Prayer:- Criminal Original Petition filed under Section 407 Cr.P.C., to transfer the case in J.C.No. 74 of 2012 on the file of the Juvenile Justice Board, Chennai, to any other District Juvenile Board.
ORDER
1. Children are our national asset. It is, therefore, the responsibility of everyone to ensure the dignity, safety and wellbeing of the children. It is, all the more, of vital importance that the human rights of the children are fully protected. The Children who come into conflict with law emerge as law breakers due to factors like poverty, hunger, social discard, environmental influence in the educational institutions, lack of care by parents and so on. The society shall approach them with compassion to channelize them to the mainstream of the society. Providing fair enquiry (trial) to such juvenile in conflict with law itself is a fundamental right and in other words, a human right. Such children have a right to express their defence freely. Alleging that fair enquiry has not been provided, the petitioner / juvenile in conflict with law has come up with this original petition seeking for transfer of the proceedings from Juvenile Justice Board, Chennai.
2. The facts of the case would be as follows:-
(i) According to the final report submitted by the respondent, on 09.02.2012, at about 12.00 p.m., the juvenile in conflict with law (the petitioner herein), a student, caused the death of a teacher in the School by stabbing her with knife. Alleging that the said act of the petitioner is an offence punishable under Sections 302 and 506(ii) of I.P.C., the respondent has filed the final report before the Juvenile Justice Board, Chennai, on 17.05.2012. But, on that day, the Principal Magistrate of the said Board was on leave. Incidentally the designated Principal Magistrate of the said Board also happens to be the XII Metropolitan Magistrate, Chennai. The XX Metropolitan Magistrate was put in charge of the Court of XII Metropolitan Magistrate, Chennai during the leave of the regular XII Metropolitan Magistrate. The learned Metropolitan Magistrate, who was in charge of the Court of XII Metropolitan Magistrate, took cognizance of the above final report on 17.05.2012. The order of the learned Magistrate taking cognizance reads as follows:-
"Case taken on file under Sections 302 and 506 (ii) IPC. Issue summons to the juvenile in conflict with law on 23.05.2012".
(ii) On 23.05.2012 again the designated Principal Magistrate was on leave. The learned XX Metropolitan Magistrate, who was in charge of the Court of XII Metropolitan Magistrate, presided over the Juvenile Justice Board. The other two members were also present. On the same day, copies of the relevant documents under Section 207 of Cr.P.C. were supplied to the petitioner. Immediately thereafter, the learned Magistrate questioned the accused in respect of the accusation made against him. The petitioner denied the same. Then, the learned Magistrate ordered issuance of summons to the Witnesses 1 to 12 for their appearance on 28.05.2012.
(iii) Here it needs to be noted that on 23.05.2012, the petitioner was not represented by any Advocate and no legal aid was also provided to him. The records reveal that there were as many as 48 witnesses cited by the prosecution whose statements run to several pages besides around 100 documents. Though the learned Magistrate was not a designated Principal Magistrate of the Juvenile Justice Board of Chennai, the learned Magistrate was also under the mistaken impression that the procedure to be followed is a summary procedure, which is evident from the record, where, she has stated "since summary procedure questioned the juvenile. Juvenile denied the offence". Thereafter, on 28.05.2012, the petitioner appeared before the Board. On that day also, the designated Principal Magistrate was on leave.
(iv) Yet another shocking information furnished by the learned Public Prosecutor, on instructions from the Investigating Officer, is that on 23.05.2012 the petitioner was taken from the Juvenile Justice Board to the Court of XX Metropolitan Magistrate at Chennai. Admittedly, the Juvenile Justice Board functions in a Government building at Kelly's, Chennai, whereas, the Court of XX Metropolitan Magistrate is functioning in the Corporation Building, Chennai. The distance between these two places is around 3 km. On 23.05.2012, the proceeding was conducted in the Chambers of the XX Metropolitan Magistrate attached to the XX Metropolitan Magistrate Court at Ripon Buildings, Chennai. On 28.05.2012, again the petitioner was taken to the XX Metropolitan Magistrate Court premises, where, the Counsel engaged by his parents appeared by filing a memo of appearance for the juvenile. The Assistant Public Prosecutor was also present. The Board Members were also present. Six witnesses cited by the prosecution were present and all of them were examined. The counsel for the petitioner did not cross-examine for want of instructions. He filed a petition seeking to defer the cross-examination to a future date. That request was stoutly opposed by the learned Assistant Public Prosecutor. After having heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor, the learned Magistrate passed an order allowing the petition. Then, the case was adjourned to 29.05.2012 for the production of Witnesses 13 to 20.
