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Prabakaran vs State Of Tamilnadu on 18 March, 2003- Madras High Court

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NATIONAL LEGAL RESEARCH DESK

IN THE HIGH COURT OF JUDICATURE AT MADRAS / DATED: 18/03/2003 / W.P.No. 4511 of 2003

The Madras High Court observed in this case that rights of a child are an integral part of human rights, yet protagonists of human rights hardly ever focus their attention to the exploitation and abuse of the rights of a child. “Human rights issues basically revolve around excesses by Police or Security Agencies, wrongful incarceration etc. The media also rarely highlights exploitation of children’s rights…”

“May be the offence committed by the juvenile is shocking like murder or rape but as pointed out in Krishna Bhagwan v State of Bihar [AIR 1989 Patna 217 (FB)] (though under the earlier Act), the appropriate provision in the Act is quite conscious of such situations. If a Board is satisfied that a juvenile has committed an offence it may allow the juvenile to go home with an advice or admonition or direct him to participate in group counselling; community service, etc.; direct him to be released on probation as also order such directives as it may think fit. The Board may also make the terms and conditions of supervision and furnish copy to the juvenile, parent, guardian or other person or fit institution. Thus, welfare of the juvenile is the prime concern of the law makers.”

At the time of arrest, the juvenile was studying in standard ‘X’. On 23.11.2002 and 24.11.2002, the Special Task Force and ‘Q’ Branch CID made a joint combing operation to nab naxalites in Dharmapuri District. In connection with the same, they entered the petitioner’s house in search of his father. As his father was not available, they arrested the petitioner, who was sitting in the house, and foisted a case against him. They produced the petitioner before the Judicial Magistrate, Uthangarai on 25.11.2002 . The Magistrate, without enquiring about his age, mechanically remanded him to judicial custody. The petitioner was placed along with other alleged naxalite prisoners. A bail petition was moved to the Principal Sessions Judge which was allowed. The petitioner could not be entrusted to custody with his mother for various reasons. After filing of an application the POTA Special Court started to deal with the matter that whether the petitioner was a juvenile, though it did not have jurisdiction to try a juvenile. The High Court of Madras observed that if the Officer had opined not to release the petitioner on bail, the petitioner, being juvenile, should have been kept in an Observation Home and produced before the Juvenile Justice Board, which was not done. Herein the Court allowed the petition.

It also referred to Ramachandran v The Inspector of Police, Madras [1994 CriLJ 3722] it has been held by a Division bench of the Madras High Court, as follows: “A child below 16 years cannot be termed as “goonda”; within definition of S.2(b) of Tamil Nadu Prevention of Dangerous Activities of Boot-leggers, Drug offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act (14 of 1982) and therefore, his detention under that Act would be unjustified. If a child, is detained as a goonda, he is exposed to every such thing which Juvenile Justice Act (1986) says he should not be exposed to. If he is branded as a goonda, .. 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. Since a juvenile is always in a special 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…”

The Court referred to Antaryami Patra v State of Orissa [1993 CRI LJ 1908], wherein while dealing with provisions in Narcotic Drugs and Psychotropic Substances Act (NDPS Act), vis-a-vis, Juvenile Justice Act, 1986, observed that the right of a juvenile delinquent to be released on bail irrespective of the offence committed by him, is subject to NDPS Act a special statute, wherein a further special provision has been made with regard to the pre-conditions to be satisfied for an accused being released on bail and held that “a juvenile delinquent being accused of commission of an offence under the former Act cannot be released unless the pre-conditions contained in S.37 of the former Act are complied with, … an accused shall not be released on bail if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminals or expose him to moral danger or that his release would defeat the ends of justice, and that what is to be noticed is that release of an accused involved in commission of an offence under the Narcotic Drugs etc. Act would defeat the ends of the justice and the drug traffickers would pursue their objective of drug trafficking through such juvenile delinquents.”

Prabakaran vs State Of Tamilnadu on 18 March, 2003

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