Subhash Saitv. Sree Gokulam Chits: ‘A Practical Solution or Petition Allergy’

By Rohit Nandakumar, Student, NUALS

20/02/2016

Subhash Saitv. Sree Gokulam Chits:
‘A Practical Solution or Petition Allergy’

(By Rohit Nandakumar, X Semester, Batch of 2011-16,

The National University of Advanced Legal Studies (NUALS)

The question that was considered by the High Court of Kerala in the decision Subhash Sait v.Sree Gokulam Chits (2015 (4) KLT 497) was whether a convict sentenced to fine, if fails to deposit the same within the time granted by the High Court or Sessions Court, can subsequently deposit the fine without any further direction from the High Court or Sessions Court, as the case may be, to avoid the default sentence.

Facts of the case has been summarized as follows: the applicant in the instant petition was an accused who was convicted by the trial court in case under S.138 of the Negotiable Instruments Act, 1881. The conviction was upheld by a single Judge of the Kerala High Court in revision and modified the sentence into one of fine of `1,88,000/- with a default clause for simple imprisonment for three months. It was also directed that if the fine amount is realized, the entire amount shall be given to the complainant u/S.375(1) of Cr.P.C. The petitioner/convict was also permitted by the High Court to either deposit the amount before the court below or to pay the compensation directly to the complainant within six months of the order. The petitioner/convict was directed to produce a memo before the trial court in case of direct payment. The time limit fixed for payment was later extended by the court once. But, the convict could not remit the amount within the extended time also. Subsequently, he paid the amount in instalments to the complainant and intimated the matter to the trial court. However, the trial court was not prepared to accept the said payment as the said payment was effected beyond the time prescribed by the High Court and initiated coercive steps against the petitioner/convict to recover the amount. In such a circumstance the petitioner/convict approached the High Court by Criminal Miscellaneous Application for remedies, praying for extension of time. The question that had to resolved by the court was whether a payment made by the applicant directly to the complainant, as directed by the High Court, after the period stipulated by the High Court be accepted by the trial court, as sufficient compliance of the direction of the High Court, without any further order from the High Court granting enlargement of time?

In reaching a solution for the problem before it, the court considered two important provisions from the Indian Penal Code- Ss 68 and 69. The sections read as follows:

68. Imprisonment to terminate on payment of fine.—The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.

69. Termination of imprisonment on payment of proportional part of fine.—If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.

Illustration

A is sentenced to a fine of one hundred rupees and to four months’ imprisonment in default of payment. Here, if seventy-five rupees of the fine be paid or levied before the expiration of one month of the imprisonment, A will be discharged as soon as the first month has expired. If seventy-five rupees be paid or levied at the time of the expiration of the first month, or at any later time while A continues in imprisonment, A will be immediately discharged. If fifty rupees of the fine be paid or levied before the expiration of two months of the imprisonment, A will be discharged as soon as the two months are completed. If fifty rupees be paid or levied at the time of the expiration of those two months, or at any later time while A continues in imprisonment, A will be immediately discharged.

Sections 68 and 69 of the Penal Code may be seen as conferring a right to a convict imprisoned for default in payment of fine to escape imprisonment by paying the fine or such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid.

A reading of Section 68 and 69 would point out that an imprisonment imposed is to terminate on the payment of fine. Section 68 lays down that an imprisonment imposed is to terminate on payment of fine. An imprisonment imposed need not necessarily mean that the convict is actually undergoing the imprisonment. It would also envisage a situation where a person is merely sentenced to undergo an imprisonment rather than actually undergoing the imprisonment

With Sections 68 and 69 of the Penal Code in place, one would have to consider the effect of an imprisonment being meted out to the convict in the case at hand (ie., Subhash Sait v. Sree Gokulam Chits). Payment of the fine has already been made to the complainant and the coercive step that was initiated is imprisonment to which the convicted person may be subjected to is one in default of payment of fine. As the fine has already been paid and keeping in view Section 68 of I.P.C., a reluctance to recognise the payment of fine, even though a belated one may only be seen as an exercise in futility. Once the imprisonment commences the convict would again have a right to pay off the fine and escape imprisonment. Imprisonment in default of payment is a coercive step to ensure payment of fine. Where the payment has already been done, whether belated or not, a move to initiate any coercive step cannot be seen as one ensuring justice.

In the facts of the instant case, from what can be inferred from the statements in the judgment, it may be safe to infer that no complaint had been made by the original complainant as against the belated payment by the convict/petitioner.

The payment was carried out by the convict and intimated the matter to the trial court. But, it was the trial court which was not prepared to accept the said payment as being effected beyond the time prescribed by the High Court. The provisions for sentence of imprisonment for non-payment of fine is incorporated and imposed for the purpose of inducing an offender to pay the fine. Such an inducement would no longer be required, where the payment of fine has already been carried out by the offender. Any coercive step by way of imprisonment shall terminate whenever the fine is paid or levied by a process of law or a proportional payment or levying of fine causes proportional reduction of the term of imprisonment by virtue of Ss.68 and 69 of the I.P.C. It is also important to note that the provisions for termination of imprisonment on payment of fine as laid down under Ss.68 and 69 of the I.P.C. is one of mandatory nature. In such a circumstance the adamancy in not recognising a belated payment and in initiating coercive steps would be an abuse of the process of law and serve no benefit.

Another aspect to be considered is that such an insistence in not recognising a belated payment and in initiating coercive steps would only deny timely justice to both the complainant and the convicted. Failure to recognise or permit an accused to deposit a fine amount after the date stipulated by the High Court/Sessions Court on the mere reason that no direction for extension of time has been granted by the High Court/Sessions Court can never be justified and would only result in increasing number of petitions being filed before the Honourable Courts. It is therefore important to draw one's attention to the observation made by the Law Commission of India in its 245th report, “denial of ‘timely justice’ amounts to denial of ‘justice’ itself. Timely disposal of cases is essential for maintaining the rule of law and providing access to justice which is a guaranteed fundamental right. However, the judicial system is unable to deliver timely justice because of huge backlog of cases for which the current judge strength is completely inadequate. Further, in addition to the already backlogged cases, the system is not being able to keep pace with the new cases being instituted, and is not being able to dispose of a comparable number of cases. The already severe problem of backlogs is, therefore, getting exacerbated by the day, leading to a dilution of the Constitutional guarantee of access to timely justice and erosion of the rule of law.”

In such situation the decision taken by the Honourable Court in the instant case of Subhash Sait v. Sree Gokulam Chits deserves appreciation. The court has emphatically laid down that default sentence is not punitive, but is only a measure to enforce payment of fine/compensation ordered by the court. It also laid down that it is illegal, incorrect and unjust to refuse to permit the convict to deposit the fine amount after the date stipulated by the High Court/ Sessions Court on the mere reason that no direction for extension of time has been granted by the High Court/Sessions Court.

The judgment does not place any absolute restriction on any court in initiating any coercive steps against the defaulting person. It lays down the where fine has been tendered by the accused it should be accepted even after the time prescribed by any court in this regard. The courts are free to resort to coercive methods where fine is not tendered, but only until the payment of the defaulting fine. What has been prohibited is only the refusal on the mere reason that no extension of time has been granted, if any other legitimate compelling reasons prevail no prohibition has been laid by this judgment against refusing the acceptance the fine amount. Adamantinsistence to approach Higher Courts for ratification of belated payments of fine would only lead to increasing number of unnecessary petitions being filed before the higher courts in a judicial system that suffers from lack of sufficient number of judges and from backlogging and pendency of cases. Even if the belated payment is refused by the higher court, by virtue of Ss.68 and 69 of the I.P.C. the authorities would have to accept the fine as and when tendered by the convict and terminate his imprisonment accordingly. A direction to accept the fine even if tendered late cannot be therefore seen as any sort of “PETITION ALLERGY”, “APPLICATION PHOBIA” OR “MOTION DISGUST”. As repeatedly pointed out by the Honorable Courts, procedure is to be viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.

