Report on Inspection of Homes Under JJ Act by Allahabad High Court Committee

8/6/2019 Report on Inspection of Homes Under JJ Act by Allahabad High Court Committee

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Justice Vineet SaranChairman

Committee dealing with Juvenile Homes

Pursuant to the committee's resolution dated 10.2.2011 wherein a

decision was taken for committee members to visit different juvenile

homes I visited the juvenile homes at Faizabad and Gorakhpur on

30.6.2011, the Juvenile Justice Board at Sultanpur and the District Jail,

Sultanpur where a barrack had been created for lodging juveniles in

conflict with the law on 2.7.2011. Justice Surendra Singh also

voluntarily accompanied me on these visits.

On 30.6.11 after a preliminary meeting at the Circuit House Faizabad

with the District Judge, Sri Dina Nath II, the CJM, Sri Kushwaha, J.M.

Sri Abhay Prakash Narain (Judge Juvenile Justice Board), the A.P.O. and

City S.P. and District Magistrate Sri A.P. Agarwal, we inspected the

Observation Home which is situated in Ayodhya. Because of my

decision to visit the Observation Home the D.M., and the D.J. Faizabad

also visited the Observation Home for the first time. 65 children from

districts Faizabad, Sultanpur and Barabanki were lodged in this

Observation Home. Out of these there were 35 juveniles were from

Sultanpur. The space was so inadequate that the children appeared

packed tightly together in front of the T.V. like fish in a tin of sardines.

Apart from that there was only one small court yard for the children tomove about, which was too small to play in. When we asked the children

to retire to their places during the inspection, the children hardly moved

from the spot as there was no place for them to go. The three toilets were

also giving out a very foul smell, as they had no ventilation or exhaust

fan, though it may have been cleaned somewhat as information about the

visit had been sent in advance. Hence the mattresses on which the

children slept had even been tidied. We were informed that as the

solitary Class IV peon was on leave the children had to cook their own

food. There were two dormitories on the 2nd

floor where all the children

had to sleep huddled together on the mattresses placed there. The space

was further reduced as the roof was leaking. We think that there could

not have been more than 3 or 4 sq. ft. space per child, though Rule

40(5)(a) of the Juvenile Justice (Care and Protection of Children) Rules,


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2007 (hereafter the Rules) provides for a minimum space of 40 foot per

child in the dormitory. The D.M also agreed to my suggestion to look for

a better accommodation for the children and to submit a report about the

problems of such juveniles, where action would be needed at the State

level.

In the Gorakhpur Home which we visited along with the District Judge,

Sri Shashi Prakash, the CJM, Arvind Mishra, the JM (JJ Act), Arvind

Yadav, and the non-official members of the Board we found 96 children

housed there. 47 of these juveniles were from Gorakhpur. Most of the

children were watching T.V. We also found some relatively grown up

juveniles peering at us from a separate room, who did not even care to

acknowledge us. They appeared to be the dadas of the place. As the

home, which had better accommodation than Ayodhya, and better newly

constructed toilets by an NGO, Sahara Foundation, however the

problems of access to this place, because of the heavy traffic and the

lack of space for the juveniles for play and physical exercise remained.

In Sultanpur blissfully unaware of the provisions of the Act and Rules

not to keep juveniles in Jail, the D.J. had got a barrack created for such

children in the District Jail. But it appeared to be a well-intentioned step,

because of the inhumanly crowded conditions in the Ayodhya home,

where the children were housed. Here the 17 juveniles present were

housed in a substantially larger barrack. There was even space for the

juveniles to play in the court yard when the barrack was unlocked. There

was a TV set in the barrack and a teacher used to come and teach there.

He also immediately agreed to our suggestion to close down this

barrack. All the district Judges, and JMs concerned agreed to act more

proactively in these matters, and to see that bails are granted at least to

juveniles who are facing inquiries in minor offences. They also agreed to

act more proactively to take steps for tracing out the addresses of

children who are involved in petty offences but are unable to disclosetheir home addresses, and to some how contact their parents or guardians

for restoring them to their custody.

Problems:

1.Children lodged in observation homes for petty offences for long


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periods of time.