(v) On 29.05.2012, the Non Judicial Board Members and the XX Metropolitan Magistrate assembled in the Chambers of the XX Metropolitan Magistrate at Chennai. The petitioner and his counsel were also present. P.Ws. 7 to 16 were examined by the prosecution, but, not cross-examined by the counsel for the petitioner. Then, for the examination of rest of the witnesses, the matter was adjourned to 30.05.2012. On 30.05.2012 also, the Non Judicial Board Members and the XX Metropolitan Magistrate assembled at the Chambers of the XX Metropolitan Magistrate Court at Chennai and P.Ws. 17 to 24 were examined and number of documents were marked. On that day also, cross-examination of the witnesses was not done. It was again adjourned to 31.05.2012. On that day, P.Ws. 25 to 27 were examined, but, not cross-examined by the defence. While so, on 30.05.2012, the petitioner approached this Court by filing the present Criminal Original Petition in Crl.O.P.No. 12953 of 2012, seeking transfer of the proceedings from the said Board to some other Board.
3. When this petition came up for hearing before the Vacation Court on 31.05.2012, a learned Judge of this Court (Mrs.Aruna Jagadeesan.J.) granted interim stay till the second week of June, 2012. Thereafter, the matter was periodically adjourned by the learned Magistrate. Now, the regular XII Metropolitan Magistrate has taken charge as the designated Principal Magistrate of the Juvenile Justice Board.
4. In this petition, the main contention of Mr.R.Shanmugasundaram, learned senior counsel for the petitioner is that the proceedings were not conducted strictly adhering to the Act and the Rules framed thereunder in as much as several provisions have been grossly violated and the enquiry was not fair. Thus, according to the petitioner, the trial has been conducted by denying fair opportunity to the petitioner, which is a part of the fundamental rights guaranteed under Article 21 of the Constitution of India. The learned senior counsel appearing for the petitioner has listed out all the flaws, irregularities and illegalities committed by the Board, in order to substantiate his contention that it would not be in the interest of justice to allow the enquiry to be further held by the very same Board.
5. Mr.S.Shanmugavelayudham, the learned Public Prosecutor for the State, made his submissions on behalf of the State. Considering the question of public importance involved in this case, this court had requested the senior counsel Mr.A.Raghunathan, and Mr.A.Ramesh to assist the court on the legal issues.
6. Let me now analyse the arguments advanced on either side.
7. The first and foremost contention of the learned Senior Counsel appearing for the petitioner is that the Juvenile Justice Board, Chennai, has not been duly constituted and there is no due designation of a Principal Magistrate as required under Section 4 of the Act. In order to appreciate the said argument, this Court directed the Registry of this Court to produce the relevant records pertaining to the Constitution of the Juvenile Justice Board, Chennai and also the appointment of members. A perusal of the said records produced, unfortunately, reveals that there has been no proper appointment of designated Principal Magistrate to the Board at all.
8. The Government has issued G.O.Ms.No. 74 Social Welfare and Nutritious Meal Programme (SW8) Department, dated 03.05.2012, constituting Juvenile Justice Board for Chennai. Paragraph No.3 of the said Government Order reads as follows.
"3. The Government have examined the proposal in detail. Under sub section (1) of Section (4) of Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 and sub-rule 1 of rule 3 and sub-rule 4 of rule 4 of the Tamil Nadu Juvenile Justice (Care and Protection of Children) Rules, 2001, the Government reconstitute the Juvenile Justice Board in Chennai District by appointing new Social Worker Members in the State of Tamil Nadu as detailed below:-
Place in which the Board is constituted
Names of the Chairperson and Members of the Board
Chennai
1. 12th Metropolitan Magistrate,
Chennai
- Chairperson
2. Tmt.Girija Kumarbabu,
AJ 147, Golden Aster,
9th Main Road,
Anna Nagar,
Chennai 600 040.
- Member
3. Selvi. R.Isabel,
9, Chinnameddupalayam,
3rd Road,
Thiruvottiyur,
Chennai 600 019.