This judgment may be seen as a practical solution to question that had been considered by the court, which would in turn serve justice to the parties and prevent unnecessary petitions being filed before court the aftermath of which would be mechanically predictable and thereby contribute its fair share in reducing any backlog that may be created and to ensure timely justice.

Juvenile Justice Act, 2015; An Emotional Aftermath of the Dreaded ‘Nirbhaya Incident’; A Step Backward

By Nizam Azeez Sait, Advocate, Alappuzha

20/02/2016

Juvenile Justice Act, 2015; An Emotional Aftermath of the
Dreaded ‘Nirbhaya Incident’; A Step Backward

(By Nizam Azeez Sait, Advocate, Alappuzha)

Twenty Second of December 2015, the day on which the Upper House passed the long pending Juvenile Justice (Care and Protection of Children) Bill, 2015 and thereby brought it into the Statute book, marks a black spot and a step backward in the history of the Juvenile Justice Regime of India.

History of Juvenile Justice Regime in India

In earlier days, the criminal justice system as available for adults was applied to a juvenile or the child irrespective of his age. The first legislation in India providing special treatment for children is the Apprentice Act 1850. The Act comprised of provisions for providing vocational training to convicted children as Apprentices to teach them trade, craft or employment for their rehabilitation.

Under the Indian Penal Code which was enacted in the year 1860, a child below the age of 7 is considered as not capable of committing a crime (doli incapax). By virtue of S.82, absolute immunity from criminal liability is provided to a child under the age of 7 years. Section 83 of the Penal Code provides partial/qualified immunity to a child above 7 years and under the age of 12. Penal Code treats a child above 12 years at par with adults.

It was realised even in the late nineteenth century that it would not be conducive for the growth and rehabilitation of convicted children to send them to ordinary prisons where they might mix with hardened adult criminals to their detriment. Consequently, the Reformatory School Act 1897 was enacted which provided for the constitution of Reformatory Schools for young persons (boys not above the age of 15 years) convicted and sentenced to imprisonment by courts. The Report of the Indian Jails Reforms Committee 1919 -1920 condemned the presence of children in prisons and recommended the enactment of a special law for children. Immediately following the recommendations of the Committee, the Madras, Bengal and Bombay Provinces enacted Local Children Acts in 1920, 1922 and 1924 respectively. Governments rightly realized that the justice system as available for adults was not suitable for being applied to juveniles. After independence, the Parliament enacted the Children Act 1960 which was applicable to Union Territories. The individual States also enacted Local Children Acts to deal with ‘delinquent’ and ‘neglected’ children. The need for a uniform law throughout the country, for providing on the basis of modern concepts, the legal frame work in the area of juvenile justice was long felt. The desire for a uniform law throughout the country ultimately materialised in the form of the ‘Juvenile Justice Act 1986'.

The visionary Constitution makers had realized that the Children being vulnerable are in need of special protective treatment and the greatest social care.

Special Constitutional Provisions for children include the following:

Article 15(3) enables the State to make special provisions for children

Right to free and compulsory elementary education for children (Article 21 A)

Right to be protected from any hazardous employment (Article 24)

The Directive Principles of State Policy further prescribe that:

The State shall direct its policy towards securing that the tender age of children are not abused and forced by economic necessity to enter occupations unsuited to their age or strength (Article 39(e)) and that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment (Article 39 (f)).

In Satto v. State of U P. (AIR 1979 SC 1519) V.R Krishna Iyer J. , speaking for the bench observed:

“Correction informed by compassion, not incarceration leading to degeneration, is the primary aim of this field of criminal justice. Juvenile justice has constitutional roots in Arts. 15(3) and 39(e) and the pervasive humanism which bespeaks the superparental concern of the State for its child citizens including juvenile delinquents. The penal pharmacopoea of India, in tune with the reformatory strategy currently prevalent in civilised criminology, has to approach the child offender not as a target of harsh punishment but of humane nourishment. This is the central problem of sentencing policy when juveniles are found guilty of delinquency. A scientific approach may insist on a search for fuller material sufficient to individuate the therapy to suit the criminal malady.”

The Preamble of the United Nations Declaration of the Rights of the Child 1959 aptly points out:

"The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”, and that “mankind owes to the child the best it has to give”.

With the progress of time and by the adoption of various international instruments on child rights by the United Nations, the concept/ideals of Juvenile Justice gained a more tangible and progressive form. The course of events and developments concerning juvenile justice in the international scenario has greatly influenced our country in shaping its juvenile justice regime. India has been signatory to and ratified many of the International Conventions relating to child rights. Thus, it had become India’s international obligation to incorporate the mandatory principles embodied therein, in the domestic/municipal law.

The following are among the important International Instruments which have contributed in the process of the development of the Juvenile Justice system in India:

1. The United Nations Declaration of the Rights of the Child 1959,

2. The UN Convention on the Rights of the Child (UNCRC) 1989,

3. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) 1985,

4. The United Nations Rules for the Protection of Juveniles Deprived of their
Liberty, 1990,

5. The United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990,

6. The Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993.

7. The United Nations Guidelines for Action on Children in the Criminal Justice System 1997, and

8. The United Nations Committee on the Rights of the Child; General Comments on Children’s Rights in Juvenile Justice. 2000.

The Preamble of the Juvenile Justice (Care and Protection of Children) Act, 2000 acknowledged the significance of such international instruments in the following words:

WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments.

In Prathap Singh v. State of Jharkhand (2005 (1) KLT SN 89 (C.No.115) SC = (2005) 3 SCC 551, a 5 judge Constitutional Bench of the Supreme Court of India while dealing with the 2000 Act observed:

“The Juvenile Justice Act specially refers to international law. The relevant provisions of the Rules are incorporated therein. The international treaties, covenants and conventions although may not be a part of our municipal law, the same can be referred to and followed by the courts having regard to the fact that India is a party to the said treaties….Constitution of India and other ongoing statutes have been read consistently with the rules of international law. Constitution is a source of, and not an exercise of, legislative power. The principles of international law whenever applicable operate as a statutory implication but the legislature in the instant case held itself bound thereby and, thus, did not legislate in disregard of the constitutional provisions of the international law as also in the context of Articles 20 and 21 of the Constitution. The law has to be understood, therefore, in accordance with the international law. Part III of our Constitution protects substantive as well as procedural rights. Implications which arise there from must effectively be protected by the judiciary. A contextual meaning to the statute is required to be assigned having regard to the constitutional as well as international law operating in the field.”

It is an accepted trite principle of International law that a State cannot make laws inconsistent with the international conventions/treaties adopted and ratified by it.

It is true that some of the advanced countries with higher rates of juvenile delinquency like United States Of America, United Kingdom, Canada etc., have not updated their Juvenile Laws in conformity with the International Conventions but of late, widespread demands for the same and a re-thinking on the issue is discernible in those countries.

Age of Juvenility and the Lingering Controversy Revolving Around it

Under the 1986 Act the age limit for a boy to be a Juvenile was 16 years and for a girl it was 18 years. As per S.2(k) of the 2000 Act “juvenile” or “child” means a person, who has not completed eighteen years of age. The disparity between a boy child and a girl child was removed in the 2000 Act and the age limit was made 18 years for both girl and a boy.

Article 1 of the UN Convention on the Rights of the Child 1989 (CRC), defines a child in the following terms:

Article 1: For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Whereas Article 37(a) reads as: State Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

It is relevant to note that as per S.3 of the Indian Majority Act.

“Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.” The age of voting in India is 18 years. Minimum age for marriage for woman is 18 years and for men it is 21 years. Age for contractual competence is the age of majority i.e., 18 years. Age for valid consent in the case of rape law was also raised from 16 to 18 years recently.

Committee under the Convention on the Rights of the Child 1989 (CRC) for the purpose of examining the progress made by the State parties on the rights of the child, after considering the formal report submitted by India, in January, 2000, recommended that the State party shall consider raising the age of criminal responsibility and ensure that persons under 18 years are not tried as adults. (See, Dr. Subramanian Swamy v. Raju through Member, Juvenile Justice Board (2014(2) KLT SN 24 (C.No. 32) SC = AIR 2014 SC 1649).

Thereafter, in the light of a thorough evaluation of the above recommendation the age of Juvenility of boys was also raised to 18 in the 2000 Act inter alia to bring the Municipal Law in conformity with the Convention on the Rights of the Child 1989 (CRC). The step was widely welcomed in general and especially by those who were concerned and engaged in the protection of child rights. The 2000 Act emphasized on reformation of the deviant juvenile who happen to come in conflict with the law. With the progressive humane approach, ‘An eye for eye’ or retributive philosophy became alien to the Juvenile Justice system. As per the Act the juvenile was completely kept away from the formal adversarial criminal justice system available for adults. Joint proceedings of a ‘juvenile in conflict with law’ with adult persons stood prohibited and instead a distinct and separate procedure sans the formal settings of judicial proceedings was prescribed for the Juvenile. The procedure was more child friendly and the object was the reformation of the ‘juvenile in conflict with law’, with due emphasis on his developmental needs, rehabilitation and social reintegration.

In the case of a juvenile in conflict with law, the Act provided that the Board shall obtain a social investigation report on juvenile and shall take into consideration the same before passing any order. The Act provided for a wide range of reformative measures under Ss. 15 and 16 for children in conflict with law – from simple admonition to maximum 3 years of institutionalisation in a Special Home. After proper enquiry, if the Board finds that the juvenile had committed an offence it could allow the juvenile to go home after advice or admonition or direct the juvenile to participate in group counseling or to perform community service or order the parent of the juvenile or the juvenile himself to pay fine when he is over fourteen years and earns money (the juvenile cannot be committed to prison in default of payment of fine) or direct the juvenile to be released on probation of good conduct or make an order directing the juvenile to be sent to a special home for a period of 3 years. A juvenile who has attained 16 years and has committed a serious offence may be directed to be kept in such place of safety if the Board finds that it would not be in his interest or the interest of other juveniles in the Special Home to send him to such special home (Ss15 and 16 of 2000 Act).

Things being so, on 16th December, 2012 a young lady was brutally raped and grievously injured inside a moving bus at New Delhi by six persons including a juvenile, who had attained the age of 17 years at the time of incident. After the most gruesome gang rape she was thrown out of the bus. The nation was shocked by this dreaded maniacal incident and it evoked grave protest all around raising question on the safety of woman in the country. The brave lady succumbed to her injuries on 29/12/2012 amidst the prayers of the whole nation for her life. There arose wide hue and cry demanding the hanging of the persons including the juvenile who perpetuated this brutality. There were even demands from many quarters that the protection of juvenile from the regular criminal justice system must be done away with. Many asked for lowering the age of Juvenility. The case came to be referred as the ‘Nirbhaya case’. The whole nation was empathetic to the brave soul of ‘Nirbhaya’ and showed solidarity to her family. But the nation was divided on the issue as to what ought to be the proper age of juvenility, with most experts/people having field work experience on child rights on one side advocating for persisting with 18 years and on the other hand a mob of emotional hearts for lowering the age limit.

Right Upbringing of Children in Conducive Atmosphere a State/Societal Responsibility

As seen above, the Constitution mandates certain obligation on the State regarding the welfare of its child citizenry.

An old proverb says, “Train a child in the way he should go, and when he is old he will not turn from it” (Proverb 22: 6 Bible).

There is another proverb which says that “it takes a village to raise a child and there is no such thing as other people’s children.” The poet, Khalil Gibran rightly said, “Our children are not our children, they are the sons and daughters of life, longing for itself.”

In Sheela Barse v. Secretary Children’s Aid Society (1987) 3 SCC 50:
AIR 1987 SC 656), the Supreme Court speaking through Chief Justice Bhagavathi, observed:

“Gerontocracy in silent manner indicated that like a young plant a child takes roots in the environment where it is placed. Howsoever good the breed be if the sapling is placed on a wrong setting or an unwarranted place there would not be the desired growth. Same is the situation with the humane child.”

In Supreme Court Legal Aid Committee v. Union of India (AIR 1989 SC 1278 (Ranganath Misra, M. N Venkatachaliah, JJ). the Hon’ble Supreme Court of India taking note of the failure of the Government in upholding the constitutional mandate and the lazy attitude in the implementation of the beneficial provisions of the Juvenile Justice Act 1986, observed:

“There can be no two opinions that these children of today are the citizens of tomorrow’s India and the country’s future would necessarily depend upon their proper hygiene, physical and mental. Children require the protective umbrella of society for better growth and development as they are not in a position to claim their entitlement to attention, growing up, food, education and the like. It is responsibility of the society and is one of the paramount obligations of those who are in charge of governance of the country today to attend to the children to make them appropriate citizens of tomorrow.”

Children are not merely the responsibility of their parents. It is also the State’s responsibility to protect the rights of the children and provide them with opportunities and facilities to grow and develop to their potential and it is a societal responsibility that they don’t mix with the rogue elements in the society and deviate to the path of crimes. Even in the gruesome Nirbhaya incident the young boy at the tender age of 17 had been permitted to get associated with hardened criminal minds and thereby to get ill educated and carried away to their ways. For that, it is submitted, the society as a whole should also share the responsibility. Indeed he too was a ‘child in need of care and protection’ as contemplated in the Juvenile Justice Act and infact the society and the authorities failed in tracing him out before the gruesome mishap. Hanging the youngster or putting him in dark cell indefinitely per se will not redeem anyone from that societal responsibility. Lack of proper parental guidance, lack of proper education/ill education, lack of societal monitoring, poverty etc are generally the causes of child delinquency in our country. The equation of deterrence as is projected by the promoters of the 2015 Act to check the child delinquency, it is submitted is a misdirected thinking. It is not that the benevolent Juvenile Justice Regime of our country of huge child population had not contemplated that sporadic incidents of brutality involving children would never happen, but the law had been designed to take it as societal failure and address it from a preventive and reformative angle. It is always propagated that in the absence of strong deterrent law to deal with deviant children, terrorists and other unruly elements would use children for their ill designs. It has to be seen that such children are not perpetrators of crime but victims in themselves. The effort should be to guard our children from getting exposed to such influences of hardened criminal elements.

State Action after the ‘Nirbhaya Incident’;

The Government appointed Justice J.S. Verma Committee, which in addition to the former Chief Justice of India Late Justice J. S. Verma comprised of very eminent Lawyers and Social activists, to look into the possible amendments to the Criminal Law to provide for quicker trial and enhanced punishment to the persons committing sexual offences of extreme nature against women as an aftermath of the dreaded ‘Nirbhaya incident’. The said committee took up the task very effectively and after extensive hearings and thorough scientific analysis came with a report. The Government was pleased to bring in amendments in criminal law especially in the law relating to rape, intune with the recommendations, through the Criminal Law Amendment Act 2013. The Justice J.S. Verma Committee specifically considered the issue relating to reduction of age of juvenile from 18 years to 16 years. The Committee dealt with the matter in paragraphs 44 to 55 of the Report, in para 44 the Committee said, “We have heard experts on the question of reduction of the age of a juvenile from 18 to 16 for the purpose of being tried for offences under various laws of the country.”

