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IN THE HIGH COURT OF DELHI AT NEW DELHI
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W.P.(C) 11511/2015 & C.M.No.30441/2015 C.M.No.30441/2015 (stay) DR. SUBRAMANIAN SUBRAMANIAN SWAMY
..... Petitioner
Versus RAJU THROUGH: JUVENILE JUSTICE BOARD & ORS.
..... Respondents Respondent s
Counsel for the petitioner: Petitioner in person. Counsel for the respondents respondents: Mr.Sanjay Jain, ASG with Mr.Jasmeet Singh, CGSC, Ms.Ragini Singh, Ms.Rajul Jain, Mr.Sarfaraz Ahmad, Mr.Srivats, Advs. for UOI. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE JAYANT NATH ORDER 18.12.2015
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Ms.G.ROHINI, CHIEF JUSTICE
1.
The issue "whether a juvenile in conflict with law, who is found to have
committed an offence and sent to Special Home by Juvenile Justice Board, can be released on expiry of the period of stay ordered without ascertaining the factum of reformation that is necessary for his social reintergration" is sought to be espoused in this petition filed as Public Interest Litigation. 2.
Section 15 of the Juvenile Justice (Care & Protection of Children) Act,
2000 (for short 'the Act') provides for orders that may be passed by the Juvenile
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Justice Board regarding a juvenile juvenile who has committed committed an offence. The most stringent of the orders that can be passed under Section 15 is directing the juvenile to be sent sent to a Special Home Home for a maximum maximum period of three years. 3.
Contending that the scheme of the Act is silent about the mechanism to
ascertain the reformation of the juveniles sent to the Special Home, particularly, particularly, the juveniles who had committed heinous crimes like rape, before releasing them from the Special Home and apprehending that release of such juveniles at the end of the stay in the Special Home would be a menace to the society, the present petition is filed seeking a writ, order or direction:
“(a) laying “(a) laying down an authoritative interpretation of Sections 15 and 16 of the Act, so as to supply the lacuna therein; and (b) to pass an order that such unreformed juvenile not be released until it is demonstrably assured that he has reformed, ceased to be radicalised and is not a menace to society.” 4.
So far as the facts of the case are concerned, it is alleged in the petition
that the respondent No.1 herein, who was convicted in Nirbhaya gang rape case, continues to be unreformed and indeed has become radicalised by association with another juvenile convicted for his involvement in Delhi High Court blast case on 07.09.2011, during his stay in Special Home. 5.
Pointing out that the object of the Act is to provide for care, protection,
development and rehabilitation of neglected and delinquent juveniles, it is submitted by Dr. Subramanian Swamy, the petitioner appearing in person, that the respondent No.1, who has committed a serious crime of brutal gang rape
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cannot be released until it is demonstrably assured that he has reformed during his stay in Special Home. 6.
Since the three years of the incarceration of the respondent No.1 expires
on 20.12.2015, the petitioner seeks an interim direction to continue the incarceration of the respondent No.1 during the pendency of the present writ petition or until it is assured that he has demonstrably demonstrably reformed, ceased to be radicalised and is not a menace to society. 7.
When the matter came up for admission on 11.12.2015, we passed the
following order: “1. Mr.Jasmeet Singh, the learned Standing Counsel for Central Government accepted notice for the respondents No.2 and 3. He also undertakes to serve notice on the respondent No.1 through the Juvenile Justice Justice Board, Delhi. Notice Dasti Dasti as well. 2. The learned standing counsel has placed before this Court the reports of the Intelligence Bureau relating to the behaviour of the respondent No.1 during his stay in Special Home. The same be circulated in a sealed cover for perusal of the Court. 3. Call on 14.12.2015 by which date, the learned standing counsel shall take instructions as to the measures if any taken by the Management Committee regarding the post release follow up of the respondent No.1 as provided under Rule 55 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. A copy of the order be given dasti under the signature of the Court Master.” Master. ”
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8.
