1. The petitioner's son, Venkat alias Venkatesan aged, according to him, about 16 years, has been detained under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14 of 1982) (hereinafter referred to as the Act) under the orders of the Commissioner of Police, Madras City, dated 19-8-1993. He has been so detained, for according to the respondents, it has become necessary to detain him under S. 3(1) of the Act with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. He has, as has been noticed in the memorandum of grounds that has been served upon him on 19-8-1993, a history of having been involved in a case of murder, which is pending trial in C.C. No. 4726 of 1993 (H-5 New Washermanpet P.S. Crime No. 730 of 1993) allegedly committed on 20-5-1993 at about 6-15 hours at V.O.C. Nagar, 60th Block Madras, in which, it is said, he along with his associates, formed an unlawful assembly, which armed itself with deadly weapons and wrongfully restrained one Tr. Sundar, chased and inflicted on him cut injuries indiscriminately that Sundar was admitted in the hospital, where he died, it is said, on account of injuries. In another case, in C.C. No. 4620 of 1993 (H-5 New Washermanpet police station) Crime No. 733/93)) he is charged with indulging in unlawful activities of constituting an unlawful assembly with others, mischief and criminal intimidation to one Tr. Mohammed Musthafa, who is running a shop at No. 3, T.H. Road, Tollgate, Madras, opposite to Haris Hotel. This offence is alleged to have been committed on 20-5-1993 at about 16.00 Hours. The third case is, still said to be under investigation, registered as Cr. No. 737/93 on the file of H-5 New Washermanpet Police Station) in respect of offences alleged to have been committed at about 7.30 p.m. on 22-5-1993 in which, he (petitioner's son) along with his associates, wrongfully restrained one Raji and assaulted him with knife and caused bleeding injuries to him. 2. Preceding the detention order, petitioner's son, along with his associates, is stated to have demanded donations for some temple function from one Umapathy on 12-8-1993 at about 5.00 p.m. who was at his work spot in his black smithy (Pattarai). Umapathy, it is said, offered Rs. 20/- but the petitioner's son and his friends refused to accept anything less than Rs. 500/-. Immediately, Tr. Rajendran and other by uttering left the spot. Tr. Umapathy, after attending to his work, left with his wife to a nearby Cinema theatre. After witnessing the cinema and while returning at about 1.15 hours on 12/13-8-1993 at the junction of Veerakutty Street and Mayar Basu Dev Street, petitioner's son and his associates, who were standing there, way laid Umapathy. Immediately, an associate by name Rajendran, by uttering rushed to cut him on his head with a knife. Umapathy warded off the attack with his left hand. However, the knife fell on his left hand and caused a bleeding injury. Ezhilarasi tried to save her husband Umapathy. Immediately, Venkatesan by uttering rushed to cut her. She warded off the attack with her left hand. However, she also sustained an injury on her left hand. Mohan by uttering instigated Martin to hit her. Immediately Martin hit Ezhilarasi on her head. Ezhilarasi bent on her back and the knife caused an injury on her left eye brow. The public, who were fetching water nearby, noticed the atrocious activities. The petitioner's son and his associates terrorised everyone by saying at the point of knife and kicked the vessels kept for taking water. The public ran for safer places out of fear for their lives. The public, who were returning after witnessing the cinema as well as those sleeping on the roadside, also ran to safer places. The petitioner's son and his associates created terror and panic at the spot and a huge crowd gathered in that area. A tense situation was created and taking advantage of that, petitioner's son and others left the spot.
3. Umapathy lodged a report with H. 3 Tondiarpet police station and produced the blood stained clothes. The case was taken up for investigation and Umapathy and his wife sent to the Government Hospital for treatment. The police seized the blood stained clothes, visited the spot, examined witnesses and recorded their statements. Petitioner's son was arrested on 13-8-1993 in connection with this case at 17.30 hours, it is said, at the junction of Bala Arunachala Chetty Street and G.A. Road, Tondiarpet and when interrogated by the police, he made a confessional statement. On his confession, the police recovered the knife allegedly used by him in the crime. While he was in remand, however, the order of detention has been issued, as, according to the Detaining Authority, he was likely to come out on bail and it was necessary to detain him to prevent him from indulging in further activities, which would be prejudicial to the maintenance of public order.