The Committee was of the view that long imprisonment of a person at the age of 16 would not be a good idea from a reformation angle. The Committee observed that “Our jails do not have reformatory and rehabilitation policies. We do not engage with inmates as human beings. We do not bring about transformation…. Children, who have been deprived of parental guidance and education, have very little chances of mainstreaming and rehabilitations, with the provisions of the Juvenile Justice Act being reduced to words on paper.”

The Committee further said: “We are of the view that the 3 year period ((for which delinquent children are kept in the custody of Special Home) is cause for correction with respect to the damage done to the personality of the child. We are completely dissatisfied with the operation of children’s’ institutions. The sheer lack of counselors and therapy has divided the younger society into ‘I’ and ‘them’.” It is time that the State invested in reformation for juvenile offenders and destitute juveniles. There are numerous jurisdictions like the United Kingdom, Thailand, and South Africa where children are corrected and rehabilitated; restorative justice is done and abuse is prevented. We think this is possible in India but it requires a determination of a higher order.”

The Committee also delved into scientific factors relating to the adolescent brain development and found that adolescence is a period of significant changes in the brain structure and function and there is consensus among developmental neuroscientists on the nature of this change. Extensive references were made to Laurence Steinberg’s ‘A Social Neuroscience Perspective on Adolescence Risk-Taking Developmental Review, 2008 – Elsevier’. Specific mention were made regarding various relevant changes in the early adolescence to late adolescence and early adulthood such as decrease in grey matter in prefrontal regions of the brain, changes in activity involving the neurotransmitter dopamine having important implications for sensation-seeking, increase in white matter in the prefrontal cortex due to myelination which is important for higher-order cognitive functions, increase in the strength of connections between the prefrontal cortex and the limbic system which is especially important for emotion regulation etc.

Ultimately after a thorough evaluation of the issue, the Committee held that, “We are of the view that the material before is sufficient for us to reach the conclusion that the age of ‘juveniles’ ought not to be reduced to 16 years.”

Challenge against age limit of 18 years before the Supreme Court

In,Salil Bali v. Union of India (2013 (3) KLT SN 49 (C.No. 51) SC = 2013) 7 SCC 705), a 3 Judge bench comprising Altamas Kabir, C.J.I., Surinder Singh Nijjar and Chelameswar, J.J. heard and dismissed a bunch of Writ Petitions filed under Article 32 of the Constitution of India with prayers inter alia to strike down the provisions of Ss. 2(k) and (l) of the Juvenile Justice (Care and Protection of Children) Act, 2000, which fixes the age limit of juvenility as below 18 years. The Petitioners inter alia pleaded that in offences like rape and murder, juveniles should be tried under the normal law and not under the Special Act and to remove the protection granted to persons up to the age of 18 years under the Act. It is pertinent to note that while dismissing the petitions the Court made the following prudent observations:

“There is little doubt that the incident, which occurred on the night of 16th December, 2012, was not only gruesome, but almost maniacal in its content, wherein one juvenile, whose role is yet to be established, was involved, but such an incident, in comparison to the vast number of crimes occurring in India, makes it an aberration rather than the Rule. If what has come out from the reports of the Crimes Record Bureau is true, then the number of crimes committed by juveniles comes to about 2% of the country’s crime rate (Para 39).

The basis of fixing of the age till when a person could be treated as a child at eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, was Article 1 of the Convention of the Rights of the Child… In this regard, one of the other considerations which weighed with the legislation in fixing the age of understanding at eighteen years is on account of the scientific data that indicates that the brain continues to develop and the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully responsible for his actions. (Para 44)

The essence of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Rules framed thereunder in 2007, is restorative and not retributive, providing for rehabilitation and re-integration of children in conflict with law into mainstream society. The age of eighteen has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future. There are, of course, exceptions where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be re-integrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.” (para 48)

Later, another 3 Judges Bench of the Supreme Court comprising P. Sathasivam, CJ.I., Ranjana Prakash Desai and Ranjan Gogoi, JJ; inDr.Subramanian Swamy v. Raju, through Member, Juvenile Justice Board (2014 (2) KLT SN 24 (C.No.32) SC = AIR 2014 SC 1649), considered and dismissed petitions again in the context of the Nirbhaya incident seeking inter alia that the Serious offences having minimum punishment of seven years imprisonment and above be brought outside the purview of the Juvenile Justice Act and the same should be tried by an ordinary Criminal Court. The Court observed:

“The Act, as manifestly clear from the Statement of Objects and Reasons, has been enacted to give full and complete effect to the Country’s international obligations arising from India being a signatory to the three separate conventions delineated hereinbefore, namely, the Beijing Rules, the UN Convention and the Havana Rules……Also, that the Act is a beneficial piece of legislation and must therefore receive its due interpretation as a legislation belonging to the said category has been laid down by a Constitution Bench of this Court in Pratap Singh v. State of Jharkhand & Anr. (2005 (1) KLT SN 89 (C.No.115) SC = (2005) 3 SCC 551). In other words, the Act must be interpreted and understood to advance the cause of the legislation and to confer the benefits of the provisions thereof to the category of persons for whom the legislation has been made.”

“Classification or categorization need not be the outcome of a mathematical or arithmetical precision in the similarities of the persons included in a class and there may be differences amongst the members included within a particular class. So long as the broad features of the categorization are identifiable and distinguishable and the categorization made is reasonably connected with the object targeted, Art.14 will not forbid such a course of action. If the inclusion of all under 18 into a class called ‘juveniles’ is understood in the above manner, differencesinter se and within the under 18 category may exist. Art.14 will, however, tolerate the said position. Precision and arithmetical accuracy will not exist in any categorization. But such precision and accuracy is not what Art.14 contemplates.”

Thus the challenge before the Supreme Court against the Age limit of 18 years failed.

Age Aspect and the Trial of Heinous Offences Committed by Juveniles between 16 to 18 Years by the Children’s Court in the 2015 Act.

In the mean time, emotional pressure emanating from the mob reaction of the Nirbhaya incident, for treating/trying a Juvenile as adult for grave offences got heavier on the Government. On the forefront of the seekers of the amendment was the renowned economist, political wizard and a selective crusader against corruption Dr. Subramanian Swamy. Moreover Smt. Maneka Gandhi, Minister for Woman and Child Development, who has a track record for fiercely fighting for Animal rights, had been very vocally advocating from the beginning for a stringent law that would ‘deter’ the child citizenry of the country from committing grave offences. The objections raised by the subject experts/experts in child rights and Child Psychology were not seriously considered or deliberated. Ministry for Woman and Child Development activated by irrelevant considerations came with a draft bill to replace the Juvenile Justice Act 2000, against which many Parliamentarians cutting across party line raised objections and the bill was sent to Parliamentary Standing Committee for suggestions. Committee raised serious objections. But later minor eye wash changes were made in the bill and it was passed in the Lok Sabha on 7.5.2015 but the bill was kept pending for long without presenting the same before the Rajya Sabha. But the issue again came to limelight when the Juvenile involved in the Nirbhaya incident was released after completion of the 3 years reformative institutionalization. Seizing the opportunity the Government got all prudent voices muted and urgently brought the bill before the Rajya Sabha and got it passed on the 22nd day of December 2015 while Nirbhaya’s Parants were seated in the visitor’s gallery of the Rajya Sabha to watch the proceedings.

The 2015 Act further streamlined the procedure for Adoption and made certain improvements from the 2000 Act regarding the ‘care and protection’ aspect, which are welcome steps. The Act retains the Age of Juvenility/childhood at 18 years but the objectionable area is the one relating to relegating the child/juvenile between 16 to 18 years alleged to have committed a heinous offence (offences for which the maximum punishment prescribed is imprisonment for seven years or more) to the regular criminal system for adjudication by the Children’s Court, which is nothing but a regular Sessions Court designated so. The relevant provisions are contained in Ss.15 to 19.

