Sunday, 11 December 2016

Whether juvenile can be denied employment on ground that he was convicted by juvenile justice board?

The   Juvenile   Justice   (Care   &

Protection of Children) Act, 2015, (‘the Act
of   2015’   for   short)   came   into   force   on   1st
January,   2016.   Since   the   offences   alleged
against   the   petitioner   were   committed   on
22.07.2010 and he has been dealt with by the
Juvenile Justice Board on 15th  January, 2011,
he   would   be   governed   by   the   Act   of   2002,
which   was   in   force   at   the   relevant   time.
Even   under   the   Act   of   2015,   there   is   an
analogous provision in Section 24 pertaining
removal   of   disqualification   attached   to
conviction   of   an   offence   of   “a   juvenile   in
conflict with law”, who is referred to as “a
child in conflict with law” as per the Act of
2015.      
10. As   mentioned   in   the   statement   of
objects and reasons of the Act of 2000, one
of   the   objects   is   to   rehabilitate   the
juvenile/child   in   conflict   with   law.   The
provisions   of   sub­section   (1)   of   Section   19
would   provide   the   juvenile   in   conflict   with

law found guilty of an offence an opportunity
to   amend   and   regulate   his   delinquency.
Removal   of   disqualification   attached   to   a
conviction of a juvenile in conflict with law
would   have   the   effect   of   opening   the   doors
for   him   of   a   descent   and   disciplined
civilized life. The order holding him guilty
of an offence  would not disqualify  him from
getting any job to which otherwise  he would
be legitimately entitled.   
11. Sub­section (1) of Section 19 of the
Act of 2000 starts with a non obstante clause
i.e.   “notwithstanding   anything   in   any   other
law”.   In   the   directive   no.33   (d)   it   is
mentioned   that   the   candidate   must   submit   an
affidavit   giving   his   personal   details
including the fact that he has not been ever
convicted for any offence under law. The said
clause   cannot   be   used   for   disqualifying   the
petitioner  for his enrolment in the Army on
the   ground   that   he   was   held   guilty   by   the

Juvenile Justice Board. Such disqualification
has   been   specifically   removed   by   the
provisions   of   sub­section   (1)   of   Section   19
of   the   Act   of   2000   and   the  non   obstante
clause used therein would override  directive
no.33 (d) issued by respondent nos. 3 and 4.
Respondent no.4, therefore, was not justified
in   cancelling   the   candidature   of   the
petitioner  for his enrolment in the Army on
the   ground   that   he   was   held   guilty   by   the
Juvenile   Justice   Board,   Nanded.   The   letter
dated   31st  March,   2016,  issued   by   respondent
no.4   cancelling   candidature   of   the
petitioner,   in   the   above   circumstances,   is
liable   to   be   quashed   and   set   aside.
Respondent  no.4 will have to be directed to
reconsider the candidature of the petitioner
for enrolment into the Army on his own merits
without being influenced by his conviction by
the Juvenile Justice Board.   
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5093 OF 2016 
Kailas Sambhaji Lohakre,  

V
 The State of Maharashtra,  

      CORAM:  S.S.SHINDE & 
              SANGITRAO S.PATIL,JJ.
 Citation: 2016(6) MHLJ 957
          
Heard.   Rule.   Rule   made   returnable
forthwith and heard finally with the consent
of the parties.
2. A short but important question that
is involved in this Writ Petition is whether
the   order   passed   by   the   Juvenile   Justice
Board holding a juvenile in conflict with law
guilty   of   the   offences   punishable   under
Sections 324, 323, 504, 506 read with Section
34   of   the   Indian   Penal   Code   would   be   a
disqualification for him to join the services
in Army.   
3. The petitioner completed his Diploma
in Mechanical Engineering with distinction on
9th  June,   2015.   Respondent   no.4   initiated
District­wise open ground recruitment process
for   his   Department   on   27th  July,   2015.   The
petitioner   appeared   before   respondent   no.4
and participated in the recruitment process.

