P L D 1950 Sind 70 (PLP)

The facts of the case are very simple. The appellant is a boy about 15 years of age. The evidence shows that one Manilal Bhanji, the Proprietor of Sind Mosaic Concrete Works, left his office for a little while, and on, returning to the office found three persons, including tie appellant, in the office: As, his suspicions were aroused, Manilal began to examine the pocket of his coat which he had left hanging on a peg, whereupon all' the three intruders started to run away. The appellant, however, was caught on the spot after he had been seen throwing away some currency notes which he had removed from Manilal's coat. As the appellant was only 15 years of age be was tried before the juvenile Court. The main, evidence in the case was that of Manila. The President of the Juvenile Court stated in his final order :‑ "I find the case against the accused proved. He has been caught red handed. The offence has occurred only a week after he was released on bond to be of good behaviour for a period of a year, his father standing surety, in the sum of Rs.

100. In convicting the boy under section 308, Indian Penal Code I am unable to find' extenuating circumstances to treat him lightly. His father appears incapable of looking after him. I accordingly commit him to a Remand Home for two years." The only point urged in this appeal by Mr. Manik, J. Shahani who appears on behalf of the appellant, was that the trial was bad, because Mr. Vaswani, the Advocate who appeared on behalf of the appellant before the Juvenile Court, had not been permitted by the Court to cross‑examine the complainant. Mr. Shahani was unable to show that in this particular case there was any possibility of prejudice having been caused to the appellant, and in fact he agreed that the order passed against the appellant was under the circumstances the best in the interests of the appellant. While there is, therefore, little to be said on the merits of the appeal, the ques tion as to the proper course' which a Juvenile Court should adopt in controlling the conduct of, advocates appearing for juvenile offenders, appeared to me to be so important that I considered it necessary to hear Mr. Shahani and the learned Public Prosecutor on the ques tion: and some adjournments had to be allowed as the learned advo cates had great difficulty in securing a copy of the rules framed under the Bombay Children Act. . The President of the Juvenile Court (Mr. Tobin and Addl. District Magistrate of Karachi) has stated in his explanation as follows:‑ "The intention of the juvenile Courts appears to be that juvenile offenders should be dealt with under conditions clear of the atmosphere of the criminal Court where the adult and more hardened criminal is brought up handcuffed and under a sufficient police escort for his trial, .and witnesses a verbose battle for wits between the contending members of the Bar. In furtherance of this intention, members of the police force are, if appearing as witnesses, required as far as possible to appear in mufti, arid other witnesses give their evidence without the guidance of a public or police prosecutor. The presence of members of the Bar on behalf of the accused in such petty matters as are brought before the Court, whose functions are cor rective‑rather that penal, would, with the resultant long and often times, tedious cross‑exanimation, tend to frustrate the intention more specially as‑the aid of lady members of the public has been enlisted in this corrective work. For these reasons I have de barred members of the 13ar from taking part in the proceedings, a step which has received the expressed approval of the Chief Judge, the Hon'ble Mr. Justice Ty4bji. In th6 case in point the accused was caught red handed in the‑offence within a week of release on bond for good character, and no prejudice has, there fore, occurred" Under clause (1) of section 340 Criminal Procedure Code, very accused person has the right to "be defended by a pleader". and the question arises whether there is anything in the Bombay Children Act or the Rules framed thereunder which permits a juvenile Court to prevent an advocate appearing on behalf of a juvenile accused from cross‑examining the witnesses in the manner usual in ordinary criminal cases:‑ Section 46 of the Bombay Children Act. 1924 provides. That Juvenile Courts should, whenever‑prac ticable bold their sittings. "in a different building or room from that in which the ordinary sittings of the Court are held, or on different dates or at different times from those on which the ordinary sittings are held". The Rules framed under the Bombay Children Act are published in the Bombay Government Gazette of the 16th June 1927, Part I at page 1506. Rule 3 provides that the public generally shall not have any access to, or be or remain in the room or building used by the juvenile Court, and forbids the publi cation of the proceedings of any such Court: Rule 8 lays down that proceedings in the juvenile Court shall be conducted in the simplest possible manner, care being taken that when a child or young person is accused of an offence, he shall understand the nature of the proceedings. There is, therefore., nothing in the. Bombay Children Act, or in the Rules framed thereunder, which takes away the right given by section 340 of the Criminal Procedure Code to every accused person to be defended by a pleader, when the accused is a juvenile. At the same time it is only proper that the presiding officer of a Juvenile Court should see to it that proceedings in such a Court are conducted in such a manner as is in consonance with the main object of such courts. The trial of. 8 juvenile should not ordinarily bb permitted to assume the contentious character o an ordinary criminal trial, and it is clear that no prejudice is likely to be caused on the