Impugned Provisions

Section 2 (20) defines, as follows, “Children’s Court’’ means a court established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012, wherever existing and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act;

Sections 15 to 19 read as under:

15. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumustances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973:

Provided that the order of the Board to dispose of the matter shall be appleable under sub-section (2) of Section 101:

Provided further that the assessment under this section shall be completed within the period specified in Section 14.(i.e., 3 months)

(3) Where the Board after preliminary assessment under Section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.

19. (1) After the receipt of preliminary assessment from the Board under Section 15, the Children´s Court may decide that—

(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 and pass appropriate orders after trial subject to the provisions of this section and Section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;

(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of Section 18.

(2) The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the Probation Officer or the District Child Protection Unit or a social worker.

(3) The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:

Provided that the reformative services including educational services, skill development, alternative therapy such as counseling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.

Section 20 provides for evaluation of the reformative changes in the child and provides for his release in certain cases when he attains the age of 21 years, without sending him to jail.

Pitfalls in the Provisions

The above provisions are the result of a mindset which wrongly perceived that a child of 16 years can commit a crime as an adult of may be 25 years of age. It is a fallacious thought; a child can only be a child though by 16 or 18 years he might physically grow to 60 or 80 Kgs in weight but merely by that, in no case his mental maturity attributable to brain development would have grown proportionately. Trial of a child as an adult is a misnomer/malady. “Mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence” are very vague criteria and would always be judged from the ‘manifested heinousness’ of the act committed by the child and in practice mental maturity of the child will not get assessed though the Act provides on paper the assistance of experienced psychologists or psycho-social workers or other experts in this exercise moreover it is a matter of common knowledge that our country does not have sufficient numbers of such ‘experts’. The level of mental/intellectual maturity in any given case cannot be determined with any degree of accuracy and precision and the results are prone to vary from case to case and from individual to individual. A system which provides for an option to refer a juvenile to a regular Court, therefore, cannot be accepted as fair and would be vitiated by arbitrariness as no objective basis for such reference can exist. Such decisions/‘judicial waiver of jurisdiction over the child’ by the Juvenile Justice Boards are prone to be subjective rather than objective. The unfortunate child would be unnecessarily put to the ordeal twice, first before the Board and again before the Children’s court with the formal settings of the adversarial judicial system, though the Act prescribes that the proceedings shall be child friendly, it is doubtful if in practice it would be so (in the context, it may be noted that 2000 Act jealously guarded our children from exposure to formal court settings). Again there is also a provision for Appeal to Sessions Court against the order sending the case to Children’s Court and in the complicated processes the reformative and rehabilitative chances of the unfortunate child would get minimized. Mostly the designated Children’s courts are presided over by Principal Sessions Judges who are heavily preoccupied by administrative and other onerous judicial works and many of them though Senior Judicial Officers, would not have any special inclination required in dealing with ‘child in conflict with law’ or special knowledge as to child psychology. The Juvenile Justice Board constituted as per S.4 comprising of a Judicial Officer and two Social Workers with prescribed qualifications is more of a specialized body which would be better equipped to deal with graver cases of a deviant child in conflict with law. Such a specialized Board sending the graver cases which require better attention to the less equipped ‘Children’s Court’ manned by a busy single person does not augur well with the underlying compassionate reformative and rehabilitative principles we hitherto had in our Juvenile Justice system. A provision for an appeal to the ‘Children’s Court’ from the final decision of the Board would have sufficed.

Conclusion

Bringing in of the above provisions for referring certain cases involving a child to the regular judicial system was a kneejerk reaction to appease the emotional mob frenzy sections of our population. It would have been better of if the Government had focused more on the practical aspects of prevention, reformation, rehabilitation and social reintegration which are writ large on paper in our Juvenile Justice System. As put by Sanjay Hegde, Supreme Court Lawyer: “Has Nirbhaya’s death necessitated harsh laws to deal with India’s young people or have we elders failed our succeeding generations of youngsters by exposing them to adult penalties?”

Let us keep our fingers crossed and wait to see how our Supreme Court is going to evaluate the above provisions on the touchstone of our great and dynamic Constitution and India’s international obligations especially under the UN Convention on the Rights of the Child (UNCRC) 1989.

The Poem, ‘The Child’s Appeal’ by Mamie Gene Cole, exclaims:

“I am the child,

All the world waits for my coming.

All the earth watches with interest to see what I shall become.

Civilization hangs in the balance.

For what I am, the world of tomorrow will be….

I am the child.

You hold in your hand my destiny.

You determine, largely, whether I shall succeed or fail,

Give me, I pray you, these things that make for happiness.

Train me, I beg you, that I may be a blessing to the world”.

Is there any one to hear the Appeals of our Children?

Is the High Court Right in Re-affirming that Sections 437(5) and 439(2) Cr.P.C. are not Provisions for Cancellation of Bail?

By V. Ramkumar, Former Judge, High Court of Kerala

05/02/2016

Is the High Court Right in Re-affirming that Sections 437(5) and 439(2) Cr.P.C. are not Provisions for Cancellation of Bail?

(By V. Ramkumar, Former Judge, High Court of Kerala)

In my humble opinion, it is without properly appreciating the distinguishing mechanics behind the processes of “setting aside a bail order,” “forfeiture of bail bond resulting in cancellation of bail bond" and “cancellation of bail", that the High Court of Kerala once again fell into an error in Intelligence Officer, Narcotics Control Bureau v. Lijo K. Jose (2015 (4) KLT 981). (“NCB case" for short ). In paragraph 18 of the NCB case, this is what has been asserted:-

“18. This Court had an occasion to consider the aspect as to whether the provisions contained under S.439(2) Cr.P.C. are relating to cancellation of bail? Still, this Court is of the view that the said provision contained in the Code of Criminal Procedure is not for cancellation of bail in all matters.The powers granted to Magistrates under S.437(5) Cr.P.C. and the power granted to the Sessions Court as well as the High Court under S.439(2) Cr.P.C. are not for cancellation of bail in all circumstances. Of course, when those powers are lawfully exercised within the meaning and spirit of those provisions, it may result in a situation wherein such an order has the effect of an order of cancellation of bail. The impact of orders under the said provision may result in an order which is having an impact of the cancellation of bail. When the legislature does not specifically show that those powers are powers for cancellation of bail, this Court is of the firm view that the said provision may not be made use of in all circumstances, for cancellation of bail.” (emphasis supplied)

The learned Judge is emphatically reiterating his own view which was already taken in James George @ Basaliyos Marthoma Yakob Pradaman v. State of Kerala
(2015 (4) KLT 310) wherein it was observed that Sections 437(5) and 439(2) Cr.P.C. are not meant for cancellation of bail. But this time, there is a slight relaxation made to concede that the aforesaid provisions can be invoked for cancellation of bail in certain circumstances. Law, without any rider, cannot be so imprecise and ambiguous as to be applicable to certain situations only.

2. The Apex Court has unhesitatingly understood the above sections as the appropriate provisions for cancellation of bail, at least in 41 reported cases. Even the extracts from the Supreme Court relied on by the learned Judge in NCB case unmistakably state that the above provisions are meant for cancellation of bail. It is pertinent to note that the aforementioned view of the learned Judge in James George (supra) was refused to be followed by another learned Judge of the High Court in Mahesh K. alias Battampura Mahesh v. Station House Officer, Kasargode Police Station & Anr. (2016 (1) KLT 325) in the light of the decision of a Division Bench ruling of the High Court in Latheef @ Abdul Latheef v. State of Kerala(2011 (2) KLT 231) wherein it was pointedly held that Section 437(5) Cr.P.C. is the source of power for the Magistrate to cancel the bail granted by the Magistrate under Section 437(1) and (2) Cr.P.C.