Not only were children who have been involved in major cases under

sections 302, 304, 376, 307, 304 B or 377 IPC etc. lodged in the

Observation Home, but there were also a large number of children who

were incarcerated in the homes for petty offences under sections 379/411

for stealing mobiles or a water taps (toti) etc., ordinary marpit,

molestation or trespass or criminal intimidation, or S.C./S.T. Act cases,

and petty cases under the Railways Act. Thus one child Anil was in the

Gorakhpur home since 4.7.09 for an offence u/s 145 of the Railways Act

(nuisance and drunkenness, punishable with a maximum sentence of 6

months, even for adults). The ostensible reason, his address at Jhansi

had not been traced. Rule 11(7) even restricts powers of apprehension

of the juvenile by the concerned police officer if the offence is normally

punishable with less than 7 years imprisonment. Rules 13(1)(a) and

13(2)(d) also provide that such incidents of trivial offences or where the

allegations are unfounded the cases maybe disposed of even on the first

day after a summary inquiry.

2.Problems of over-crowding in the Observation homes.

Due to acute over-crowding in some homes (such as in Faizabad) there

was no age-wise segregation of children in violation of the mandate of

section 8(4) of the Juvenile Justice (Care and Protection) Act, 2000

(hereafter the JJ Act.), or Rule 12(2). In fact we found much more living

room in the wrongly set up jail barrack for children in Sultanpur

compared to the absence of even breathing space in the Observation

Homes in Faizabad and to a lesser extent at Gorakhpur and the absence

of any space to play an outdoor game. The routine mentioned in Rule 43

for a child to lead a regulated life, maintain personal hygiene, engage in

physical exercise, yoga, educational classes, vocational training,

organized recreation and games, moral education, prayer and community

singing did not seem possible in this over-crowded setting. The onlyactivity for the juvenile seemed to be to watch T.V. or to cook their own

food, in the absence of Class IV staff. There seems to be only routine

compliance by the State government with the words and spirit of the JJ

Act and Rules, hence the shortage of homes and funds etc.

3.Arrangements for education non-functional

So far as education was concerned in both the Gorakhpur and Ayodhya


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homes the two teachers provided by the BSA were on leave due to

summer vacations, and there was only a Nursery teacher provided by the

Women and Child department. For a juvenile who spends less than 4

months in the home, it would mean a break for at least two months from

his studies. At the ages of 10 plus the Nursery teacher could not have

been particularly useful.

4.Reasons for long stays in the Home

Children remain incarcerated in the homes because first the medical

inquiry is delayed as the apprehending police officer (in the absence of

appointment of special police units and designated police officers for

child related matters mandated under section 63) fails to inform the

parent to appear before the board in violation of section 13(a) of the JJ

Act, in cases where the juvenile is apprehended from a place distant

from his home and consequently in the parent's absence no application

for bail is immediately made, nor is anyone available to stand surety for

the child, in the event of his release. Again in the absence ofpairvi by

the concerned police officer, teachers from the concerned educational

institutions do not appear on the dates fixed which hold up the age

inquiry which is necessary for disposal of the bail application under

section 12 of the JJ Act. As stated in section 49 of the JJ Act evidence

has to be taken in the age related inquiry, which cannot be disposed of

on affidavits. In the cases where medical examination for ascertaining

the age is permissible under Rule 12(3)(b), the delay by the CMO's

office in sending the age related report further delays proceedings, even

though under Rule 12(1), age has to be determined within 30 date of

submission of the bail application.Because of the delay in consideration

of bail applications due to the need for inquiry relating to age, and for

obtaining the report of the probation officer we learnt of a case in

Faizabad, where the lawyer father of a minor child who had committed

an offence under section 354 IPC was pleading with the CJM to treatthe child as major, as then his child would immediately get bail under

the bailable section, but he would need to remain in the home for a long

time, before his bail could be considered by the Juvenile Board. Because

of the long drawn procedure for hearing bails even in minor cases, some

Railway Magistrates before whom a child travelling ticketless or who

has committed some other petty Railway offences, is produced, treat the


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child as major to prevent the child from being incarcerated for a long

time in the home, if he were described as minor. In Railway offences

which are usually committed by juveniles travelling without parents or

who have run away from their natal homes, in the absence of parents or

non-application for bail, they have to remain in an observation home for

long periods of time.