- Member
9. In my considered opinion, this Government Order does not satisfy the legal requirements of Section 4 of the Act at all. Before proceeding further with our discussion, let us have a look into Section 4 of the said Act, which reads as follows:-
"4. Juvenile Justice Board.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government may, [within a period of one year from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, by notification in the Official Gazette, constitute for every district], one or more Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such Boards in relation to juveniles in conflict with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers of whom atleast one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974), on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as the Principal Magistrate.
(3) No Magistrate shall be appointed as a member of the Board unless he has special knowledge or training in child psychology or child welfare and no social worker shall be appointed as a member of the Board unless he has been actively involved in health, education, or welfare activities pertaining to children for atleast seven years.
(4) The term of office of the members of the Board and the manner in which such member may resign shall be such as may be prescribed.(5) The appointment of any member of the Board may be terminated after holding inquiry, by the State Government, if --
(i) he has been found guilty of misuse of power vested under this Act,
(ii) he has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence,
(iii) he fails to attend the proceedings of the Board for consecutive three months without any valid reason or he fails to attend less than three-fourth of the sittings in a year."
[Emphasis supplied]
10. A close reading of Section 4(1) of the Act would make it abundantly clear that a Juvenile Justice Board is a forum to be constituted by the Government by issuance of a notification in the Official Gazette which shall function at the particular notified place.
11. After constitution of the Board, it is the further duty of the Government to appoint the members of the said Board. As per Section 4(2) of the Act, the Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers, of whom, one shall be a woman and it is a Bench. The Magistrate shall be designated as the Principal Magistrate.
12. Now, let us see as to what are the qualifications for such a Magistrate. Section 4(3) of the said Act stipulates that no Magistrate shall be appointed as a member of the Board, unless, he has special knowledge or training in child psychology or child welfare. This clearly indicates that it is only an individual, who happens to be a Magistrate, who shall be appointed as Principal Magistrate of the Juvenile Justice Board. The Principal Magistrate of the Board is not an Ex-Officio Member on account of his being the Presiding Officer of a Court of Metropolitan Magistrate. So, while making appointment as Principal Magistrate of the Juvenile Justice Board, it is for the Government to examine as to, whether a particular individual Magistrate possesses the required qualifications such as special knowledge or training in child psychology or child welfare. For any reason, if a Magistrate, who has been appointed as a Principal Magistrate ceases to hold the office, then, a fresh appointment has to be made, thereby, appointing an individual Magistrate possessing qualifications as the Principal Magistrate. Thus, it is crystal clear that under sub-section (3) of Section 4 of the said Act, the term "Magistrate" does not refer to an Ex-Officio but to an individual Officer.
13. At this juncture, we may also refer to the relevant rules in The Juvenile Justice [Care and Protection of Children] Rules, 2007, governing the Constitution and Composition of Juvenile Justice Boards. Before having a look into the relevant rules, it would be worthwhile to notice as to why and how the Juvenile Justice [Care and Protection of Children] Rules, 2007 [hereinafter referred to as the Central Rules, 2007] came into being. Before the Juvenile Justice [Care and Protection of Children] Amendment Act, 2006 [Act 33 of 2006], under Section 68 of the Act, the State Government was empowered to make rules to carryout the purposes of this Act by means of a notification in the official gazette. There was no such rule making power to the Central Government as per Section 68 of the Act, as it stood prior to the amendment. But, many State Governments had not made rules in tune with Section 68 of the Act. Having noticed the same, the Parliament amended Section 68 of the Act by adding a proviso to the same [vide Central Act 33 of 2006]. The said proviso reads as follows:-
"Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed in respect of any such matter, they shall apply to the State until the rules in respect of that matter is made by the State Government and while making any such rules, so far as is practicable, they conform to such model rules."