On 14.12.2015, Shri Sanjay Jain, the learned ASG has appeared on
behalf of the respondents 2 & 3 and placed before this court the letter received from the Additional Director, Department of Women and Child Development, Government of NCT of Delhi dated 12.12.2015 wherein the Ministry of Home Affairs has been informed that the respondent No.1 who has now turned an adult after passage of his stay in place of safety after completing the sentence awarded to him by the Juvenile Justice Board has been regularly counselled by the Counsellors Counsellors of Mental Health Unit. The details of the vocational vocational skills imparted to the respondent No.1 have been furnished and the proposed rehabilitation plan plan has also been indicated. indicated. The learned ASG has has also produced the Individual Care Plan of the respondent No.1 that was maintained at the Special Home in terms of Rules 50(12), 54(1)(o) and 87(1)(k) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. 9.
Shri Sanjay Jain, the learned ASG, however, would submit that the stay
of the respondent No.1 in the Special Home needs to be extended since there is no material to establish the mental state of the respondent No.1, more particularly, particularly, in the absence of any specific proposal for his post-release post-release rehabilitation as required under the statutory rules. 10.
Though we have directed notice to the respondent No.1 through the
Juvenile Justice Board, none appeared on behalf of the respondent No.1 to enable us to ascertain the views of the respondent No.1 regarding his social mainstreaming.
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11.
Be that that as it may, may, having regard regard to the the fact fact that that the maximum maximum stay that
can be directed in the Special Home under Section 15(1) of the Act is three years and that the respondent No.1 would be completing the period of three years by 20.12.2015, there cannot be any direction to continue his stay in the Special Home Home beyond 20.12.2015. 20.12.2015. Hence, we decline to issue any direction as prayed by the petitioner. petitioner. 12.
However, we have observed that the Juvenile Justice (Care & Protection
of Children) Rules, 2007 contain various provisions regarding post-release follow up and post-release rehabilitation programme of the juveniles after release from Special Home. 13.
Rule 17(3) provides that the release shall be as per the pre-release and
post-release plan prepared under the Individual Care Plan and reviewed from time to time by the Management Committee set up under Rule Rule 55. Rule 50(12) provides for developing an individual care plan with the ultimate aim of the child being rehabilitated and reintegrated based on their case history, circumstances and individual individual needs. needs.
Such individual individual care care plan specifically specifically
needs consultation with the concerned juvenile while determining his care plan. Rule 55 makes it mandatory for the Management Committee to consider and review periodically post-release or post restoration follow up. Rule 65 also provides for a detailed procedure pro cedure of restoration of the juvenile back to the family and the follow-up action by the Juvenile Justice Justice Board. It also includes includes when a juvenile expresses his unwillingness to be restored back to the family, the Board shall make a note of it in its records in writing and such juvenile shall not be
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coerced or persuaded to go back to the family, particularly, if the social investigation report of the Child Welfare Officer or Probation Officer establishes that restoration to family may not be in the best interest of the juvenile or if the parents or the guardians refuse to accept the juvenile back. The said Rule also provides for submitting a quarterly follow-up report to the JJB by the concerned Child Welfare Officer or Probation Officer or the non-governmental organization for a period of two years. The follow-up report shall shall clearly state the situation of the juvenile post restoration and the juvenile’s needs to be met by the State Government in order to reduce further vulnerability of the juvenile. 14.
In the light of the above-noticed statutory provisions, we direct direct that the
Juvenile Justice Board-II, Delhi shall interact with the respondent No.1, his parents/guardians as well as the concerned officials of the Department of Women Wo men and Child Development, Govt. of NCT of Delhi regarding the post-release rehabilitation and social mainstreaming of the respondent No.1 and pass appropriate orders in accordance with the provisions of the Act and Rules. 15.
Since we are of the view that the legal legal issue raised in the main writ petition,
i.e., the need for ascertaining the factum of reformation of the juveniles in conflict with law before they are released from the Special Home on expiry of the period of stay ordered by the Juvenile Justice Board, is a larger issue of public importance which requires deeper consideration, we direct the respondents 2 and 3 to file file their response response within eight weeks from today.
We also consider consider it
appropriate to implead the Govt. of NCT of Delhi, Department of Women and Child Development as respondent No.4 to this this petition. Notice be issued to to Govt. of NCT of Delhi, Department of Women and Child Development/respondent
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No.4, who shall also file the necessary response within the time mentioned above. The amended memo of parties be filed by the petitioner within one week from today. 16.
CM No.30441/2015 shall stand disposed of in terms of the directions in
Para 14 (supra). 17.
The main petition be listed on 28.03.2016.
CHIEF JUSTICE
JAYANT NATH, J DECEMBER DECEMBER 18, 2015/kks
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