4. Since, in this proceeding before us, a question has been raised that on the grounds, as above, keeping a juvenile under detention, is illegal, we decided first to satisfy ourselves whether, the petitioner's son is a juvenile and entitled to care, protection, treatment, development and rehabilitation as a delinquent juvenile under the Juvenile Justice Act, 1986, or, not and accordingly, directed for the production of the Detenu before us and got him medically examined by the police surgeon and Professor of Forensic Medicine, Madras Medical College. He (The Surgeon) has taken notice of the various anatomical parts and conditions and features of the petitioner's son and recorded his opinion as follows :
-------------------------------------------------------------------------- Na me of anatomical parts Condition of Normal age of epiphysis fusion ---------------------- ---------------------------------------------------- 1. Head of Humerus Fused 14-17
2. Lower end of Humerus -
(a) Lateral epicrodyle Fused 13-14 (b) Medial epicandyle Fused 14-17
3. Head of Radius Fused 14-17
4. Oletranon - 14-16
5. Lower end of Ulna and Radius Fused 14-18
6. Piciform bone - 10-12
7. First Metacarpel Fused 14-17
8. Phalanges of hand Fused 14-17
9. Crest of Illeum Appeared, not fused 14-18
10. Head of Femur Fused 14-15
11. Creater Trochanter Fused 14-17
12. Lower end of femur Fused 14-17
13. Upper end of Tibia and Fibula Fused 14-17
14. Lower end of the Tibia and Fibula Fused 14-17
15. Calcaneous - 14-17
16. Medial end of the Clavicle Not fused 20-00
17. Arcomion - 18-00
18. Rami of the pubis and Ischlum Unite Fus ed 6th year
19. Triradiate cartilage of acetabulum fuses Fused 15th year
20. Aticular facets of ribs unite - 25th year ---------- ----------------------------------------------------------------
He has, on the above basis, opined that the age of the petitioner's son is about 17 years, but below 20 years. Learned Counsel for the petitioner has, however, contended that anatomical determinations based on fusion at a particular normal age condition, is not a rigid determinate of the age of any being and a margin of two years on either side is always preferred by the Courts. He has submitted that as per the norms, as above, variables petitioner's son should be above 14 years, but below 17 years of age. This report, according to the learned counsel for the petitioner, fully corroborates the case of the petitioner that his son, who has been detained by the respondents, is of about 16 years of age, standing just at the margin of the majority, but still a juvenile, who has not attained the age of 16 years, at the time of the commission of the alleged offences by him. Learned Additional Public Prosecutor, Mr. I. Subramaniam, in the first instance and learned Public Prosecutor, Sri Sriramulu after him, have not raised any serious objection to the above contention of the learned counsel for the petitioner, but have submitted that the age below 16 years of a male or below 18 years of a female, to treat them under the Juvenile Justice Act, 1986 (Act 53 of 1986), would/will cause no effect upon the powers of the Competent Authority to detain a Goonda, when he/she is engaged in or making preparation for engaging in any of his/her activities as a goonda, which affect adversely or are likely to affect adversely the maintenance of public order. Learned counsel for the petitioner, however, has contested this view mainly on the ground that any notice of a juvenile delinquency, which otherwise is punishable under Chapter 16 or Chapter 17 or Chapter 22 of the Indian Penal Code, will negate the very effect and purpose of the Juvenile Justice Act and obliterate altogether the distinction between the Juvenile offender and an adult offender.
5. In the Statement of object and reasons of the special enactment to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to and disposition of delinquent juveniles, it is said, 'the justice system as available for adults is not considered suitable for being applied to a juvenile ..... 'There is also need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles' and in this context, 'the proposed legislation aims at achieving the following objectives :
'(i) to lay down a uniform legal framework for juvenile justice in the Country so as to ensure that no child under any circumstances is lodged in jail or police lock-up. This is being ensured by establishing Juvenile welfare Boards and 'Juvenile Courts :
(ii) to provide for a specialised approach towards the prevention and treatment of juvenile delinquency in its full range in keeping with the development needs of the child found in any situation of social maladjustment;
(iii) to spell out the machinery and infrastructure required for the care, protection, treatment, development and rehabilitation of various categories of children coming within the purview of the juvenile justice system. This is proposed to be achieved by establishing observation homes, juvenile homes for neglected juveniles and special homes for delinquent-juveniles;
(iv) to establish norms and standards for the administration of juvenile justice in terms of investigation and prosecution, adjudication and disposition, and care, treatment and rehabilitation;
(v) to develop appropriate linkages and coordination between the formal system of juvenile justice and voluntary agencies engaged in the welfare of neglected or socially mal-adjusted children and to specifically define the areas of their responsibilities and roles;
(vi) to constitute special offences in relation to juveniles and provide for punishments therefore;
(vii) to bring the operation of the juvenile justice system in the country in conformity with the United Nations Standard Minimum Rule for the Administration of Juvenile Justice.
With the reason, as above and such objects in mind, the Act has proceeded to define, besides other things, who a juvenile is, who a delinquent juvenile is, who a neglected juvenile is, and made a provision in S. 3 thereof that where an enquiry has been initiated against a juvenile and during the course of such enquiry, the juvenile ceases to be such, then notwithstanding anything contained in the Act or in any other law for the time being in force, inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile. The Act has contemplated the juvenile Welfare Board and Juvenile Courts for specific purposes and has incorporated a clear pronouncement in S. 7 thereof that where a Board or a Juvenile Court has been constituted for any area, such Board or Court, shall, notwithstanding anything contained in any other law for the time being in force, but save as otherwise expressly provided in the Act have power to deal exclusively with all proceedings under the Act relating to neglected juveniles or delinquent juveniles, as the case may be and where no Board of Juvenile court has been constituted for any area, the powers conferred on the Board or the Juvenile Court by or under the Act shall be exercised in that area, only by (a) the District Magistrate, or (b) the Sub-Divisional Magistrate, or (c) any Metropolitan Magistrate or Judicial Magistrate of the first class, as the case may be. Under sub-section (3) of S. 7, the powers conferred on the Board of Juvenile Court by or under the 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.