Subsequently, the model rules were framed by the Central Government and brought into force with effect from 26.10.2007. So far as the State of Tamil Nadu is concerned, the State Government had already brought into force the rules, viz., The Tamil Nadu Juvenile Justice [Care and Protection] Rules, 2001 w.e.f. 14.02.2002. After the introduction of the Central model rules, the Govenrment of Tamil Nadu has amended its rules w.e.f. 22.03.2012. As we have already noticed, as per proviso to Section 68 of the Central Act, the Central model rules shall apply to a State until the rules in respect of that matter is framed by the State Government. From this , it is obvious that, if in respect of a particular matter under this Act the State Rule is silent, then, the Central model rules shall apply to the said matter. If the said rules govern a particular matter, then, to that extent the provisions of the Central model rule shall not apply to that State. With this background, if we look into the Tamil Nadu Rules, it could be found that there is no provision in the Tamil Nadu Rules governing the Constitution and Composition of Juvenile Justice Boards. Therefore, Rules 4 and 5 of the Central model rules which deal with the Constitution and Composition of Juvenile Justice Boards are applicable to the State of Tamil Nadu. The said rules read as follows:-
"4. Juvenile Justice Boards. -- There shall be one or more Juvenile Justice Boards in every district, which shall be constituted by the State Government as per Section 4 of the Act."
"5.Composition of the Juvenile Justice Board.-- (1) The Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers of whom at least one shall be a woman, forming a bench:
Provided that the Principal Magistrate of the Board shall review the pendency of cases before the Board and take such steps, as may be necessary in the expeditious disposal of the cases.
(2) Every such bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974).
(3)(i) A Magistrate with special knowledge or training in child psychology or child welfare shall be designated as the Principal Magistrate of the Board.
(ii) In case the Principal Magistrate with such special knowledge or training is not available, then, the State Government shall provide for such short-term training in child psychology or child welfare as it considers necessary.
(4) The two social workers, of whom at least one shall be a woman, shall be appointed by the State Government on the recommendation of the Selection Committee set up under rule 91 of these rules.
(5) The State Government shall provide for such training and orientation in child psychology, child welfare, child rights, national and international standards for juvenile justice to all members of the Board as it considers necessary, in accordance with the Integrated Child Protection Scheme of the Central Government".
14. A conjoint reading of Section 4 and Rules 4 and 5, would go a long way to show that the Board is a structure and the members are its components and irrespective of the fact that there are no members, the Board will survive. But, if there is no Board, the office of members will not survive as the term of office of the members is co-terminus with the Board [vide Rule 21]. In the case on hand, so far as the Juvenile Justice Board, Chennai, is concerned, it was constituted by the Government by issuing an appropriate notification. But, while making appointment of members to the Board, the Government has erred. Of course, the appointment of two Non-Judicial Members, viz., Mrs.Girija Kumarbabu and Selvi. R.Isabel, the appointment cannot be found fault with. So far the designation of Principal Magistrate is concerned, there is no valid appointment. The Government Order, as I have already referred to states that the Chairperson of the Board shall be the XII Metropolitan Magistrate, Chennai. First of all, there is no post of Chair Person at all provided in the Act. There is only a Principal Magistrate to be designated by the Government. Assuming that the nomenclature used in the Government Order is only an error, even then, the Government Order will not satisfy the above specific provision of the Act and the Rules. For any reason, if the Magistrate presiding over the XII Metropolitan Magistrate Court, does not possess required qualification as provided in sub-section (3) of Section 4 the Act, then certainly, he cannot act as the Principal Magistrate. In the case on hand, probably, the XX Metropolitan Magistrate thought it fit to act as the Principal Magistrate, because, she was in charge of the XII Metropolitan Magistrate Court, Chennai. This confusion would not have surfaced at all, provided the appointment has been made validly by designating a Metropolitan Magistrate who possesses the required qualification as the Principal Magistrate.
15. Incidentally, I have occasion to go through the Government Orders regarding Constitution of Juvenile Justice Boards and the appointment of members in all the Districts, throughout the State. To my surprise, I find that the very same error has occurred in the appointment of Principal Magistrates to each and every Juvenile Justice Board in the State. I only do hope that the Government and the High Court will take appropriate steps forthwith to obviate the said error and appoint qualified Magistrates as Principal Magistrates of the Juvenile Justice Boards through out the State.
16. Nextly, assuming that the learned XII Metropolitan Magistrate, Chennai can function as the designated Principal Magistrate of the Juvenile Justice Board, even then, it was not appropriate or legal for the XX Metropolitan Magistrate to act as the Principal Magistrate of the Juvenile Justice Board. Admittedly, the XX Metropolitan Magistrate has not been appointed as the Principal Magistrate of the Board, Chennai. She was put in charge of only the court of XII Metropolitan Magistrate, Chennai. That means, she was authorised to discharge the functions only of the XII Metropolitan Magistrate. In other words, she was empowered only to discharge the magisterial functions of the XII Metropolitan Magistrate and she was never empowered to act as the Principal Magistrate of the Juvenile Justice Board. Thus, the entire proceedings viz., taking cognizance, questioning the juvenile accused in respect of the accusations and the examination of the witnesses are all wholly without jurisdiction.