3. In the NCB case, the High Court was mainly considering the question whether the Sessions Judge who had granted bail to certain accused persons for offences, inter alia, involving commercial quantity of narcotic drugs under the N.D.P.S. Act, 1985 allegedly without giving the Public Prosecutor an opportunity of being heard, could itself entertain petitions for cancellation of bail. In my view the learned Judge has rightly concluded that the High Court (superior court) alone could entertain a petition for setting aside the bail order and that approaching the very same court with applications for cancellation of bail, was misconceived. But what is objectionable is certain observations made which are capable of creating confusion in the minds of officers of the subordinate Judiciary.

4. Before proceeding further, it may be profitable to notice the distinction between the following:-

i) an order granting bail or refusing (or rejecting) bail;

ii) an application for setting aside an order grating bail.

iii) forfeiture of bail bond and resultant cancellation of bond;

iv) application for cancellation of bail.

Order granting or refusing (rejecting) bail

5. Depending on the gravity of the offence, stringent provisions, if any, in the special law governing the case, the nature, potential and antecedents of the offender, the duration of custody, if any, and such other relevant factors the Court may or may not grant bail to an accused person either during the stage of investigation, inquiry or trial of the case. This order is not appealable under the Cr.P.C. (Vide State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Others (AIR 2003 SC 3224)and Narendra K. Amin (Dr.) v. State of Gujarat(2008) 13 SCC 584 (3 Judges). But in cases where bail is granted by the High Court, appeals are seen filed before the Supreme Court by the State Governments concerned. (Vide para 20 of Narendra K.Amins’ case (supra) and State of Kerala v. Raneef (2011 (1) KLT 242 (SC) =AIR 2011 SC 340). A revision against the grant of bail may also lie. (See Prasad Jacob v. State of Kerala (2010 (2) KLT SN 70 (C.No.68) =2010 Crl. L.J. 4137 (Ker.).

Application for Setting aside an Order Granting Bail

6. When bail has been granted by a Court in a case in which bail ought not to have been granted either due to a legal bar or due to non-compliance with a condition precedent such as mandatory hearing of the Public Prosecutor or by flouting a special provision in the penal statute concerned or due to the extreme gravity of the offence endangering public order or the security of the State, a superior Court, if moved, can set aside the order granting bail and it may virtually have the effect of cancelling the bail. But here, the superior Court is really setting aside and not cancelling the bail order due to reasons which already existed initially at the time of granting bail and not due to any post-bail event.

Forfeiture and the resultant cancellation of the bail bond

7. If the bond executed by an accused person is for appearance, then forfeiture of the bond takes place automatically in view of Forms 45 and 48 of the Second Schedule to Cr.P.C., when such person does not appear before Court on the specified day, unless of course, his absence for the day is excused by the Court under Section 317 Cr.P.C. The only legal consequence of such forfeiture, by virtue of Section 446 Cr.P.C., is the liability to pay penalty which such person (and his surety, if any) had undertaken to forfeit to the Government in the contract executed by them in Form No. 45 referred to above. In paragraphs 21 and 22 of the NCB case, the learned Judge has observed as follows:-

“21. As per the said provision, where a bond under the Code is for appearance of a person in a case, and it is forfeited for breach of a condition, the powers under S.446A(a) as well as (b) can be invoked. It may not be understood that the breach of that condition which results in forfeiture of the bond and bail bond is not confined to the breach of the condition for appearance only. The wordings of the provision “where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition” clearly indicates that the forfeiture will result even in violation of conditions other than the conditions for appearance also. At the same time, such a forfeiture of a bond under S.446A should be one executed for the appearance of a person in a case. Therefore, it is evident that in cases wherein an accused who is enlarged on bail, executes a bond for appearance in a case, commits breach of any of those conditions contained in the order granting bail, forfeiture of the bond as well as bail bond is possible. At the same time, in all such cases, it may not be just, in forfeiting the bonds of the sureties also.

22. Let us take a case wherein a condition has been incorporated in the order grating bail that he shall not involve in any offence while on bail. In such a case, even if such an accused who is enlarged on bail through the order happens to become an accused in another case, it will not be just in forfeiting the bond executed by the sureties and asking them to pay the penalty. There can be breach of other similar conditions also. Except the violation of the condition for the appearance of the accused in that case, the sureties cannot be called upon to pay the penalty after forfeiting their bonds. At the same time, on account of the violation of any of such conditions, the bail of the accused happens to be cancelled and in such case, the accused fails to appear before the court in the case, it paves the way for the forfeiture of the bonds of the sureties, and it will ultimately entail in an order for payment of penalty by the sureties also.”

8. If we closely examine Section 446-A Cr.P.C. it will be clear that there is no warrant for the conclusion that forfeiture of a bond (for appearance) can result from the violation of a condition other than one for appearance. When as per the statutory scheme under the Cr.P.C., forfeiture of a bond (for appearance) takes place consequent on a breach of the condition for appearance, there is an automatic cancellation of the bond itself by virtue of Section 446-A Cr.P.C., disentitling the accused to be released only on his own bond unless the Police Officer or the Court decides to proceed under the proviso to Section 446-A Cr.P.C. by releasing him on fresh bail. But the wording in Section 446-A Cr.P.C. which reads :

“Where a bond under this Code is for appearance of a person in a case and it is forfeited for the breach of a condition” cannot be understood to mean that forfeiture of the bond for appearance can take place even for the breach of any condition other than one for appearance. By virtue of Form Nos. 45 and 48 (unless suitably modified by the High Court under Article 227 of the Constitution of India and Section 477 Cr.P.C.) which are the Forms to be used for this purpose in view of Section 476 Cr.P.C., forfeiture of a bond (for appearance) is contemplated only in cases of non-appearance of the accused and in no other contingency. Form No. 3 prescribed by the High Court under Appendix I to the Criminal Rules of Practice, Kerala, 1982 is also on similar lines as Form No. 48 referred to above. Hence no other mode of forfeiture is contemplated by the Cr.P.C. If so, the question of any injustice in asking the sureties to pay the penalty consequent on the accused committing breach of a condition other than one for appearance, does not arise. The learned Judge is not quite right in observing that when a bond for appearance is forfeited for breach of a condition, the powers under Section 446-A (a) and (b) can be invoked. There is no question of the Court invoking either clause (a) or clause (b) of Section 446-A of Cr.P.C. Under clause (a) the cancellation of the bond consequent on the forfeiture, takes place automatically. Clause (b) is also not a provision for invocation by the Court. It is really an interdict not to release the person who had committed breach of the condition for appearance. It is the proviso thereto which the Court can invoke in an appropriate case.

9. There is a practice in some Courts to secure the presence of the accused through a warrant of arrest consequent on the forfeiture and resultant cancellation of the bail bond and thereafter enlarging the accused on fresh bond with sureties, without insisting on a fresh application and order for bail. Technically speaking , the said practice cannot be said to be illegal since the earlier order granting bail remains intact even after the bail bond stands cancelled. The situation will be analogous to one where the court orders release of the accused on bail, but he does not execute a bail bond, with the only difference that in such a case the accused is yet to be released.

