeping in consonance with the Constitutional view engrafted under Articles 15 and 19 and Articles 45 and 47 and many international conventions has enacted the present Act. The children are required to be meted out justice as per law. Section 64 of the present Act has a different connotation and contour which I fruitfully reproduce :--
64. Juvenile in conflict with law undergoing sentence at commencement of this Act.-- In any area in which this Act is brought into force, the State Government or the local authority may direct that a juvenile in conflict with law who is undergoing any sentence of imprisonment at the commencement of this Act, shall, in lieu of undergoing such sentence, be sent to a special home or be kept in fit institution in such manner as the State Government or the local authority thinks fit for the remainder of the period of the sentence; and the provisions of this Act shall apply to the juvenile as if he had been ordered by the Board to be sent to such special home or institution or, as the case may be, ordered to be kept under protective care under Sub-section (2) of Section 16 of this Act.
14. In quintessence there is the need and there is the necessity for dispensation of justice in the speediest manner in the case of a juvenile. Learned Counsel would commend me to Section 14 of the Act for quashment of the proceedings. On a reading of the said provision, it is discernible that an enquiry has to be conducted by the Juvenile Board in accordance with the provisions of the Act and such order is to be passed in relation to juvenile as may be deemed proper. The Proviso postulates that the enquiry has to be completed within four months from the date of commencement unless the period is extended by the Board having regard to the circumstances of the case and in special cases after recording the reasons in writing for such extension. The provision is rigorous. It requires prompt action. The decision by the Board can not be in a routine manner. It can not be at leisure or pleasure. But the interpretation can not be placed on the said provision that if an enquiry is not conducted during the said period, the proceeding would be liable to be quashed or the juvenile would be entitled to be enlarged on bail.
15. The enquiry facilitates the trial. Every accused has a right to speedy trial. Procrastination of trial is not an acceptable phenomenon. Efforts have to be made to conclude the trial within a reasonable time frame, for delayed trial though may not always be unfair to the accused but all efforts are to be made to see that the trial is terminated as expeditiously as possible. In the case of Satyabrat Gain v. State of Bihar, : [2000]1SCR767 , Their Lordships have expressed the view that regard being had to the dilatory progress of the proceedings against the incarceration of the accused for further period could not be permitted. The prosecution has a sacrosanct duty to see that the trial are not lingered for unreasonable length of time. In the absence of any kind of justification, it is well settled in law that the right to speedy trial flows from Article 21 of the Constitution and the said Constitutional philosophy by no stretch of imagination can be marginalised. In the case of Mahendra Lal Das v. State of Bihar, : 2001CriLJ4718 , a Two Judge Bench of the Apex Court has unequivocally stated that the right to speedy trial encompasses all the stages namely stage of investigation, enquiry, trial, appeal, revision and retrial. Be it noted that Article 21 in its connotative expanse unmistakably involves the conception of fair trial but that does not necessarily mean the trite of the collective, the need of the society and the suffering of the victims or the family members and relatives should be allowed to melt into insignificance. The Apex Court has emphasised that in a criminal case, the fate of the proceedings can not always be left entirely in the hands of the parties; crimes are public wrongs, in breach and violation of public rights and duties which affect the whole community as a community and arc harmful to society in general. (See Zahira Habibulla H. Sheikh v. State of Gujarat, : 2004CriLJ2050 .
16. In the case at hand, there is delay in trial because there is no enquiry by the Board so far because of non-constitution of the Board under Section 4 of the Act. Section 4 of the Act casts a mandate on the State Government to constitute for a group of districts specified in the section, one or more Juvenile Justice Boards for exercising the powers and performing the duties conferred or imposed on such Boards in relation to juvenile in conflict with law under the Act. The said provision also postulates the manner of constitution. On a perusal of the order-sheet, it is plain as noon day that the Court below has been passing orders on numerous occasions that the matter could not approach as there is no constitution of the Juvenile Board.
17. The State has a duty as the law casts a mandate on it. The child was committed to an offence is seemly dealt with. There can not be any procrastination for constitution of the Board as defined under Section 2(c) of the Act. A juvenile who is deprived of the enquiry as mandated by the statute suffers from an indignity as he remains in constant hope to face an enquiry. It has been said no person should be treated as an unperson. Dignity of a juvenile can never be negotiable. The dignity of an individual is a manifestation of the dignity of the collective. In this context, I may profitably quote what Dr. Ambedkar once wrote :
The question is not whether a community lives or dies; the question is on what plane does it live... this is a gulf between merely living and living worthily. To fight in a battle and to live in glory is one mode; to beat retreat, to surrender and to live the life of a captive is also a mode of survival.
The non-constitution of the Board has affected the life of the petitioner. Though the prayer is for quashment of the proceedings or in the alternative to set the petitioner at liberty, I am only inclined to direct the State Government to constitute the Board. Inaction on this core is not only violative of the statutory function but in a way mars the constitutional philosophy. Ergo, I am disposed to direct the respondent State to constitute the Board as contemplated under Section 4 of the Act within a period of one month from receipt of the order passed today.