His   medical   examination   was   conducted.
Thereafter,   the   petitioner   appeared   for
written   examination   on   29th  November,   2015.
Respondent   no.4   published   a   list   of
successful   candidates,   wherein   the   name   of
the   petitioner   was   included.   All   the
successful   candidates   were   called   upon   to
produce   the   original   documents   for
verification.   Accordingly,   the   petitioner
submitted   all   the   original   documents   for
verification.  Respondent no.2 Superintendent
of Police, Nanded, issued a certificate on 6th
January,   2016   and   mentioned   therein   that
Crime No.59/2010 for the offences punishable
under Sections 324, 323, 504, 506 r/w. 34 of
the Indian Penal Code was registered against
the   petitioner   in   Police   Station   Usmannagar
and   that   he   was   released   by   the   Juvenile
Justice   Board   on   15th  January,   2011,   under
Section   15   (1)   (a)   of   the   Juvenile   Justice
(Care and Protection of Children) Act, 2000,

(‘the Act of 2000’ for short).   On receiving
the   said   certificate,   respondent   no.4,   vide
letter   dated   31st  March,   2016,   informed   the
petitioner that since he was convicted for an
offence under the law, could not be enrolled
in the Army. Accordingly, the candidature of
the petitioner came to be cancelled.   
4. The   learned   counsel   for   the
petitioner   submits   that   the   main   object   of
the   Act   of   2000   is   to   provide   proper   care,
protection and treatment to the juveniles in
conflict   with   law   and   to   rehabilitate   them.
He   submits   that   as   per   sub­section   (1),
Section 19 of the Act of 2000, a juvenile who
has committed  an offence and has been dealt
with under the provisions of this Act, would
not suffer disqualification, if any, attached
to a conviction of an offence under such law,
notwithstanding   anything   contained   in   any
other law. He submits that the petitioner was
dealt   with   by   the   Principal   Magistrate   of

Juvenile   Justice   Board,   Nanded   in   RCC   No.
84/2010   for   the   offences   punishable   under
Sections   324,   323,   504,   506   r/w.   34   of   the
IPC and as per the judgment and order dated
15th  January,   2011,   after   holding   the
petitioner   guilty   for   the   said   offences,   on
accepting   plea   of   being   guilty   made   by   the
petitioner, allowed the petitioner to go home
with   an   advice   not   to   involve   in   any   other
offence   in   future,   vide   clause   (a),   subsection
  (1),   of   Section   15   of   the   Act   of
2000. In view of sub­section (1), of Section
19,   passing   of   such   order   against   the
petitioner   would   not   be   a   disqualification
for enrolment  of the petitioner in Army. He
submits   that   the   impugned   letter   dated   31st
March,   2016,   issued   by   respondent   no.4,
therefore,   may   be   set   aside   and   the
petitioner may be directed to be enrolled in
Army.   
5. The   learned   counsel   for   the

petitioner   further   submits   that   as   per   subsection
(2), Section 19 of the Act of 2000,
the   Juvenile   Justice   Board   has   to   make   an
order directing that the relevant records of
the   conviction   of   the   juvenile   in   conflict
with law shall be removed after the expiry of
the period  of appeal or a reasonable period
as   prescribed   under   the   Rules.   He   submits
that   respondent   no.2   wrongly   retained   the
record   of   conviction   of   the   petitioner   even
after the expiry of the period of appeal. He,
therefore,   sought   a   direction   against
respondent   no.2   to   remove   the   relevant
records of Crime No.59/2010 in respect of the
petitioner.      
6. No   formal   reply   has   been   filed   by
respondent nos.1 to 3.  Respondent no.4 filed
affidavit­in­reply and resisted the petition.
According   to   him,   all   actions   of   Army
Recruiting   Authorities   are   governed   by   the
“Directives   on   Recruitment   of   Junior

Commissioned Officers and Other Ranks, 2014.
The candidature of the petitioner came to be
rejected as per the provisions of para 33 (d)
Page   86   Part   IX   Section   II   of   the   said
Directives   since   he   was   convicted   by   the
Principal Magistrate, Juvenile Justice Board,
Nanded, vide order dated 15th January, 2011.
As per the recruitment  policy  in vogue, any
candidate who has ever been convicted for an
offence   under   the   Indian   Penal   Code,   cannot
be   enrolled   in   the   Army.   Accordingly,
respondent   no.4   communicated   to   the
petitioner,   vide   letter   dated   31st   March,
2016,   that   since   he   was   convicted   for   an
offence   under   the   law,   cannot   be   enrolled
into the Army. It is stated that the Juvenile
Justice   Board   is   equally   the   court   of   law,
the petitioner has pleaded guilty before the
said   Board   for   the   above   mentioned   offences
and accordingly, he has been convicted as per
the   judgment   and   order   dated   15th   January,

2011, passed in RCC No.84/2010. Consequently,
his candidature has been rightly rejected by
respondent no.4.     