Cancellation of Bail

10. Cancellation of bail has to be distinguished from cancellation of a bond for appearance although the consequence of cancellation may be the same so far as the accused is concerned. Just as bail of a person in custody can be granted under Section 437 Cr.P.C. only on the existence of sufficient grounds, as detailed in paragraph 5 above, cancellation of bail already granted, can only be on grounds mainly attributable to the conduct of the accused at the post-bail stage, such as his misusing the liberty granted to him by attempting to tamper with the evidence or influencing or intimidating the witnesses, or indulging in grave crimes while on bail or placing himself beyond the reach of his sureties by going abroad without the permission of the Investigating Officer or Court or violating any of the bail conditions etc. In other words, the grounds for cancellation of bail should be referable to the conduct of the accused after he has been enlarged on bail. (Vide Nityanand Rai v. State of Bihar (2005) 4 SCC 178 = AIR 2005 SC 2239). When any of the above grounds are present, the Court may resort to the power under section 437(5) Cr.P.C. if it is the Magistrate or under Section 439(2) Cr.P.C. if it is the Court of Session or the High Court. The Court which granted bail can itself invoke the appropriate provision for cancelling the bail if an application in that behalf is filed or on its own motion. Just as a Magistrate can have recourse to Section 437(5) Cr.P.C. and cancel the bail granted by the Magistrate himself, a Sessions Judge or the High Court can similarly exercise the power under Section 439 (2) Cr.P.C.

11. Still another instance of cancellation of bail recognized by the Apex Court is where the facts of the case are such that no court would have granted bail, but the inferior Court has wrongly granted bail. If the order granting bail is perverse for the reason that irrelevant material of a substantial nature has been taken into account or relevant material has been omitted from consideration while grating bail, that will be a fit case in which a superior Court would be justified in cancelling the bail. (Vide Dinesh M.N. (SP) v. State of Gujarat (2008 (3) KLT Suppl.1397 (SC) =(2008) 5 SCC 66 (3 Judges); Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13 SCC 584 – (3 Judges); Prasad Jacob v. State of Kerala (2010 (2) KLT SN 70 (C.No. 68) = 2010 Crl. LJ 4137 (Ker.). Eventhough the Apex Court has used the expression “cancellation of bail” in such contingencies, really the remedy is against the order grating bail and such order can be set aside (loosely called “cancelled”) only by a superior Court.

Manushyavakasa Kodathikal Enthinu?

By O. Harris, Advocate, Kayamkulam

05/02/2016

a\pjym-h-Imi tImS-Xn-IÄ F´n\v?

(H.lm-cnkv, AUzt¡ä v, Imbw-Ip-fw)

\n§Ä a\p-jy-\m-b-Xp-sImIv am{Xw hen-b-h-\m-Ip-¶nÃ

a\p-jy-Xz-ap-Å-h-\m-Ip-t¼m-gmWv hen-b-h-\m-Ip-¶Xv

--almßm KmÔn

a\pjymhImi ewL-\-§-fp-ambn _Ô-s¸« tIkp-I-fnÂ AXn-thK hnNm-cW Dd-¸p-h-cp-¯m-\mbn FÃm PnÃ-I-fnepw a\p-jym-h-Imi tImS-Xn-IÄ Øm]n-¡-W-sa¶v kp{]ow-tIm-SXn D¯-c-hn-«n-cp-¶p. tImSXn Øm]n-¡p-¶-Xn\v tI{µ-kÀ¡mcpw kwkvYm-\-§fpw ap³ssI-s¿-Sp-¡-W-sa¶v tImSXn Ah-iy-s¸-«p. XS-hp-Im-cpsS a\p-jym-h-Imiw kwc-£n-¡m³ cmPys¯ FÃm Pbn-ep-I-fnepw kn.-kn.-Sn.hn Iyma-d-IÄ Øm]n-¡m³ kp{]ow-tIm-SXn asämcp D¯-c-hneqsS kÀ¡m-cnt\mSv \nÀt±-in-¨n-«p-Iv. kwØm-\-§-fnse t]meokv tÌj-\p-I-fnepw tem¡-¸p-I-fnepw \nco-£W Iymad Øm]n-¡p¶ Imcyw kwØm\ kÀ¡mÀ ]cn-K-Wn-¡-W-sa¶pw tImSXn \nÀt±-in¨p. ]c-am-h[n cIp-hÀj-¯n-\p-Å-nÂ Pbnep-I-fnÂ kn.-kn.-Sn.hn Iyma-d-IÄ Øm]n-¡p¶ \S-]SnIÄ ]qÀ¯n-bm-¡-Ww. Hmtcm t]meokv tÌj-\nepw Npcp-§n-bXv cIv h\nXm tIm¬Ì-_nÄamsc F¦nepw \nb-an-¡-Ww. FÃm tI{µ-`-cW {]tZ-i-§-fnepw Nne kwØm-\-§-fnepw CXp-hsc a\p-jym-h-Imi I½o-j³ cq]o-I-cn-¡m-¯-XnÂ tImSXn BÝcyw tcJ-s¸-Sp-¯n. kwØm-\-§-fnse a\p-jym-h-Imi I½o-j-\nse Hgn-hp-IÄ \nI-¯-W-sa¶v Bh-iy-s¸«v kp{]ow-tIm-S-Xn-bnÂ kaÀ¸n¨ s]mXp-Xm-ev]-cy-lÀPn ]cn-KWn-¡sh PÌnkv Sn .Fkv. Tm¡qÀ, PÌnkv BÀ.-`m-\p-aXn F¶n-h-c-S-§nb _©mWv D¯-c-hn-«-Xv.

FÃm a\p-jyÀ¡pw kaq-l-¯nÂ am\y-ambn A´-tÊmsS Pohn-¡p-¶-Xn\v Ah-k-chpw Xpey-\o-Xnbpw e`y-am-¡m-\mWv B[p-\nI temI¯v a\p-jym-h-Ii \nb-a-§Ä \nÀ½n-¨n-cn-¡p-¶-Xv. A´m-cmjv{S a\p-jym-h-Imi {]Jym-]-\-§fpw am\hnI kml-N-cy-amWv DÂtLm-jn-¨n-«p-Å-Xv. a\p-jyÀ At[m-K-Xn-bnÂ \n¶pw ]ptcm-K-Xn-bn-te¡v IpXn-¡sh NneÀs¡-¦nepw Cu {]bm-W-¯nÂ {]bm-k-§Ä t\cn-Sp-¶-Xmbn hcpw. AXv CÃm-Xm-¡p-¶-Xn-te-¡m-bn-«mWv
hnI-knX cmPy-§-f-S¡w s]mXp-k-aqlw A´m-cmjv{S DS-¼-Sn¡pw {]Jym-]-\-§¡pw apXnÀ¶-Xv. kmaq-lnI \·-Ifpw aqey-§fpw A\p-`hn-¡p-¶-Xn\v cmjv{S-¯nse ]uc-·mÀ¡v Ah-k-c-§Ä Dd-¸m-¡p-¶-XmWv a\p-jym-h-Im-i-§Ä.

kaq-l-¯nÂ kzm[o-\hpw k¼-¯n-Ãm-¯-hÀ¡pw F-Xnsc cmPyamk-Iew `-W-Iq-S-¯nsâ ]n´p-W-tbmsS A[n-Imcn hÀ¤w \-S-¯p¶ It¿-ä-§fpw IS-¶m-{I-a-W-§fpw {Iam-Xo-X-ambn hÀ²n-¨-t¸m-gmWv 1993 Â \½psS ]mÀe-saâv a\p-jym-h-Imi kwc-£W \nbaw ]mkm-¡n-b-Xv. \nb-a-¯nse hnhn[ hIp-¸p-IÄ {]Imcw tZiob a\p-jym-h-Imi I½o-j\pw kwØm\ a\p-jym-h-Imi I½o-j\pw Nne kwØm-\-§-fnse¦nepw cq]o-I-cn-s¨-¦nepw \mfn-Xp-hsc cmPy¯v Hcn-S¯v t]mepw a\p-jym-h-Imi tImS-XnIÄ Øm]n-¨n-«n-Ã.