6. It is, in this context, that special and separate procedures have been prescribed under the Act for neglected juveniles and delinquent juveniles. Under S. 21 of the Act, orders that may be passed regarding delinquent juveniles are specified under S. 22 orders that may not be passed against delinquent juveniles are specified.
"21(1) Where a Juvenile Court is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Juvenile Court may, if it so thinks fit, -
(a) allow the juvenile to go home after advice or admonition;
(b) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, or such parent, guardian, or other fit person executing a bond, with or without surety, as that Court may require, for the good behaviour and well being of the juvenile for any period not exceeding three years;
(c) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour, and well being of the juvenile for any period not exceeding three years;
(d) make an order directing the juvenile to be sent to a special home, -
(i) in the case of a boy over fourteen years of age or of a girl over sixteen years of age, for a period of not less than three years;
(ii) in the case of any other juvenile, for the period until he ceases to be a juvenile :
Provided that the Juvenile Court may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit;
Provided further that the Juvenile Court may, for reasons to be recorded, extend the period of such stay, but in no case the period of stay shall extend beyond the time when the juvenile attains the age of eighteen years, in the case of a boy, or twenty years, in the case of a girl;
(e) Order the juvenile to pay a fine if he is over fourteen years of age and earns money.
(2) Where an order under Clause (b), Clause (c) or Clause (e) of sub-section (1) is made, the Juvenile Court may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the delinquent juvenile shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years, as may be specified therein, and may, in such supervision order impose such conditions as it deems necessary for the due supervision of the delinquent juvenile."
The orders that may not be passed against delinquent juvenile, are :
"Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent juvenile shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security :
However, under the proviso to sub-section (1) of S. 22, it is stated that 'where a juvenile who has attained the age of fourteen years, has committed an offence and the Juvenile Court is satisfied that the offence committed is of so serious a nature or that the conduct and behaviour have been such that it would not be in his interest or in the interest of other juveniles in a special home to send him to such special home and that none of the other measures provided under the Act is suitable or sufficient, the Juvenile Court, may order the delinquent juvenile to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the State Government.' Under sub-section (2) thereof, on receipt of a report from a Juvenile Court under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such delinquent juvenile to be detained at such place and on which conditions as it thinks fit, provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been sentenced for the offence committed. It is provided, in particular, in S. 23 of the Act that no proceeding shall be instituted and no order shall be passed against a juvenile under Chapter VIII of the Code of Criminal Procedure, 1973 and under S. 24, no juvenile shall be charged with or tried for any offence together with a person, who is not a juvenile and under sub-section (2) thereof, if such a juvenile and a person not a juvenile would, but for the prohibition contained in sub-section (1) have been charged and tried together, the Court taking cognizance of that offence, shall direct separate trials of the juvenile and the other person.
7. There is yet another significant provision in S. 25 of the Act, which reads as follows :
'25. Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act, shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.'
It is significant that Chapter VIII of the Code of Criminal Procedure, 1973, contains such provisions, which relate to security for keeping the peace on conviction and in other cases, including the security for good behaviour from persons disseminating seditious matters and security for good behaviour from habitual offenders (Ss. 106 to 124).
8. In the case of Krishna Bhagwan v. State (FB)), a Full Bench of the Patna High Court, to which one of us was a member (P. S. Mishra, J.) has dealt with in particular the role which S. 26 read with S. 63 of the Juvenile Justice Act plays in a case, where a trial has been pending on the date on which the Juvenile Justice Act came into force as well as the provisions of the Bihar Children Act (Act 54 of 1982) and has, in that context, stated as follows (at pp. 225, 226 of AIR) :
"Ss. 3 and 56 of the Juvenile Act are the corresponding provisions to Sections 3 and 52 of the Children Act. In view of S. 3 where an inquiry has been initiated against a child/juvenile and during the course of such inquiry the child/juvenile ceases to be such, the inquiry has to be continued and orders have to be made in respect of such person as if such person had continued to be a child/juvenile. Similarly, Sections 52 and 56 give benefit of the provisions of the Acts even to an accused who has already been convicted and is undergoing sentence of imprisonment at the commencement of the Act.
S. 3 says in clear and unmistakable words that even if such an accused has ceased to be child/juvenile, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile. Similarly, Sections 52 and 56 when extend benefit to a convicted accused who is undergoing sentence of imprisonment on the dates the two acts came in force it can be presumed that the framers of the Acts must be conscious of the fact that after undergoing the trial and the imprisonment for some period in many cases such accused must have ceased to be a child-juvenile. The legislature has introduced a deeming fiction in S. 3 and it requires the Courts to treat the accused as a child-juvenile although during enquiry he has ceased to be such. The effect of a deeming clause need not be dealt with, in detail, because it has been repeatedly pointed out by Courts that if the legislature requires to imagine certain state of affairs although actually such state of affairs do not exist, the Courts have not only to imagine the existence thereof, but follow up the consequences thereof as well. In this connection, reference may be made to the oft-quoted view of Lord Asquith in the case of East End Dwellings Company Ltd. v. Finsbury Burough Council (1982) AC 109.
