P L D 1955 Sind 405 (PLP)

TYABJI, C. J.--‑The appellant Muhammad Alam son of Muhammad Umer has been held guilty by the Juvenile Court at Karachi of an offence under section 380, I. P. C., and committed to the Remand Home for two years. 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 the appellant, in the office. As his suspicions were roused, 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 he was tried before the Juvenile Court. The main evidence in the case was that of Manilal. The President of the Juvenile Court stated in his final order :‑ "I find the cases against the accused proved. He has been caught red handed. The offence has occurred only a weep 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 380 I. P. C. 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 2 years". The only point urged in this appeal by Mr. Manik J. Shahan', 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 passes against the appellant was under the circumst?ances the best in the interests of the appellant. While there is, therefore little to be said on the merits of the appeal, the question 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 do the question ; and some adjournments had to be allowed as the learned advocates had great diffi?culty in securing a copy of the Rules framed under the Bombay Children's Act. The President of the Juvenile Court (Mr. Tobin, an Additional 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 wit?nesses a verbose battle of 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, and 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 corrective rather than penal, would, with the resultant long and often times tedious cross‑examination, 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 debarred members of the bar from taking dart in the proceedings, a step which has received the expressed approval of the Chief Judge, the Honourable Mr. Justice Tyabji. In the case in point the accused was caught redhanded in the offence within a week of release on bond for good character, and no prejudice has therefore occurred". Under Clause (1) of section 340 Criminal Procedure Code every accused person has the right to "be defended by a pleader", and the question arises whether there is anything in the Bombay Children's Act or the Rules framed thereunder which permits a Juvenile Court to prevent an advocate appearing on behalf of juvenile accused from cross‑examining the witness in the manner usual in ordinary criminal cases. Section 46 of the Bombay Children's Act, 1924 provides that Juvenile Courts should whenever practicable hold 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's 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 publication 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's Act or in the Rules framed thereunder, which takes away the right given by section 340 of the Criminal P. C., 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 a juvenile should not ordinarily be permitted to assume the contentious character of an ordinary criminal trial and it is clear that no prejudice is likely to be caused and, on, the f 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 recorded. Advocates appearing for juveniles ought themselves to bear this in mind, and help the Court to function as Juvenile Courts. They should assist the 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 to the child to encourage it to dispute the truth or raise false contentions. Of course the responsibility of juvenile Courts to see that no juvenile is, ever charged with and found guilty of an offence unless his guilt was clear beyond any reasonable question, was a particularly heavy one. There way sometimes be cases in which an advocate may be called upon to assist the court in having the matter thoroughly investigated but such cases 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 Indian journal of Social Work (reprinted by the Sir Dorabji Tata Graduate School of 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 before a couple of ordinary looking individuals in almost homely surround?ings: 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 seldom 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 the 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 crim‑1nal 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 guilty, 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 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 reformation 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 Magis?trates and is questioned in a quiet voice as to whether he did not commit the theft or other offence charged against him, and is told that he could tell the truth without 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 and 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 contact 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 func?tions when they are engaged for a child offender put up before this Court." As I am satisfied that the appellant was not prejudiced in this case, and that the order finally passed by the Juvenile Court was a proper one, as is conceded before the by Mr. Shahani, I dismiss this appeal. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.