5.Probation officer not contacted by the police and delays in

submitting the social investigation report

Where the Probation officer is not immediately contacted by the police

officer who apprehends the juvenile to obtain information regarding the

juvenile's antecedents and material circumstances under section 13(b) of

the Act or the laxity of the Probation officer in sending the report also

cause delay in consideration of the bail application and the eventual

disposal of the inquiry, even though the proviso to section 14(1) of the JJ

Act and Rule 13(6) mandates concluding the inquiry in 4 months after

the first summary inquiry. This may be extended by two months after

giving reasons in exceptional circumstances. Further Rule 13(7)

provides that proceedings shall terminate after 4 to 6 months, except in

cases of grave nature. Despite these legal restrictions we found that some

children had been in jail for long periods of time from 9 months to two

years even for petty offences, and even the inquiries on merits, (and

sometimes even the initial age related inquiries) were pending.

6.Voluntary organizations absent in smaller towns

Although in Gorakhpur, one or two voluntary organizations were

associated with the home, in smaller places such as Ayodhya and

Sultanpur there were usually no reliable voluntary organizations who

could have run the observation or special homes (possible under ss. 8(1)

and 9(1) of the Act, as the State was pleading difficulties in opening such

homes in all districts. The voluntary organization could also furnish thesocial investigation report [vide S. 15(2)], giving some relief to the

Probation officer, who is entrusted with multifarious duties.

7.Only one special home for juveniles found to have committed an

offence

As there is only a single Special Home in Etawah in the whole State, for


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Juveniles who have been found involved in the commission of the

offence in the inquiry, there appears to be inadequate compliance of

Section 9 of the JJ Act which envisages Shelter homes in each or a group

of districts for convicted juveniles.

8.Period of earlier stay in jail or another observation home, not set

off

We also came across cases where the juvenile has spent more than 3

years in the Home or earlier in Jail, or in another Observation Home

because the earlier period has not been set off even though section

15(1)(g) restricts the stay of a juvenile in the home for a maximum

period of 3 years.

9.Releases delayed because addresses of some juveniles missing

Some children, especially those who were involved in railway offences,

such as ticketless travel etc., who may have drifted from their homes

could not disclose their addresses and consequently they were staying in

the homes for long periods of time with little hope of being released and

restored to their parents.

10.Insensitivity of lawyers and absence of legal aid

There is an insensitive approach on part of lawyers. Thus the Gorakhpur

JM Sri Arvind Yadav informed me that when a juvenile who apparently

looked like a minor and was only involved in a petty offence under

sections 323 and 325 IPC etc. was produced before him, he suggested to

the lawyer that the juvenile may again appear on a subsequent date with

or without interim bail, so that in the meanwhile he could obtain

necessary information to determine the child's age. But the lawyer was

insisting that the child be sent to the Observation Home, possibly to

enhance his fee. The legal aid provisions in Section 14 are not being

utilized. Especially painful is the case of daily wage earning parents,such as rickshaw pullers or other daily workers, who after they reach the

board, on one date, are unable to come on future dates because of the

harrassment by lawyers and the long drawn procedure for the age

inquiry or for the regular inquiry, and the need for the Probation

officer's social investigation report etc. forcing the child to remain in the

Observation home for long periods, (against the mandate of the law) as


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their daily wage earning is necessary for the survival of the rest of the

family.

11.Board looks like Court-not child friendly

In Gorakhpur and Sultanpur the JJ Board was located in the Court and

Collectorate, and the Magistrate sat on a child unfriendly place on a

raised platform in violation of Rules 9(1) and 9(2).

12.No proximity of board to home

The proximity rule requiring the sittings to be either at the Observation

Homes or in proximity thereto in rule 9(1) was violated in each case,

because the Observation Home in Faizabad was located at Ayodhya, 8 or

9 kms away. In Gorakhpur it was housed in a trust building near

ghantaghar which was such a crowded locality that it was virtually

impossible for the Magistrate's vehicle to reach it in the day time. We

also had to wait till 9 p.m. to visit the home when the traffic was

reduced. For the other districts, Deoria, Mahrajganj, Kushinagar who

were served by the Observation Home in Gorakhpur and Sultanpur,

Barabanki and Ambedkar Nagar who were served by the Faizabad

Observation Home, the proximity principal is automatically violated. If

the concerned Magistrate either sits or frequently visits the Home he

would be automatically aware of the kind of cases for which the

juveniles are lodged in the Observation home and the problems they

face.