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs, had in fact existed, must inevitably have flowed from or accompanied it, ........ the statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
The same view has been expressed by the Supreme Court in several cases and reference can be made to one of the earlier judgments in the case of State of Bombay v. Pandurang Vinayak, . Where it was observed :
"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion."
It is this context and with the understanding as above, the Patna Full Bench, has taken notice of the judgment of the Supreme Court in the case of Sheela Barse v. Union of India and has quoted the passage, as follows (at p. 226 of AIR) :-
'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 the 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 baneful influences, coarsening his conscience and alienating him from the society."
"Really speaking, the trial of children must take place in the Juvenile Courts and not in the regular Criminal Courts there are special provisions enacted in various statutes relating to children providing for trial by Juvenile Courts in accordance with a special procedure intended to safeguard the interest and welfare of children." After taking note of the above, the Full Bench has said (at pp. 226, 227 of AIR) :-
"In my view, the Children Act, as well as the Juvenile Act, treat the delinquent children/juveniles as a special class and provide special procedure for enquiry in respect of charges levelled against them. Even if those charges are established, a very liberal approach has been provided in respect of punishment for such offences. Different sections put a strict bar on the child/juvenile being sent to jail custody either before an enquiry or after the conclusion of the enquiry in respect of the offence alleged or proved to have been committed. Even if such a child has committed a murder or a rape, in view of S. 22, neither he can be sentenced to death nor to imprisonment. It is true that in many cases, the offences committed by such delinquent children may be shocking to the conscience and their conduct and behaviour may be adhoring, but S. 22 is quite conscious of such situations. Still, it provides for keeping the delinquent child-juvenile accused of such serious offences in safe custody at a place ordered by the State Government. This benefit has to be extended not only to an accused, who is a child/juvenile at the time of the commencement of the enquiry and has continued as such till the conclusion of the enquiry, but even to an accused who has ceased to be a child/juvenile during the tendency of the enquiry. The same view has been taken by a Full Bench of Calcutta High Court in the case of Dilip Saha v. State of West Bengal, AIR 1978 Cal 529 : (1979 Cri LJ 88) in connection with S. 3 of the W.B. Children Act, 1959."
9. In a separate, but concurring judgment it has been pointed out in the said Full Bench judgment by one of us (P. S. Mishra, J.) as follows (at p. 232 of AIR) :-
"Social mal adjustments and economic constrains which caused neglect of and delinquency in children needed a justice system exclusive for them. Justice system as available for adults, was not suitable for juveniles."
and observed as follows (at pp. 233, 234 of AIR) :-
"Children Acts of different States of the country including Bihar, however, needed to provide for a specialised approached towards the prevention and treatment of juvenile delinquency in its full range in keeping with developmental needs of the child found in any situation of social mal adjustment. A glance to the provisions of the Juvenile Justice Act shows that a juvenile's case has to be handled by the police at the first instance and the Courts on production of the child before it in a manner that he is not allowed to be in the company of the delinquent adults and no sooner he is found involved in any crime, step is taken to separate his case from the case of the adult criminals. S. 18 of the Juvenile Justice Act enjoins the police to release with or without surety any person accused of a bailable or non-bailable offence, if he is apparently a juvenile and if there appear reasonable grounds for believing that the release is likely to bring him into the association of any known criminal or put him to moral danger or that his release would defeat the ends of justice to take him to the Juvenile Court.
"23. The Court then is enjoined from committing the juvenile child to a proceeding. The Court has to make an order sending him to an observation home or a place of safety for such period during the pendency of the enquiry regarding him specifying so in the order. Where a juvenile is arrested, the officer in charge of the police station to which the juvenile is brought, has a duty to inform the parent or guardian of the juvenile, if he can be found on such arrest and direct him to be present at the Juvenile Court at which the juvenile would appear. The officer in charge of the Probation Officer of such arrest, in order to enable him to obtain information regarding the antecedents and family history of the juvenile and other material circumstances likely to be of assistance to the Juvenile Court for making the enquiry. If this duty enshrined in S. 19 of the Act, to inform the parent or guardian of the juvenile and the Probation Officer, is performed by the Officer in charge seen after the arrest of the juvenile and before his production in the Court, many of the problems which presently arise in Courts, may not occur. It is the police which arrests and brings the accused before the Court. A juvenile delinquent arrested along with the adult criminals is taken to the regular Court of law instead of a Juvenile Court, no parent or guardian remains present in Court to protect the interests, no Probation Officer remains ready with information regarding the antecedents and the family history of the juvenile. The child is remanded to jail custody. Damage to the cause is done before the knowledge when a child has been arrested and sent to custody in jail with hardened criminals is revealed. The act gives power to the State Government to frame rules for such purposes. But rules have not been framed. A duty so clearly envisaged by the Act to inform the parent or guardian and the Probation Officer before the child is produced in the Court is not being observed. A child is still taken to the regular Court instead of taking him to the Juvenile Court."
"A Juvenile Welfare Board is as necessary as Juvenile Home, Special Homes and after care Organisations. The Act has burdened the State Government to Act in his regard. But the State Government has until now not awaken to it. If it does not arise to the occasion and continue to relish in the plight of the juveniles, it shall be accused by the posterity of neglect and callousness."