17. The learned Public Prosecutor, after having noticed the above anomalies, would fairly concede that the entire proceedings, commencing from the order taking cognizance till the end, which was conducted by the Board presided over by XX Metropolitan Magistrate, Chennai, is wholly without jurisdiction. The learned Public Prosecutor would further suggest to this court that this court may quash the proceedings of the Juvenile Justice Board commencing from 17.05.2012 till date, including the evidences recorded and direct the duly constituted Juvenile Justice Board to consider the police report and proceed with the enquiry in accordance with the Act and the Rules. The said fair submission made by the learned Public Prosecutor is recorded with appreciation.
18. Nextly, the learned senior counsel for the petitioner would contend that the procedure adopted viz., summary procedure adopted by the Juvenile Justice Board is illegal. In order to appreciate this contention, we may refer to Rule 8A of the The Tamil Nadu Juvenile Justice [Care and Protection of Children] Rules, 2001 which speaks of procedure to be followed by the Juvenile Justice Board. Sub-rule (3) of Rule 8A, while stressing the need for fair and speedy enquiry, provides as follows:-
8-A. Post-production processes by the Board. -
(1) .........(2) .........
(3) The Board shall take the following steps to ensure fair and speedy inquiry, namely:-
(a) at the time of initiating the inquiry, the Board shall satisfy itself that the juvenile in conflict with law has not been subjected to any ill-treatment by the police or by any other person, and in this regard such event where the Board considers that there is an ill-treatment, inform the Government;
(b) in all cases under the Act the proceedings shall be conducted in a simple and child friendly manner;
(c) every juvenile brought before the Board shall be given the opportunity to be heard and participate in his inquiry;
(d) cases of petty offences, may be disposed by the Board through summary proceedings or inquiry;
(e) even in cases of inquiry pertaining to serious offences the Board shall follow the procedure of trial in summons cases."
19. As we have seen above, if the enquiry pertains to serious offences, the Juvenile Justice Board shall follow the procedure for trial of summons cases. Indisputably, in the case on hand, the offence said to have been committed by the petitioner is murder, which is a serious offence. But, the learned Magistrate recorded that she had followed only the "summary procedure". Undoubtedly, the said procedure followed by the learned Magistrate is illegal.
20. The Juvenile Justice Board committed yet another serious illegality in not affording fair enquiry to the petitioner which is a fundamental right guaranteed under Article 21 of the Constitution of India. The rule referred to above insists that Juvenile Justice Board shall ensure fair and speedy enquiry. Rule 8-A (3)(c) of the Tamil Nadu Rules states that every juvenile brought before the court shall be given the opportunity to be heard and participate in the enquiry. It does not mean that such opportunity is an empty formality as it has been done in the instant case. The opportunity of hearing as well as the participation of the juvenile in the enquiry should be real and effective, so as to afford fair enquiry to the juvenile in conflict with law.
21. But, in this case, as I have already narrated, the documents were furnished to the petitioner under Section 207 of Cr.P.C. on 23.05.2012 and on the same day, he was questioned in respect of the substance of the accusations. This, in my considered opinion, is not in consonance with the fair trial to be afforded to him. Admittedly, 48 witnesses have been cited by the prosecution and roughly about 95 documents have been furnished to the petitioner. It is really surprising that the Board was satisfied with granting of a few minutes or even a few hours time on the same day as soon as furnishing the copies under Section 207 of Cr.P.C. would have been sufficient for the petitioner to go through the voluminous documents and statements of 48 witnesses and then to make his plea in respect of the accusations. This only goes to show that the Juvenile Justice Board, without having concern for fair procedure which is to be afforded to juvenile in conflict with law was in a hurry to close the matter some how or the other.