13.Children forced to cook their food and shortage of staff

We found that both in Faizabad (Ayodhya Observation Home) and in

Gorakhpur the children were forced to cook their own food. This was a

fry cry from Rule 44 which speaks of providing 4 nutritious meals with

special meals on holidays to the children. There was no cook or Class IV

worker in the Faizabad home and short time workers who came in themorning and evening in the Gorakhpur home. Thus there was severe

under staffing in violation of the staffing pattern mentioned in Rules

68(3) and 68(9).

14.Inadequate living expense payments of Rs. 40 per day for inmate

The payment of Rs. 1200 per month per child (or Rs. 40 per day) was


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clearly inadequate for meeting even the food needs of the juveniles

looking to the inflationary conditions, and certainly inadequate to meet

the minimum nutritional standards mentioned in Schedule II (Rule 44) of

the JJ Rules.

15.Absence of Child Protection Units, Inspecting Committees and

Advisory Boards

The State and district level Child Protection Units mandated under

section 62 A consisting of officers and employees of the State

government, and the Inspection Committee consisting of State

representatives and voluntary organizations under section 35, and State,

district and City Advisory Boards envisaged under section 62 for

advising the government on monitoring the homes and for mobilizing

resources for running homes and for the education, training and

rehabilitation of children and juveniles, and co-ordinating with official

and voluntary agencies have also not been set up, hence there is no

monitoring of the running of the homes.

16.Problems faced by Judicial Magistrates and poor infrastructure

of the Boards

The Senior Judicial Magistrates with their excess load of cases, which

include miscellaneous civil work, bails in normal cases where same

day orders have been passed by the High Court and the need to meet

their quota, which is not available in JJ Act cases are unable to give 5

hours every working day for the JJ Act matters as required under Rule

9(3). Nor are they able to supervise the functioning of the Homes and

other matters as required under Rules 10(c), 10(d) and 10(e). They also

made complaints about the absence of lighting (Faizabad) and other lack

of infrastructure, such as toilets (Sultanpur) near the board, and

inadequate manpower support which adversely affects their

performance. Also there does not appear to be any effective programme

of the JTRI to give special training to the Magistrates and the boardmembers on the provisions of the JJ Act and Rules, much less is the

requirement under Rule 5(3)(ii) to train them in Child Psychology and

child welfare met. Looking to the small period of detention, if any, for

minor and major offences contemplated under section 15, witnesses are

not interested in giving evidence. There is also absence of police

pairokars to ensure that witnesses appear. Thus there were a total of


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1065 regular inquiries and 33 age related inquiries pending in

Gorakhpur. In Sultanpur there were 425 inquiries and 45 age related

inquiries were pending. In Faizabad there were 570 pending inquiries.

17.Non-official board members not getting statutory allowance

There is non-cooperation by other non-official board members who are

not getting the minimum allowance of Rs. 500 per sitting earmarked

under Rule 8.

18.Mandatory bail in grave non-bailable offences negative feature

A negative feature is the provision for mandatory bails in all non-

bailable offences under s. 12 of the JJ Act, with the exception that the

release may bring them in contact with known criminal or in immoral

company, or if it defeats the ends of justice. Thus in many grave cases

offences of rape and murder, or where juveniles over 16 years in age

commit repeated crimes as members of gangs, they manage to secure

bail in view of this provision. Once such a juvenile is released on bail,

the inquiries against him usually does not proceed, as the complainant

loses interest owing to the small penalty prescribed if the juvenile is

found to have committed the offence, and there is no police pairokar for

producing witnesses before the board, consequently the juvenile crosses

the age of 20 or 21 years, and escapes any punishment whatsoever, and

he has not even to spend the 3 year maximum period for which he could

be sent to a special home under section 15(g). This provokes an angry

societal backlash against the child himself, or other teen aged children

who may be innocent, who may face counter-violence from society. It

should be remembered that section 82 of the penal code gives complete

immunity from a crime, and a child is presumed as devoid of mens rea

only when he is under 7. Under s. 83 IPC upto 12 years it will need to be

determined if the child is of such immature understanding that he does

not understand the nature and consequences of his act. After this agethere is no question of presuming absence of mens rea when the

delinquent commits a crime.