10. The concern for the child in the case of Sheela Barse v. Union of India , in Krishna Bhagwan v. State
(FB) and in the case of Dilip Saha v. State of West Bengal (AIR 1978 Cal 529) : (1979 Cri LJ 88) (FB), is reflected in one of the judgments of the Supreme Court in the case of Jaya Mala v. Home Secy. Govt. of J. & K. , when the Juvenile Justice Act was not yet born. The Supreme Court has given in the said judgment the age of the detenu as 17 and said as follows (at p. 1779 of Cri LJ) :-
"Detenu was arrested and detained on October, 1981. The report by the expert is stated May 3, 1982, that is, nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct., 1981, detenu was around 17 years of age. Consequently the statement made in the petition stands out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was upheaval in the educational institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates, he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. Once cannot treat young people may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge-hammer."
11. Sitting in a Bench of the Allahabad High Court, K. N. Singh, J., as he then was, dealt with the provisions of a detention of a young boy of 14 years, (vide Islam v. State of U.P., 1986 (1) Crimes 728 : (1986 All LJ 46)). The learned Judge has observed in the said case as follows (at pp. 47, 48) :-
"The District Magistrate's satisfaction regarding necessity of petitioner's detention was based on the facts recited in the sole ground supplied to the petitioner, according to which the petitioner was arrested along with others for cutting and removing electricity wire in respect of which a case under sections 379, 411, I.P.C. has been registered and after investigation charge-sheet has been submitted and the petitioner and others are facing trial before the Court. The petitioner is aged 14 years, so even if he is found guilty of the offence for which he is being tried, he could not be sent to jail in view of provisions of the Children Act, 1960. After convicting, the petitioner is entitled to be let off with or without admonition. If the Court finds him guilty, it may release the petitioner on probation for good conduct and place him under the care of his parents in accordance with S. 21 of the Children Act, 1960. But under the impugned order of the District Magistrate, the petitioner has been kept in detention in jail for the last 10 months. The legislative policy is clear that a child and specially a child of 14 years should not be sent to jail, as, there he may fall in the company of criminals and other undesirable persons. The legislative intended that such a child should be given opportunity to reform himself and for which purpose provisions have been made in the Act. The petitioner's detention is obviously inconsistent with the legislative policy. Preventive detention is quite different from punitive detention. Preventive detention does not partake in any manner of the nature of punishment. The Detaining Authority is accordingly, under a bounden duty to consider the facts and circumstances of the case with abundant caution and care specially in a case where the police submits proposals for the detention of a child of immature age."
"The question which arises for consideration is, whether detention of a child of 14 years under the provisions of National Security Act, 1980, was warranted. There may be cases where on account of Criminal Activities, of a young boy and his involvement in various serious offences indicating repetitive tendency, may make it imperative for the detaining authority to pass order detaining him if his activities are found to be prejudicial to public order or maintenance of supplies essential to the public. In the instant case, it is difficult to conceive that this young boy of 14 years, could indulge into activities posing threat to the maintenance of supplies essential to the community. There is no material regarding petitioner's involvement in similar activities in the past, there is no further material on record or circumstances to suggest that if the petitioner is not detained, he would again indulge in similar activities. In these circumstances it is difficult to conceive how could a reasonable person from opinion that the petitioner's detention was necessary to be made with a view to prevent him from indulging into similar activities. The petitioner's employment as a cleaner in the jeep and the fact that he had no criminal history should have been considered by the District Magistrate having regarded to the petitioner's age, before passing the detention order. It appears that the District Magistrate proceeded to pass the detention order on the basis of the police report in a mechanical manner without scrutinising the facts and circumstances of the case and without applying his mind."
12. In the case of Gopinath v. State of West Bengal (1983) (2) Crimes 937) : (1984 Cri LJ 168), the Supreme Court has interfered with the conviction of a juvenile tried in a regular Court of Session, on the ground that when it is unquestionably established on unassailable evidence that on the date of offence, the delinquent was aged about 16 or 17 years, he was a juvenile delinquent, he could not be committed to the Court of Session by the learned Magistrate. But only an enquiry could have been made against him as provided in S. 25 of the West Bengal Children Act, similar to the provisions in the Juvenile Justice Act and he could not be sentenced to suffer imprisonment.
13. However, contra view is noted in a Division Bench judgment of the Allahabad High Court, as respects detention of a juvenile under the National Security Act in the case of Mohd. Alim v. Supdt. District Jail, Moradabad (1993 (2) Crimes 4). The learned Judges constituting the Bench, considered whether the Children Act operated as a bar to the detention of a minor and answered the question in the negative. In that case, on facts, it is seen that the learned Judges entertained a doubt whether the detenu was a juvenile at all and the learned Judges distinguished Jaya Mala's case (1982 Cri LJ 1777) (supra) as follows :-
"The ratio of the decision in Jai Mala v. Home Secy. Govt. of Jammu and Kashmir (1982 Cri LJ 1777) is not that a young boy aged about 16 to 18 years would not be capable of indulging in any activity prejudicial to maintenance of public order. The provisions of U.P. Children Act, 1952 also do not in any way bar the detention of a minor under preventive laws. The facts of the instant case are clearly distinguishable from the facts on which the aforesaid ruling is based. Reliance has been placed by the learned counsel for the petitioner on S. 27 of the Act, but the proviso to S. 27 provides that a child who is 12 years of age or upward may be committed to prison when the Court certifies that he is of so unruly or of a depraved character that he is not fit to be sent to an approved school and that none of the other methods in which the case may legally be dealt with is suitable. In the instant case the petitioner is not below 12 years of age and as discussed above there is no convincing evidence to show that he is even below 16 years of age. The District Magistrate was satisfied from the Police records that the petitioner was a potential threat to the maintenance of public order and admittedly the police records mentioned his as 19 years. Hence, it cannot be said that the satisfaction of the detaining authority was not based on adequate material or that the case suffers from non-application of mind to the relevant material."