7. On   the   basis   of   the   averments   made
in   the   affidavit­in­reply,   the   learned
counsel   for   respondent   no.4   submits   that
since   the   petitioner   is   a   previous   convict,
he was not entitled to be enrolled into the
Army.     He,   therefore,   supports   the   decision
of respondent no.4 to reject the candidature
of the petitioner for being enrolled into the
Army and prays that the Writ Petition may be
dismissed.   
8. The   petitioner   was   prosecuted   for
the   offences   punishable   under   Sections   324,
323,   504,   506   r.w.   34   of   the   Indian   Penal
Code   alleged   to   have   been   committed   by   him
and   his   companions   on   22nd   July,   2010.   The
learned   Principal   Magistrate,   Juvenile
Justice   Board,   Nanded,   framed   the   charges

against   him   for   the   said   offences,   vide
Exhibit   10   on   15th   January,   2011   and
explained   the   contents   thereof   to   him   in
vernacular. The petitioner pleaded guilty for
the said charges. The learned Principal Judge
accepted his plea of being guilty and passed
the following order: 
          ORDER
1­ The   Juvenile   Offender   in
conflict   with   law   namely   Kailas
Sambhaji Lohakare is held guilty for
committing   the   offence   punishable
u/ss.324,   323,   504,   506   r.w.   34   of
Indian Penal Code and he is allowed
to   go   home   as   per   Sec.   15   (a)   of
Juvenile   Justice   (Care   and
Protection of Children) Act, 2000 on
advice   not   to   involve   in   any   other
offence in future.  
2­ Muddepal   property   if   produced,
be   returned   to   the   concern   Police
Station   to   produce   in   a   trial
against major offender.  
9. The   Juvenile   Justice   (Care   &

Protection of Children) Act, 2015, (‘the Act
of   2015’   for   short)   came   into   force   on   1st
January,   2016.   Since   the   offences   alleged
against   the   petitioner   were   committed   on
22.07.2010 and he has been dealt with by the
Juvenile Justice Board on 15th  January, 2011,
he   would   be   governed   by   the   Act   of   2002,
which   was   in   force   at   the   relevant   time.
Even   under   the   Act   of   2015,   there   is   an
analogous provision in Section 24 pertaining
removal   of   disqualification   attached   to
conviction   of   an   offence   of   “a   juvenile   in
conflict with law”, who is referred to as “a
child in conflict with law” as per the Act of
2015.      
10. As   mentioned   in   the   statement   of
objects and reasons of the Act of 2000, one
of   the   objects   is   to   rehabilitate   the
juvenile/child   in   conflict   with   law.   The
provisions   of   sub­section   (1)   of   Section   19
would   provide   the   juvenile   in   conflict   with

law found guilty of an offence an opportunity
to   amend   and   regulate   his   delinquency.
Removal   of   disqualification   attached   to   a
conviction of a juvenile in conflict with law
would   have   the   effect   of   opening   the   doors
for   him   of   a   descent   and   disciplined
civilized life. The order holding him guilty
of an offence  would not disqualify  him from
getting any job to which otherwise  he would
be legitimately entitled.   
11. Sub­section (1) of Section 19 of the
Act of 2000 starts with a non obstante clause
i.e.   “notwithstanding   anything   in   any   other
law”.   In   the   directive   no.33   (d)   it   is
mentioned   that   the   candidate   must   submit   an
affidavit   giving   his   personal   details
including the fact that he has not been ever
convicted for any offence under law. The said
clause   cannot   be   used   for   disqualifying   the
petitioner  for his enrolment in the Army on
the   ground   that   he   was   held   guilty   by   the