19.No 'places of safety' established by State government for grave

offences

The proviso to s. 16(1) speaks of the State government having 'places of


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safety' for keeping juveniles who are over 16 and are involved in a very

serious offence. But in U.P. where there is only one special home for the

convicted juvenile, there is no question of there being any 'place of

safety' for juveniles who commit serious offences. Also once the place

of safety is created by the State government it needs to be pondered

whether it could authorize detaining the juvenile till the age limit of 21

years, if he commits the grave offence when he is just under 18 years, or

whether it would be legal to keep the juvenile in a barrack in the jail for

18 to 21 year olds, once he crosses 18, subject to the maximum period

of 3 years.

20.Rule 11(7) -No power of arrest in grave cases punishable with less

than 7 years unreasonable

Rule 11(7) states that a police officer or a juvenile welfare officer can

only apprehend a juvenile if the offence carries a sentence of over 7

years. This non-obstante clause would therefore exclude powers of

apprehension even in those cases under sections 379/411 IPC where the

juvenile has been found involved in repeated cases of auto-lifting with a

gang of auto-lifters, or where he is shown involved in thefts where sums

as high as 5 lakhs may have been recovered from the juvenile or other

gang members. (We did come across such a case in the Ayodhya home).

21.Exclusionary principal for age determination under Rule 12

unreasonable

Rule 12 provides for an exclusionary principal for determining age of

the juvenile. Thus only in the absence of a matriculation certificate, can

evidence be led on a certificate from the school first attended, and in the

absence of both the above, on a birth certificate issued by the municipal

authority or panchayat. Only in the absence of all the three contingencies

can medical evidence of age be taken. Section 49(2) makes the age

determination by the competent authority the deemed true age of theapplicant which cannot be challenged even where it is shown that the the

earlier age given was wrong. Thus if a hardened criminal who is major

concealing that he has earlier written the matriculation exam. again

writes it, showing his age as minor on the date of incident, it will have to

be accepted. Likewise if a person corruptly obtain a false age certificate

from the school first attended or from the panchayat or municipal


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authority, it cannot be questioned. The rule also excludes cross-checking

by leading other kinds of evidence (say medical evidence) where the

matriculation certificate or the certificate from the first school are

produced.

Main Suggestions:

a) Serious steps be immediately taken by the Principal Magistrates of the

Juvenile Boards to release the juveniles in the observation homes who

are wanted in offences carrying less than 7 years imprisonment, or other

minor offences.

b) Magistrates could consider releasing the Juvenile on interim bail

when a juvenile who apparently looks a minor (as mentioned in s.12)

and is wanted in a petty case is produced before the Magistrate. As

observed by this Court in Sheoraj @ Chuttan v State of U.P. & ors.,

2009(65) ACC 781, and the Apex Court in Lal Kamlendra Pratap Singh

v State of U.P., (2009) 4 SCC 437and in the Full Bench decision of this

Court in Amrawati v State of U.P., 2005 Cri.L.J. 755, such a juvenile

may be granted interim bail, pending his age related or regular inquiry,

which may require evidence of the teachers of the institution he has first

attended or the Probation Officer's social investigation report, about the

background of the juvenile, which usually take a long time to procure.

c) The government must take immediate steps for increasing the number

of Observation and Special homes, and the endeavour should be to have

homes in all the districts. In U.P. there are only 18 Observation Homes

for boys and one Special Home for juveniles who are found to have

committed offences .

d) Increasing the amount of allowance per child, from Rs 1200 per

month, to an amount sufficient to procure the essential foodstuffs and

other items mentioned in the Rules to which a juvenile is entitled.

e) Have the photographs of the juveniles whose addresses are not known

or whose parents cannot be contacted put on the Police or voluntaryorganization (such as Don Boscoe's- Home link) Missing and Found

Children's web site. The Photograph of the child should also be

published in the news papers and shown on Doordarshan after obtaining

permission from the competent authority under the proviso to s. 21(1) of

the Act. The child should be shifted to an observation home near his

home district. The police at the place of detention and the local police


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and NGOs such as Childline should take effective steps for contacting

the parents with photographs and also for taking the juvenile home if his

parent is unable to visit the Observation Home for taking back his child.