a\p-jym-h-Imi \nbaw 30þmw hIp¸v {]Imcw a\p-jym-h-Im-i-ew-L\ tIkp-I-fnÂ AXn-thK XoÀ¸v IÂ¸n-¡p-¶-Xn-te¡v Hmtcm PnÃ¡pw Hcp sk£³kv tImS-Xnsb a\p-jym-h-Imi tImS-Xn-bmbn hnÚm-]\w sN¿p-sa¶pw AX-sÃ-¦nÂ PnÃ-bnÂ Hmtcm {]tXyI a\p-jym-h-Imi tImSXn Øm]n-¡W-sa¶pw AXn-te¡v ]»nIv t{]mkn-Iyq-«-sdtbm kvs]jyÂ t{]mkn-Iyq-«-sdtbm \nb-an-¡m-sa¶v hyh-Ø-bp-sI-¦nepw CXp-hsc AXp-Im-bn-«n-Ã. sslt¡m-SXn No^v PÌn-knsâ k½-X-t¯msS kwØm\ kÀ¡mÀ CXn\v thI\S-]-Sn-IÄ kzoI-cn-¡m-¯-XmWv Imc-Ww. kÀ¡mÀ hnÚm]\-¯n-eqsS ]cn-l-cn-¡m-hp-¶-Xm-Wv CXv.

FÃm-a-\p-jycpw kzmX-{´-cmbn P\n-¡p-I-bpw- ]-Z-hn-bnepw Ah-Im-i-§-fnepw XpeyX ]peÀ¯p-Ibpw sN¿p-¶p. AhÀ _p²nbpw a\-Êm£nbpw sImIv A\p-{K-lo-Xcpw ]c-kv]cw ktlm-Zcyw ]peÀ¯m³ \nÀ_-Ôn-X-cp-am-sW¶v BtKmf a\p-jym-h-Imi {]Jym-]-\-¯nÂ Du¶n-¸-d-bp-¶p. PmXn, aXw, hÀ®w, enwKw, {]tZ-iw, `mj, kwkvImcw F¶o hyXym-k-§Ä¡-Xo-X-ambn hyàn-Isf a\p-jy-cmbn IIv Aw-Ko-I-cn-¡p-¶-Xn-s\-bmWv a\p-jym-h-Imiw F¶v ]d-bp-¶-Xv. `£WamWv ASn-Øm\ a\p-jym-h-Imisa¶v KmÔnPn ]d-ªp. kz´w PohnXw F¶-t]mse A\y-Po-hn-X-§-sfbpw kwc-£n-¡m¯ HcmÄ¡pw a\p-jym-h-Imiw kwc-£n-¡m-\m-hn-Ã. ka-Xzw, kzmX-{´yw, \oXn, kam-[m\w F¶o- aq-ey-§-fpsS {]Nm-cWamWv a-\p-jym-h-Imi {]Jym-]-\-¯nsâ {][m-\- e-£yw.

FÃm ap-jyÀ¡pw kaq-l-¯nÂ am\y-ambn Pohn-¡m-\pÅ Ah-k-chpw Xpey-\o-Xn-bp-d-¸p-amWva\p-jym-h-Imi \nbaw {]mY-an-I-ambn hn`m-h\w sN¿p-¶-Xv. FÃm a\p-jyÀ¡pw -_m-[-I-amb coXn-bnÂ \oXn \S-¸m-¡p-¶-hn-[-¯n-ep-Å-Xm-bn-cn-¡Ww a\p-jym-h-Imi \nb-a-§Ä. ]Àiz-hÂ¡-cn-¡-s¸-Sp-Ibpw ]oUn-¸n-¡-s¸-Sp-Ibpw sN¿p¶ ZpÀ_e P\-hn-`m-K-§Ä¡v AÀl-X-s¸« \oXn \S-¸m-¡p-hm³ a\p-jym-h-Im-i-\n-baw A\p-im-kn-¡p-¶p. ]oUn-¸n-¡-en\pw {Iqc-Xbv¡pw
a\p-jy-Xz-c-ln-Xhpw A´-ÊvsI-«-Xp-amb s]cp-am-ä-¯n-\p-sa-Xnsc kwc-£Ww Dd-¸m-¡n-s¡m-IpÅ a\p-jym-hImi DS-¼-Sn-bnse hyhØ \½psS `c-W-L-S-\bnse 21þmw A\-tÑZw AwKo-I-cn-¡p-¶p. `qan-im-kv{X-]-c-amb FÃm AXn-cp-IÄ¡p-a-¸p-d-amWv a\p-jym-h-Im-iw. a\p-jym-h-Im-i-§-fpsS \oI]«nI \½psS `c-W-L-S-\-bn-ep-sI-¦nepw Ah kwc-£n-¡p-¶-Xn\v `-c-W-IqSw apt¶m«v hcp-¶n-Ã. FÃm taJ-e-bnepw ISp¯ a\p-jym-h-Im-i- ew-L-\-§-fmWv ImWm³ Ign-bp-¶Xv.

F{X ià-amb \nb-a-am-sW-¦nepw \nb-a-\nÀÆ-l-W-¯nse t]mcm-bva-Ifpw DZm-ko-\-X-bp-amWv a\p-jym-h-Imi ewL-\-§Ä¡v {][m\ Imc-W-§Ä. hn]Wn kwkvIm-chpw A[oim-[n-Imc Nq-j-Whpw Agn-a-Xnbpw a\p-jym-h-Im-i-ew-L-\-§Ä¡v {]tNm-Z-\-am-Im-dp-Iv.

a\p-jyÀ¡v thIn X¿m-dm-¡nb \nb-a-§-sf-¸än Adn-bm-Xn-cn-¡-pIbpw, Ah {]Ncn-¸n-¡m-Xn-cn-¡p-Ibpw sN¿p-¶Xv asäm-cp-Xcw \nb-a-ew-L-\-¯n-\pÅ Ah-k-c-wkrjvSn-¡p-I-bm-Wv. \nb-a-mht_m-[-apÅ kaqlw cq]-s¸-Sp-Ibpw ]ucm-h-Im-i-§Ä¡v thIn ià-amb \ne-]m-Sp-IÄ t\cmb amÀ-¤¯nÂ ssIs¡m-Åp-Ibpw sNbvXmÂ am{Xta a\p-jym-h-Imi e£y-§Ä¡v Adp-Xn-h-cp-I-bp-Åq. a\p-jym-h-Imi tImS-XnIÄ Cu hgn-¡p-ff Nph-Sv sh¸m-I-s«.

Is the High Court Right in Re-affirming that Sections 437(5) and 439(2) Cr.P.C. are not Provisions for Cancellation of Bail?

By V. Ramkumar, Former Judge, High Court of Kerala

21/01/2016

Is the High Court Right in Re-affirming that Sections 437(5) and 439(2) Cr.P.C. are not Provisions for Cancellation of Bail?

(By V. Ramkumar, Former Judge, High Court of Kerala)

The learned Judge is emphatically reiterating his own view which was already taken in James George @ Basaliyos Marthoma Yakob Pradaman v. State of Kerala (2015 (4) KLT 310) wherein it was observed that Sections 437(5) and 439(2) Cr.P.C. are not meant for cancellation of bail. But this time, there is a slight relaxation made to concede that the aforesaid provisions can be invoked for cancellation of bail in certain circumstances. Law, without any rider, cannot be so imprecise and ambiguous as to be applicable to certain situations only.

4. Before proceeding further, it may be profitable to notice the distinction between the following:-

i) an order granting bail or refusing (or rejecting) bail;

ii) an application for setting aside an order grating bail.

iii) forfeiture of bail bond and resultant cancellation of bond;

iv) application for cancellation of bail.

Order granting or refusing (rejecting) bail

Application for Setting aside an Order Granting Bail

Forfeiture and the resultant cancellation of the bail bond

Cancellation of Bail