22. It is also seen from the records, as it has been pointed out by the learned senior counsel for the petitioner, that on the succeeding days, a number of witnesses were examined and none was cross examined by the counsel for the petitioner. According to him, the reason is that the counsel for the petitioner was not given sufficient time to go through the records and to get instructions from the petitioner to effectively discharge his functions as a defence counsel. I find every justification in the said submission of the learned senior counsel for the petitioner.
23. Yet another serious illegality committed by the Juvenile Justice Board is that the sitting of the Juvenile Justice Board was held in the chamber of the XX Metropolitan Magistrate, situated in Ripon Buildings at Chennai. As per sub-rules (1) and (2) of Rule 9 of the Juvenile Justice [Care and Protection of Children] Rules , 2007, the sitting of the Juvenile Justice Board shall be child friendly and shall not look like a court room. The said provision totally prohibits the sitting of the Juvenile Justice Board in the court premises. Sub Rules (1) and (2) of Rule 9 read as follows:-
9. Sittings of the Board.- (1) The Board shall hold its sittings in the premises of an Observation Home or, at a place in proximity to the observation home or, at a suitable premise in any institution run under the Act, and in no circumstances shall the Board operate from within any court premises.
(2) The premises where the Board holds its sittings shall be child-friendly and shall not look like a court room in any manner whatsoever; for example, the Board shall not sit on a raised platform and the sitting arrangement shall be uniform, and there shall be no witness boxes.
(3) ............(4) ............
(5) ............"
[Emphasis supplied]
24. The object of the said rule is to provide child friendly atmosphere for the juvenile so that without any fear he can participate in the enquiry. Further, the object is only to rehabilitate the juvenile and not to punish him for the offence committed by him. Rule 7 of the Tamil Nadu Rules states that the Board shall hold its sitting in the premises of the Observation Home or at any place as may be specified by the State Government in this behalf. So far as Juvenile Justice Board, Chennai is concerned, the specified place of sitting is in a Government building at Kelly's, Chennai, which is not in a court premises. But, curiously, the entire proceeding in this case was conducted by the Juvenile Justice Board only in the chamber of the learned XX Metropolitan Magistrate, Ripon Buildings, Chennai. The learned Public Prosecutor would, on instructions from the investigating officer, who is present in Court, would also admit that the proceedings were conducted only in the chamber of the XX Metropolitan Magistrate. Thus, the proceedings conducted in the Chamber of the XX Metropolitan Magistrate cannot be stated to be child friendly. The Juvenile Justice Board ought not to have held its sitting in the Magistrate Court premises at all. When the rule mandates that the place where the proceedings is conducted shall not look like a court room in any manner, it is unfortunate that the entire proceedings were conducted in the court premises itself. This is yet another illegality committed by the Juvenile Justice Board.
25. Nextly, the learned senior counsel for the petitioner would submit that the investigating officer in this case was not a juvenile police. The term Special Juvenile Police Unit has been defined in Sub-section (w) of Section 2 of the Act as follows:-
"(w). 'special juvenile police unit' means a unit of the police force of a State designated for handling of juveniles or children under section 63;
Section 63 of Act is as follows:-
"63. Special juvenile police unit.- (1) In order to enable the police officers who frequently or exclusively deal with juveniles or are primarily engaged in the prevention of juvenile crime or handling of the juveniles or children under this Act to perform their functions more effectively, they shall be specially instructed and trained.
(2) In every police station at least one officer with aptitude and appropriate training and orientation may be designated as the "juvenile or the child welfare officer" who will handle the juvenile or the child in co-ordination with the police.
(3) Special juvenile police unit, of which all police officers designated as above, to handle juveniles or children will be members, may be created in every district and city to co-ordinate and to upgrade the police treatment of the juveniles and the children."
26. As per Section 10 of the Act and Rule 95 of The Tamil Nadu Juvenile Justice [Care and Protection of Children] Rules, 2001, as soon as the juvenile is apprehended by any police, he shall be placed under the charge of the special juvenile police unit or designated police officer. Thereafter, it is for the juvenile police to take care of the juvenile and also to investigate the matter. But, in this case, the petitioner was not taken charge by the special juvenile police or designated police officer at all. In this regard we may usefully refer to the judgements in Pratap Singh v. State of Jharkhand and another, (2005) 3 SCC 551; Hari Ram v.State of Rajasthan and another, (2009) 13 SCC 211; Bachpan Bachao Andolan v. Union of India, (2010) 12 SCC 180; and Sampurna Behura v. Union of India and others, (2011) 9 SCC 801 wherein the Hon'ble Supreme Court has issued a direction for constitution of a special juvenile police unit forthwith in each district. The learned Public Prosecutor would submit that in every district in the State child welfare officer has been nominated for each police station and the special juvenile police unit has also been constituted at the district level. According to him, the Deputy Superintendent of Police, Crime Record Bureau of every district has been nominated as special juvenile police unit. The learned Public Prosecutor would further contend that the above Rule 95 was substantially complied with in this case. Going by the limited scope of this petition, I do not want to enlarge the discussion on this aspect any more.