contrary, much injury to the delinquent child may be prevented. if such trials are so conducted that advocates do not figure very prominently when evidence is record ed. Advocates appearing fox juveniles. ought themselves to bear this in mind,, and help the Courts to function as juvenile Courts. They should assist be Court in having the truth brought before it in the simplest manner, and in dealing with the delinquent for his benefit. They must remember that it would be very injurious td, the child to encourage it to dispute the truth or raise false con tentions. Of course the responsibility of Juvenile Courts to see that no juvenile is ever charged with and found guilty of an offence unless Its guilt vans clear beyond any reasonable question, was a particularly beaux one. There may sometimes be cases in which an advocate may be called upon to assist the Court in having the matter, thoroughly investigated, but such cages against juveniles are very rare. I would like juvenile Courts and advocates, appearing for juveniles to bear. in mind the following observations made by Mr. K. J. Khambata in the article entitled: " the juvenile Court How it functions", published, in the Indian Journal of Social. Work, (reprinted'; by Sir Dorabji Tata Graduate School Social Work at Bombay): "The Juvenile Court meets in a separate building ‑and not in a regular Court‑house. The idea is not to frighten the child into making him appear before a regular Magistrate's Court with all its terrors, but to put him up before a couple of ordinary looking individuals in almost homely surroundings. The Juvenile Court at Bombay is nothing' but a room in the Children's Remand Home at Umerkhadi, in which there is a table at which sit the 'Magistrates and other tables at which sit the Police Prosecutor, the Chief Probation Officer and her assistants. The Public is strictly excluded from the Court. Also, reports of‑ proceedings of Juvenile Court cannot be published in any papers except with the leave of the Court (which leave is seldum if ever granted) and then, too, no names, addresses or other particulars are to be given which would enable one to identify the child. The Magistrate comes not in his Court dress but in mufti. If an advocate appears on behalf of any party to the proceedings, he is also expected? not to come in :lie black coat which is the usual garb put on by the advocates in Courts. An "atmosphere" is thus created as remote as possible from that of ordinary criminal Courts. "In cases falling under this class" that is of juvenile offenders, the procedure of a criminal trial has to be followed; but the Rules have simplified this procedure so that in every case we begin by taking the plea of the child. Where the child pleads not guilt the case has, of course to be tried, i.e.; evidence has to be taken. But the trial is summary and, as far as possible, formalities have to be avoided. I may also state that in 9 cases out of 10, a child pleads guilty. This, I think, should be attributed partly to the innate simplicity of the child‑mind, and partly to the moral influence which is brought into play upon the child even during the brief interval between his arrest and the‑trial. In the case of children who are let out on bail, it has been observed that there is unfortunately a tendency to lie and deny the offence but even here the large majority of children straight forwardly admit the offence. In this connection. I may refer to the part played by advocates in‑the Juvenile Court. As a rule the presence of lawyers is not encouraged. The idea of the Juvenile Court is the child's refor mation and not punishment, so that the putting up of a defence for the sake of defence would be deplorable. It is desirable that a child should tell the truth out of his own mouth and have a heart to heart talk with the Magistrates. Several times it has happened that an advocate instructed by the child's parents has come into the court and has begun by saying "This is an entirely false case. My client is absolutely innocent. The case has been trumped up by so and so, etc.' When the child is asked to step forward. near the table of the . Magistrates and is questioned in a quiet voice as to whether he did not commit the theft or ether offence charged against him, and is told that lie could tell the truth without' any fear, the child pleads guilty straightaway‑to the discomfiture of the learned advocate. In the course of a year and a half, some 7 or 8 such cases occurred. On such occasions I made it a point to address the advocate concerned and to impress upon him also the desirability of co‑operating with the Court in making the child tell the truth and so, display his higher nature, and in getting a suitable order made for the child's own benefit arid reformation, instead of the advocate's services being availed of by the child or his parents to take up a contentious and false attitude which an actual trial would show up within a few minutes. The lawyer concerned would then apologise and say that he had no direct con tact with the child but had made the statements that he did upon the instructions of the child's parents; and he would then be really useful to the Court, e.g. by joining the Court in trying to persuade his clients, the parents, that it would be better for the child to be sent to a certified school than to be sent back to his parents, as. they wished to be done. I have no doubt that at least half a dozen advocates have left the Juvenile Court in my time with a better appreciation of their duties and functions when they are engaged for a child offender put up before this court." As I am satisfied that the appellant was hot prejudiced in this case, and that the order finally passed by the Juvenile Court was a proper one, as is conceded before me by Mr. Shahani, I dismiss this appeal. K M.A. Appeal dismissed