Superior police officers and officers of the Women and Child

Development secretariat (or the State level Child Protection Units) be

also involved for coordinating this inter-district (or inter-state) effort.

f) Special Juvenile Police Unit with officers trained to sensitively handle

juveniles be set up in all districts and juvenile or child welfare officers

be appointed in the police stations as envisaged in section 63(2) and

appropriately trained (s. 63(1), and the Special juvenile police units of

such officers be set up in each district as provided in s. 63(3). Apart from

producing the juvenile before the board and taking him to the

Observation home, they could also ensure appearance of witnesses on

the dates concerned for the age and regular inquiry against the juvenile,

so that it can be expedited.

g) Child Protection units as contemplated in s. 62A for implementing

the provisions of the Act for coordinating with official and non-official

agencies be established at the state and district levels. They are also

mandated under the Integrated Child Protection Scheme, which has now

been made applicable in the State of U.P. Inspecting Committees (under

s. 35) and State and district or city advisory boards be also set up u/s 62.

h) A programme for providing age appropriate bridge courses and

options for eventually mainstreaming juveniles into age appropriate

educational institutions who are detained in the Observation Home be

explored and put in place, with the aid of good NGOs like 'Pratham.'

i) It is necessary to create places of safety for minors between 16 to 18

years who are nearing majority and are involved in grave criminal

offences, and it needs to be ensured that such juveniles who are found

involved in heinous offences at least undergo the three year maximum

period permissible for their incarceration under the proviso to section

16(2).

Other suggestions:

j) There should not be routine arrests for offences punishable with less

than 7 years sentence. Although, the U.P. government should consider

bringing out an amendment to Rule 11(7) which restrains arrest in all

such cases, even when the nature of the crime is grave, or where it is


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apparent that the juvenile is a member of a gang habitually engaged in

committing such crimes.

k) Caution needs to be exercised in granting bails in murder or rape

cases or other grave cases committed by a juvenile, as easy releases in

such matters can be counter-productive as there may be retaliatory

violence against the juvenile, hence it could defeat the ends of justice or

expose the juvenile to bad company.

l) Efforts should be made for associating more voluntary organizations

and social workers who could help in preparing the social investigation

reports or in running homes or perform other sundry tasks mentioned in

the Act and Rules.

m) In case the juvenile has undergone some period in jail or in another

observation home earlier, the said period should be set off, to prevent the

juvenile undergoing more than the maximum permissible 3 years period

of detention in a home.

n) Efforts should be made for locating the boards at or near the

Observation homes, and the board should not look like a Court room and

have a child friendly atmosphere. The Board should not sit on a raised

platform.

o) The conditions, infrastructure and manpower of the boards needs to

be improved significantly to enhance their performance. The days when

the Magistrate sits on the Board he should be exempted from giving his

quota.

p) The payment of Rs. 500 minimum allowance to board members per

sitting must be ensured.

q) The Presiding Magistrate and the two other board members should be

given training, possibly at the JTRI, Lucknow regarding the provisions

of the JJ Act and Rules, and they may also be coached in Child

Psychology and welfare if possible.

r) Rule 12 of the JJ Rules needs to be amended in U.P., so that the

exclusionary principle of first determining the age on the basis ofmatriculation, thereafter on the basis of school first attended, then based

on Municipal or Panchayat records, and in the absence of all three, on

the basis of medical evidence. It is important to permit cross-checking

the age related data from different angles for its accuracy. Rule 12

therefore needs to be suitably amended by the State government. Getting

information of age from different sources also seems to be the import of


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s. 7 A (1).

Justice Amar Saran

12.7.2011

Copy to:

Hon'ble Chief Justice

Documents

Report on Inspection of Homes Under JJ Act by Allahabad High Court Committee