Delhi High Court
Delhi High Court Legal Services ... vs Uoi & Anr. on 12 August, 2014
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*IN THE HIGH COURT OF DELHI AT NEW DELHI
Crl. Rev. No. 443/2009 & Crl.M.A.No.3071/2010
Date of Decision: 12th August, 2014
DELHI HIGH COURT LEGAL SERVICES COMMITTEE ..Petitioner
Through : Mr. V. Madhukar, Mr. Paritosh
Anil, Mr. Jayendra, Mr. V. Bhatt,
Mr. Sandeep Sethi, Sr. Adv.
appointed as Amicus Curiae
VERSUS
UOI & ANR. ....Respondents
Through: Mr. Manoj Ohri, APP for the
State.
Mr. Amit Chadha, Adv. for
applicant.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
GITA MITTAL, J
―It is highly deplorable and heart-rending to note that
many poverty stricken children and girls in the prime of
youth are taken to 'flesh market' and forcibly pushed into
the 'flesh trade' which is being carried on in utter
violation of all cannons of morality, decency and dignity
of humankind. There cannot be two opinions--indeed
there is none--that this obnoxious and abominable crime
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 1
committed with all kinds of unthinkable vulgarity should
be eradicated at all levels by drastic steps.‖
(1990) 3 SCC 318 (para 7) Vishal Jeet vs. UOI & Ors.,
1. By way of the instant revision petition, the petitioner challenges the
order dated 10th August, 2009 passed by the Metropolitan Magistrate
(Central) with regard to custody of two minors recovered in police actions in
violation of the provisions of Section 17(A) of the Immoral Traffic
(Prevention) Act, 1956 and other relative provisions. The petition has been
filed by the Delhi High Court Legal Services Committee as per the mandate
of Section 8(a) of the Legal Services Authority Act, 1987 and the High Court
Legal Services Committee Regulations.
Factual Background
2. Two young girls A and B, aged 14 years and 16 years respectively,
were rescued by the Delhi Police on 29th July, 2009. On a complaint made by
B, FIR No. 98/2009 was registered by the police station Kamla Market on 29th
July, 2009 under sections 366A, 368, 373, 323, 376, 109 read with Section 34
of the Indian Penal Code (‗IPC' hereafter) and sections 3, 4 and 5 of the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 2
Immoral Traffic (Prevention) Act, 1956 (hereafter referred to as the 'IT Act of
1956').
3. As per the complaint, it appears that A & B, hailing from extremely
poor families of the District South 24 Paraganas in West Bengal, were
fraudulently lured to Delhi, sold and compelled into prostitution by their
captors till rescued by the police.
4. After the rescue, the senior officials in the police as well as an NGO
concerned with such like matters, were informed. They were then produced
before the Child Welfare Committee for Care and Protection at the Nirmal
Chhaya Complex, Jail Road, Hari Nagar, New Delhi and lodged in the
Children's Home for Girls.
5. One person claiming to be the father of B, thereafter, filed an
application before the Metropolitan Magistrate seeking her custody. On this
application, the Metropolitan Magistrate passed an order on 10 th August,
2009, noting that as per the reply filed by the investigating officer, the age
determination test of the prosecutrix had been conducted and that the
investigating officer had no objection to handing over the physical custody of
the victim to the father. The learned trial judge scrutinised the voter
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 3
identification card, ration card and transfer certificate of the applicant. On
this material alone, without inquiring any further, the learned trial judge
concluded that the applicant was the father of one of the girls and passed the
order for handing over her custody to the applicant as he was her natural
father. No further inquiry was deemed necessary by the learned Metropolitan
Magistrate before directing handing over custody of the child to the father.
6. This order was orally brought to the Hon'ble the Chief Justice by Mr. V.
Madhukar, learned counsel for the Delhi High Court Legal Services
Committee, resulting in the passing of the following order dated 11 th August,
2009 :-
―Crl.R............../2009 (to be numbered)
We have heard Mr. V. Madhukar, learned counsel for
petitioner/DHCLSC.
In view of the submission of learned counsel for petitioner,
operation of impugned order dated 10th August, 2009 passed by
Metropolitan Magistrate (Central)-05 in FIR No.98/2009, Police
Station Kamla Market is hereby stayed. The lower court is
further directed not to pass any order in respect of other rescued
girl, namely, Kavita, till further orders of this Court.
Petitioner is directed to file a proper petition before the
Registry of this Court. Registry is directed upon filing of
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 4
petition, same be listed before appropriate Bench on 17th August,
2009.
Order dasti under the signature of Court Master.‖
7. The present petition has been filed by the Delhi High Court Legal
Services Committee through its Secretary pursuant to the above order. The
case was first listed before this court on 17th August, 2009. The applicant
before the trial court, (who was the person claiming to be the father of A), was
represented by a counsel in this court. In the above facts, he was directed to
be impleaded as a necessary party/respondent no. 3 in the present
proceedings. He has since been represented by a counsel throughout in the
present proceedings and has been heard in the matter.
8. On 17th August, 2009, the only grievance made by the petitioner in
these proceedings, was an objection to the failure of the learned Metropolitan
Magistrate to conduct the inquiry postulated under section 17A of the IT Act,
1956 before directing release of the victim by the Magistrate. In this regard,
reference had also been made to the scheme of the statute, especially sections
16, 17, 17A thereof.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 5
9. Learned counsel for the petitioner had drawn my attention to a
pronouncement of this court reported at 1995 JCC 509 Kumari Sangeeta vs.