14. Learned Public Prosecutor has, however, drawn our attention to a Division Bench judgment of the Gauhati High Court in the case of Jagadish Bhuyan v. State of Assam (1992 (3) Crimes 570). A juvenile in that case was sought to be tried under the Terrorist and Disruptive Activities (Prevention) Act, 1987, primarily relying upon S. 25 of TADA (P) Act, which provides as follows :-
"Overriding Effect : The provisions of this Act or any rule made thereunder or any order made under such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other then this Act."
The Division Bench of Gauhati High Court has observed as follows :
"Although both Juvenile Justice Act and TADA (P) Act are special Acts, S. 25 of the TADA (P) Act contains a non obstinate clause with a view to give TADA (P) Act in case of conflict an overriding effect over the provisions in any enactment or instrument in the non obstinate clause.
It is true that Art. 15(3) is a special provision which can be applied in favour of women and children but not against them. It is also true that the child by reason of his physical and mental immaturity, needs special safeguard and care, including appropriate legal protection. But, under the TADA (P) Act the terrorism has been treated as a special criminal problem. The Act creates a new class of offences called 'Terrorist Act' and 'Disruptive Activity' which are to be tried exclusively by a Special Court called Designated Court by providing special procedure for trial of such offences. It may be noted that under S. 12 of the TADA (P) Act, the Designated Court may also try any other offence under any law while trying any offence under the TADA (P) Act. When the language of S. 25of the TADA (P) Act is so clear, we are unable to entertain the contentions of Mr. Uzir that TADA (P) Act cannot override the Juvenile Justice Act."
15. We have taken in particular such cases, such have been decided to indicate what is the role that the Juvenile Justice Act has to play and the role the Preventive Detention Law has to play, but our prospecting will remain inconclusive if we shall not take notice of the cases that are speaking in particular about the meaning word 'goonda' should receive under the Act (Act 14 of 1982) and when in the case of a goonda, an order under S. 3(1) of the Act, can be passed. The meaning, the word 'goonda' has received for the purpose of this law, has been extensively examined by us in the case of S. Manoharan v. State of Tamil Nadu etc. (H.C.P. No. 1642 of 1993 order dated 8-3-1994) we have stated the law in these words :-
"To summarise thus, it is necessary in every case of detention of a person as a goonda, whose activities affect adversely or are likely to effect adversely the maintenance of public order, that the detaining authority is satisfied that he or she habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code. This can be satisfied by knowing the activities of that person antecedent to the detention and knowing from such activities that such a person has been repeatedly or persistently committing or attempting to commit or abetting the commission of offences punishable under the said chapters of the Indian Penal Code. In a given case, however, it may be possible from a solitary act also, to know the persistency of that person in acts of violence, but that may be one of the rarest cases."
"A person's habitually committing or attempting to commit or abetting the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code alone, however, will not be enough if the antecedent acts are only causing disturbance to law and order and to the extent public order is disturbed in all such disturbances to law and order, the public order is found affected. It should be inferred as has been indicated above from the antecedent acts and the immediate past act of the person concerned that what has been done, has the tendency of adversely affecting the even flow of life, either in the whole of the State or in any area or quarter of the State."
16. Can then a minor, below the age of 16 years, at the time of the commission of the antecedent offences, be a goonda, as defined under S. 2(f) of the Act, and as we have held that for the purposes of detention under S. 3(1) of the Act, that he is engaged or is making preparation for engaging in any of his activities as a goonda, which effect adversely or are likely to affect adversely the maintenance of public order ? We have noted that the Act has defined a delinquent juvenile to mean a juvenile, who has been found to have committed an offence. The word 'offence' is defined in the Act to mean an offence punishable under any law for the time being in force. Prescriptions the Juvenile Justice Act have already been noticed by us. There can be no order, after conviction for any offence committed by a juvenile, to sentence him to death or to imprisonment. A juvenile cannot be committed to prison in default of payment of fine or in default of furnishing security. A juvenile cannot be treated as a habitual offender and cannot be called upon to furnish security for good behaviour under S. 110 of the Code of Criminal Procedure. He cannot thus, even for the purpose of security, be treated as a habitual offender. Indian Penal Code is referable in the case of a juvenile for the purposes of knowing the nature of the offence committed by him, but not for the purposes of conviction after trial in a regular Court of law, or, for sentencing him to prison, or, payment of fine, except as contemplated under S. 21(1)(e) of the Act (Act 53 of 1986). All disqualifications attached to conviction, are avoided, as the Act a clear provision that a juvenile, who has committed an offence and has been dealt with under the Act, shall not suffer disqualification, if any, attaching to a conviction under such law. It is in this background that the Full Bench of the Patna High Court in the case of Krishna Bhagwan
(supra) has observed thus (at pp. 226, 227) :
"Even if such a child has committed a murder or a rape, in view of S. 22 neither he can be sentenced to death nor to imprisonment. It is true that in many cases the offences committed by such delinquent children may be shocking to the conscience and their conduct and behaviour may be abhoring but S. 22 is quite conscious of such situations."
