IRSHAD KOHLI Vs. STATE OF JAMMU AND KASHMIR
HIGH COURT OF JAMMU AND KASHMIR
STATE OF JAMMU AND KASHMIR
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(1.) ORDER :- This revision petition is directed against an order passed by learned Sessions Judge, Jammu on 30-4-1999. The petitioner-accused, who claims to be a child, as defined under the Children Act, 1970 (hereinafter referred to as the Act), is standing trial in terms of Section 3/27 of Enemy Agents Ordinance Act read with other provisions. He filed an application before the trial Court for holding an enquiry with respect to his status as a child and granting him clemency of the Act. That application was rejected by the trial Court vide the impugned order. The only ground taken for such rejection was that two original certificates one issued by the School and other by the Numberdar concerned, were not produced before the Court below. This order has been challenged on the ground that the learned Sessions Judge did not take into account the scheme and object of the Act and enquiry as envisaged by the Act, was not conducted. Notice in this petition was issued to the State on 24-5-1999. Mr. P. C. Sharma appeared and accepted notice on 9-7-1999. Today when I took up the matter, nobody appears for the State.
(2.) I have heard the learned Counsel for the petitioner. In order to understand the Act, we will have to recognise complexion and appreciate its scheme and object. Before doing that we will have to trace its origin. The Act owes its origin to the constitutional philosophy of India. Securing of social justice is one of the aims of the sovereign republic while Art. 38 in general terms binds the State to make all efforts to promote welfare of people to secure the cause of social justice. Parliament and Judiciary both have acknowledged children to be the most precious national wealth. Therefore, Art. 39(e) and (f) in particular, outlines the protection sought to be extended to children. The directive principles of the State Policy thus aim at providing fullest opportunities and facilities to children to ensure them all round development, to create conditions of freedom and dignity for them and to protect them against abandonment moral and material. The Act which is purely a social welfare legislation is a product of this philosophy, and seeks to fulfil the dream of the Constitution translated into expressions in terms of Arts. 38 and 39(e) and (f).
(3.) The object of the Act, therefore, is to ensure the welfare and protection of those of the criminals who are on the threshhold of the most turbulent stage of adolescence. This object is revealed by the preamble of the Act, which reads as under :- "An Act to provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the trial at delinquent children in the State."
Obviously the Act is intended to be used as an umbrella for children accused, in order to explore the possibility of transforming them into good citizens of the country and segregating them from the world of crime. This object all along seems to have been at work while devising the whole machinery of the Act. Establishment of Children Welfare Boards, Children Courts, Special Schools and special provisions for dealing with delinquent children are special features of the Act. Section 8, calls upon a Court, which does not have the powers of a Board or Childrens Court under the Act to record its opinion with respect to an accused being a child and forward the child and the proceedings to the competent authority. The Criminal Court has only to form his opinion on the appearance of the accused. It is true that while forming this opinion the Court may hold a
brief enquiry with respect to the actual age of the accused but such enquiry is not expected to be the substitute of a civil proceedings so that things are asked to be proved and disproved, on the basis of law of evidence. The object of the Act, the expression used in Sec. 8 and above all the liberal approach adopted by the legislature in Sec. 3 in treating a child to be so, even after he ceases to be a child during the trial, are the factors which must influence the Courts while treating the accused to be a child.;
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