27. Lastly, the learned senior counsel for the petitioner would submit that one Assistant Public Prosecutor has been nominated by the Director of Prosecution to conduct the prosecution before the Juvenile Justice Board. I have doubt about the correctness of the said procedure being followed in the Juvenile Justice Board. As we have already noticed, every one who is involved in the process should be child friendly and should have had special knowledge or training in child psychology and child welfare. The prosecuting officer who conducts the prosecution before the Juvenile Justice Board can be no exception to this general rule. He should also be an officer, who is child friendly having special knowledge or training in child psychology. It is not informed to this court that the Assistant Public Prosecutor who conducts the prosecution before the Juvenile Justice Board is such an officer, who has got the above basic qualifications.
28. At this juncture, we may also refer to Section 25 of Cr.P.C. which deals with the Assistant Public Prosecutors. According to the said provision, the State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting the prosecutions in the courts of Magistrates. Therefore, no Assistant Public Prosecutor can be appointed under Section 25 of Cr.P.C. for the purpose of conducting the prosecution before the Juvenile Justice Board since the Board cannot be equated to a Court of Magistrate. However, I find, the Act as well as the Rules are silent as to who should be appointed as prosecuting officer for a Juvenile Justice Board. In my considered opinion, prosecuting officer before the Juvenile Justice Board should be a special public prosecutor to be appointed under Section 24 (8) of Cr.P.C. Section 24(8) of Cr.P.C. empowers the State Government to appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. In addition to the said qualification, the person to be appointed as Special Public Prosecutor for the Juvenile Justice Board may be a person having special knowledge or skill in child psychology or child welfare. In my considered view, such persons need to be appointed by Government to conduct the prosecution before the Juvenile Justice Boards.
29. In view of the foregoing discussions, I have to necessarily hold that the proceedings conducted by the Juvenile Justice Board including the XX Metropolitan Magistrate who is not a designated Principal Magistrate is illegal and the same cannot be sustained. The learned Public Prosecutor has shown his fairness in his submission that the proceeding requires to be quashed and the matter needs to be remitted to the Juvenile Justice Board for holding fresh enquiry by a validly constituted Juvenile Justice Board at Chennai. Though this petition has been filed only to transfer the proceedings, having noticed the irregularities and illegalities referred to above, this court cannot refrain itself without invoking its inherent power under Section 482 of Cr.P.C. to quash the proceedings commencing from 17.05.2012. In such view of the matter, the question of transferring the proceeding to some other Juvenile Justice Board does not arise.
30. In the result, the criminal original petition is disposed of in the following terms:-
1. The proceedings of the Juvenile Justice Board, Chennai commencing from 17.05.2012 till 31.05.2012 is quashed.
2. The evidences recorded so far by the Juvenile Justice Board shall stand erased.
3. The Government of Tamil Nadu in consultation with the High Court shall as soon as possible appoint a qualified Judicial Magistrate as the Principal Magistrate of the Juvenile Justice Board, Chennai.
4. The final report submitted by the respondent shall be considered and further proceeding shall be conducted by such a validly constituted Bench of Juvenile Justice Board, Chennai.
5. With a view to maintain secrecy of the identity of the petitioner, it is directed that the law journals, press and media shall refer to the name of the petitioner as "Idukkan" and not his real name, making a mention that name has been changed [including in the cause title].
6. Consequently, connected M.P.No.1 of 2012 is closed.
31. Before parting with this case, I place on record the services rendered by Mr.S.Shanmugavelayudham, the learned Public Prosecutor for the State assisted by Mr.M.Maharaja, the learned Additional Public Prosecutor, and also the Senior Advocates Mr.A.Raghunathan and Mr.A.Ramesh.