In this context, as the observation above quoted indicates, there is a provision under the Juvenile Justice Act that a child, who has committed heinous offence of murder or rape or other serious offences, is required to be kept in safe custody at a place ordered by the State Government. This is a benefit intended for the children and they must receive it. Our Constitution protects any person from conviction for any offence, except in violation of a law in force at the time of the commission of the offence and says that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence and provides for the protection of life and personal liberty in Art. 21 as follows :-
"No person shall be deprived of the life or personal liberty except in accordance with procedure established by law."
Preventive detention laws however fall in the exception and are contained and controlled by such sanctions, which are approved under Art. 22 thereof. A preventive detention law may or may not have the overriding effect. But, as to how and when a certain law will extinguish the effect of another law, depends not in the name of the law, but in the scheme and the intention of the law express or implied. Preventive Detention Laws, like Act 14 of 1982, are sustained mainly because they are introduced with the avowed object of curbing the activities of anti-social elements, who disturb public order and tranquillity by engaging themselves in activities, which a normal society cannot countenance and to avoid the evil effects of the illegal activities of such persons on the maintenance of supplies of commodities essential to the community, on the country's relationship with other foreign powers or its security and defence. While no person in a democracy like ours, as we have noticed, shall be deprived of his life or personal liberty, except in accordance with the procedure established by law, a special procedure as respects the preventive detention laws is sanctioned by the rules in Art. 22 of the Constitution itself and once a preventive detention law is kept within the confines of the rules in this behalf, as found in the Constitution of India, they are sustained also for the reason that anti-social activities engulf the freedom of such individuals, who abide by the law. A juvenile and a child, however, are prone to evil effects of the anti-social activities, as situations of social mal-adjustment and conditions, in which they are made to live, make them easy victims of machinations of anti-social elements in the society. A formal system of Juvenile Justice, without involvement of voluntary agencies engaged in the welfare of neglected or socially maladjusted children, was not found adequate and a need for larger involvement of informal systems and community based welfare agencies in the case, protection, treatment, development and rehabilitation of such juveniles was felt necessary leading to the enactment by the Parliament in the Thirty Seventh Year of the Republic of India a law aimed at achieving various objects, as noticed by us earlier, including the objective of bringing the operation of the juvenile justice system in the country in conformity with the United Nations standard Minimum Rule. This Act has put the Police, the Executive and the Court in its scheme in such a way that each in its role, is made responsible to ensure that a child, is not put into the association of any known criminals or put to any moral danger. S. 18(1) of the Act 53 of 1986 enjoins that when any person accused of a bailable or non-bailable offence and apparently a juvenile is arrested or detained or appears or is brought before a Juvenile Court, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice. S. 18(2) then states :-
"18(2) When such person having been arrested, is not released on bail under sub-section (1) by the officer-in-charge of the Police Station, such Officer shall cause him to be kept in an observation home or a place of safety in the prescribed manner (but not in a Police Station or Jail) until he can be brought before a Juvenile Court."
Then S. 18(3) states thus :-
"18(3) When such person is not released on bail under sub-section (1) by the Juvenile Court, it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the tendency of the inquiry regarding him as may be specified in the order."
Section 19 of the Act has cast a duty upon the officer in charge of the Police Station, to which the juvenile is brought, after arrest, to inform, (a) the parent or guardian of the juvenile, if he can be found, of such arrest and direct him to be present at the Juvenile Court before which the juvenile will appear; and (b) the Probation Officer of such arrest, in order to enable him to obtain information regarding the antecedents and family history of the juvenile and other material circumstances likely to be of assistance to the Juvenile Court for making an inquiry. Enquiry by the Juvenile Court regarding the delinquent juvenile is then required to be held in accordance with the provisions of S. 39 of the Act, which enjoin that the competent authority, while holding an enquiry under any of the provisions of the Act, shall follow such procedure, as may be prescribed and subject thereto shall follow as far as may be, a procedure laid down in the trials summons cases in the Code of Criminal Procedure, 1973. All reports about the delinquent juvenile are to be treated as confidential and S. 36 of the Act says :
"(1) No report in any newspaper, magazine or news-sheet of any inquiry regarding a juvenile under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile nor shall any picture of any such juvenile be published :
Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile.
(2) Any person contravening the provisions of sub-section (1) shall be punishable with fine which may extend to one thousand rupees."