Juvenile Justice Board. Such disqualification
has   been   specifically   removed   by   the
provisions   of   sub­section   (1)   of   Section   19
of   the   Act   of   2000   and   the  non   obstante
clause used therein would override  directive
no.33 (d) issued by respondent nos. 3 and 4.
Respondent no.4, therefore, was not justified
in   cancelling   the   candidature   of   the
petitioner  for his enrolment in the Army on
the   ground   that   he   was   held   guilty   by   the
Juvenile   Justice   Board,   Nanded.   The   letter
dated   31st  March,   2016,  issued   by   respondent
no.4   cancelling   candidature   of   the
petitioner,   in   the   above   circumstances,   is
liable   to   be   quashed   and   set   aside.
Respondent  no.4 will have to be directed to
reconsider the candidature of the petitioner
for enrolment into the Army on his own merits
without being influenced by his conviction by
the Juvenile Justice Board.   
12. So   far   as   2nd   prayer   of   the

petitioner   seeking   directions   against
respondent no.2 Superintendent of Police for
removal   of   the   relevant   records   of   his
conviction   is   concerned,   it   would   be
worthwhile   to   reproduce   here   the   provisions
of sub­section (2) of Section 19 of the Act
of 2000 which read as under: 
19. Removal   of   disqualification
attaching to conviction. ­ 
(1) .....
(2) The   Board   shall   make   an   order
directing  that the relevant  records
of such conviction shall be removed
after   the   expiry   of   the   period   of
appeal   or   a   reasonable   period   as
prescribed   under   the   rules,   as   the
case may be.  
As seen from the above provision, it is for
the Juvenile Justice Board to make an order
directing   that   the   relevant   records   of   the
conviction   of   the   juvenile   in   conflict   with

law   should   be   removed   after   expiry   of   the
period   of   appeal.   In   the   present   case,
besides   the   petitioner   there   are   other
accused   persons   involved   in   the   offences
alleged to have been committed on 22nd July,
2010.   It   is   not   known   whether   the   trial
against the co­accused of the petitioner has
been   conducted   or   not.   The   original   record
produced   before   the   Juvenile   Justice   Board
would  be required  to be produced before the
Regular   Criminal   Court   for   conducting   the
trial   against   his   co­accused.   Therefore,   it
is   necessary   for   the   learned   Principal
Magistrate,   Juvenile   Justice   Board,   Nanded,
to   consider   the   question   of   removal   of   the
concerned   record   of   conviction   of   the
petitioner and pass necessary orders keeping
in mind the provisions of sub­section (2) of
Section 19 of the Act of 2000.   
13. In   view   of   the   above   facts   and
circumstances, the Writ Petition will have to

be   allowed   partly.     In   the   result,   we   pass
the following order:  
ORDER
        
i) The impugned letter dated 31st March,
2016,   addressed   by   respondent   no.4
to   the   petitioner,   cancelling   the
candidature   of   the   petitioner   for
getting   enrolled   into   the   Army,   is
quashed and set aside.  
ii) Respondent   no.4   is   directed   to
consider   the   candidature   of   the
petitioner   for   his   enrolment   into
the   Army   on   its   own   merits   and
should   not   reject   it   merely   on   the
ground that the petitioner was held
guilty   of   certain   offences   by   the
Juvenile Justice Board.   
iii) The respondents  shall  take decision
as   expeditiously   as   possible   and
within   6   weeks   from   today   and   in
case   the   petitioner   is   found
eligible for the post of Mechanical
Soldier   shall   appoint   him   to   the
said post without further delay.  

iv) The   Principal   Magistrate,   Juvenile
Justice   Board,   Nanded   shall   pass
necessary   orders   under   sub­section
(2),   Section   19   of   the   Juvenile
Justice   (Care   and   Protection   of
Children)   Act,   2000   in   respect   of
the   records   holding   the   petitioner
guilty   of   the   offences   alleged
against him.    
v) Rule   is   made   absolute   partly
accordingly.  
vi) The Writ Petition is disposed of in
the above terms.  
vii) The   parties   shall   bear   their   own
costs.   
Sd/­    Sd/­
 [SANGITRAO S.PATIL]          [S.S.SHINDE]
       JUDGE                 JUDGE  


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