We have delved into some of the provisions of the Juvenile Justice Act only to find that juvenile delinquency is considered as a disease caused by situations of social maladjustment and conditions in which young boys and girls are put by the elders of the society. If a child is seen soliciting or receiving alms in a public place or entering into any private premises for the purpose of soliciting or receiving alms, whether under the pretence of singing, dancing, fortune telling, performing tricks or selling articles or otherwise, exposing or exhibiting with the object of obtaining or extorting alms any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal, or allowing oneself to be used as an exhibit for the purpose of soliciting or receiving alms, - yes, he is begging. But he is made a begger by the social conditions and if such conditions are improved, he may be one amongst the best of his age group in the society. Delinquency in young children is sometimes the result of neglect they suffer such of when they are made to beg and live without having any home or settled place of abode and without any ostensible means of subsistence. They also become delinquents, when they fall in the company of anti-social elements and hardened criminals or are made to live in the areas afflicted by immorality and unconscionable conditions. The law thus we have seen, has recognised of the presence of such evils in the society, which inject in young minds the germs of crime and it has made its intention clear that neither the police nor the Court nor any other authority release a delinquent juvenile on bail, with or without surety, if there appear reasonable grounds for believing that the release of the juvenile delinquent is likely to bring him into the association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice. Unlike in the case of an adult-accused of a cognizable offence, in the case of a child accused, it is the safety of the accused, which is most important and not that he has made out a case for bail and a bail should be granted as a rule. Arrest of a juvenile delinquent is not for the purpose of putting him in prison or jail, but for the purpose of keeping him in such custody, which shall ensure that he is not affected by the vices, which adult criminals carry with them. Such custody is recommended while enquiry is held into the charges as well as, as part of the sentence, after the juvenile is found guilty of having committed any offence. The scheme of the law for the neglected juveniles and delinquent juveniles is clear to the extent that such a child could be left in the custody of the parent or guardian only when the parent or such guardian is worthy of such custody and otherwise to keep the child in such custody of a home, which will provide to him a proper atmosphere to grow as a respectable young man.
17. If a child, therefore, is put under detention as a goonda, he is exposed to every such thing, which Juvenile Justice Act says he should not be exposed to; he is branded as a goonda, in the sense that he has habitually committed or attempted to commit or abetted the commission of offences punishable under Chapter 16 or Chapter 17 or Chapter 22 of the Indian Penal Code, a habit, he can form only if after the commission of the first offence by him, he is not put to the care of a parent or home, as the Juvenile Justice Act has contemplated to protect him from evils of the society. We are inclined on a comparison of the provisions under Tamil Nadu Act 14 of 1982 and the Juvenile Justice Act, 1986 that a juvenile can be found to be a goonda only when the police and the Court shall fail to discharge their duty, as enshrined under the Juvenile Justice Act. If they act as required under the law, they will not allow a juvenile to form the habit, which will make him a goonda and give him opportunity to engage himself in any activity of a goonda, which would affect adversely the maintenance of public order. We have not felt the necessity of examining the overriding effect of the power of detention under Act 14 of 1982, for the simple reason that this Act shall be attracted only in the case of goondas, bootleggers, drug offenders, forest offenders, slum grabbers or persons engaged in immoral traffic and a child, in our opinion, cannot satisfy the definition of a goonda. This, we have examined in some detail and we believe, if the Juvenile Justice Act has to play its role, a child shall also not satisfy the other conditions of the law of preventive detention.
18. A Juvenile's freedom is one of a proper custody of a guardian, either a natural guardian, a de facto guardian, or a de jure guardian appointed by a Court. Detention in judicial custody or otherwise is a task discharged by the Courts and other competent detaining authorities to put a person in custody, where he is not free to act at his will and resort to unlawful activities. Since a juvenile is always in custody and that custody is deliberately chosen by the Juvenile Justice Act, it is difficult to think that his delinquency will make him a habitual offender and a goonda in that sense.
19. It is clear discretion of the police and the Court, after complying with the requirements of law in this behalf, to choose the custody of the juvenile, except in jail, if proper care is taken and the age of the offender is ascertained and when he is found a juvenile, care is taken to see that he is not left in the custody of the parents, who are likely to expose him to the dangers of the social evils and all such other conditions are met with concern for the welfare of the child (juvenile), there will be no occasion for anybody to resort to action of preventive detention of such person.
20. When we say that a juvenile shall not be detained under Tamil Nadu Act 14 of 1982. We do not for a moment intend to suggest that when young children are found by the law enforcement authorities to be engaged in anti-social activities, no action should be taken against them. There should be more prompt action than in the case of any adult offender, in the case of a juvenile. He should be taken to proper custody but for the purposes under the Juvenile Justice Act, the detaining authorities - Authorities shall have the freedom to create a special home for juvenile delinquents and juvenile delinquents can be detained in such homes, but for the purposes envisaged under the Juvenile Justice Act.
21. On the facts of the instant case, we are inclined to hold that the petitioner's son is a juvenile, who should not have been subjected to a preventive detention under Tamil Nadu Act 14 of 1982.
22. In the result, the petition is allowed, the order of detention No. 283/1993 dated 19-8-1993 on the file of the 2nd respondent is set aside and the respondents are directed to release the petitioner's son forthwith. It shall however, be open to the respondents to take the petitioner's son in such custody of a guardian or home, which the Juvenile Justice Act permits.
23. Petition allowed.