State & Anr., wherein a question had arisen as to whether the inquiry
postulated under sub-section (2) and (5) of section 17 of the IT Act, 1956 was
mandatory. It was urged in the above matter on behalf of the State, that the
use of the expression 'may' under section 17(5) of the Act gave ample option
and latitude to the Magistrate and left it to his judicial discretion to avail the
services of five persons for the purposes of discharging functions under the
said Act or to ignore the same. On the other hand, on behalf of the
petitioners, it was urged that the word 'may' has been used in the sense of
'shall', making it obligatory on the part of the Magistrate to utilise the services
of five respectable persons.
The learned Judge has alluded at length to the object and purpose of
enacting the IT Act of 1956, pointing out that the statute was enacted by the
Parliament pursuant to the ratification and signing of the International
Convention for the Suppression of Immoral Traffic in Persons and the
Exploitation of the Prostitution of others at New York on 9 th May, 1950. The
court also referred to the Constitutional mandate and observed that the IT Act
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 6
of 1956 was a piece of social legislation intended to ameliorate the lot of
those persons of the country who are being exploited by others. In this
background, it was observed that having regard to the well established
principles of legislative interpretation, the word 'may' in section 17(5) of the
Act is to be read as 'shall' and that the legislature had used the same in the
mandatory sense. The enquiry under sub-section (5) was therefore mandatory
and the statutory provision was not merely an enabling one.
10. In view of the above, in the present proceedings, on 17 th August, 2009,
it was urged by the petitioner and found by this court, that the order of the
trial court dated 10th August, 2009 passed in the instant case clearly reflected
that no investigation at all, as was envisaged under section 17A, had been
effected and the learned Magistrate had directed handing over of custody of
the child victim to the respondent no. 3 on the finding that he was the natural
father without conducting/directing any further investigation, which was
contrary to the mandatory statutory scheme. In this background, status quo on
the custody of the child, stated to be with Nirmal Chhaya, a children's home
for girls was directed. Further, liberty was given to the respondent no. 3 to
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 7
file an application before the trial court for conducting the inquiry in
accordance with section 17A of the IT Act, 1956.
11. Immediately thereafter, Crl.Misc.No.10648/2009 dated 8th September,
2009 was filed by the petitioner pointing out that the matter was to be
examined in the light of the Juvenile Justice (Care & Protection of Children)
Act, 2000 (‗JJ Act, 2000' hereafter) and not by the Magistrate under Section
17A of the IT Act, 1956. It was apprehended, that the Magistrate may pass
orders on the application without taking into consideration the mandatory
provisions of the later enactment. It was contended that only the Child
Welfare Committee constituted under section 29 of the statute would have the
jurisdiction to rule on the issue about the competence of the claim for custody
by a person claiming to be the parent. It was explained, that for the reason
that the present petition was submitted in haste on 17 th of August, 2009, this
aspect of the matter had not been placed by the petitioner before the court.
On account of the immediacy and urgency expressed, the same had escaped
attention.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 8
In view of the above submissions, by an order dated 23rd October, 2009,
consideration of the application, if any, filed by respondent no. 3 before the
trial court was directed to be deferred.
12. In the meantime Crl.M.A.No.3071/2010 has been filed by a lady
claiming to be the mother of B seeking a direction for handing over custody
of 'B' to her and an opportunity of being heard in the present matter.
13. On the 11th March, 2010, in order to avoid delay in passing appropriate
orders for restoration or rehabilitation of the two persons concerned, it was
deemed necessary that immediate orders be passed with regard to conduct of
the appropriate inquiry in accordance with the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000. It was accordingly
directed that the two rescued victims be produced before the concerned Child
Welfare Committee on 18th of March, 2010 at 12:00 noon for the purpose of
conducting the inquiry in terms of the procedure prescribed under the said
statute.
14. Having regard to the importance of the above questions and its far
reaching ramifications, I had appointed Mr. Sandeep Sethi, Senior Advocate
as amicus curiae in the matter. I have been assisted in the hearing of the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 9
present matter by Mr. Sandeep Sethi, learned Senior Counsel as amicus
curiae, Mr. V. Madhukar, learned counsel representing the Delhi High Court
Legal Services Committee; Mr. Manoj Ohri, learned APP and Mr. Amit
Chadha, learned counsel.
Contentions
15. Mr. Sandeep Sethi, learned amicus curiae has pointed out, that so far as
children are concerned, the JJ Act of 2000 is not only a later Act but is the
special law on the subject of children or juveniles. It is also pointed out, that
the legislature under Section 29 of the JJ Act, has carefully constituted a five
member Child Welfare Committee which has exclusive jurisdiction in respect
of children in need of care and protection in view of Section 31 of the
enactment. Even the Juvenile Justice Board constituted under Section 4 of the
Stature is a multiple member body consisting of experts which is conferred
absolute jurisdiction with regard to children in conflict with law.
The submission is that these statutorily provided bodies constituted of
experts would be more sensitive to the needs and interests of the child than
the magisterial enquiry postulated under section 17A of the IT Act. Mr. Sethi
has also pointed out that under section 2(t) of the JJ Act, it is stated that a
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 10
―public place‖ shall have the meaning assigned to it in the Immoral Traffic
(Prevention) Act, 1956. Furthermore, so far as a child in need of care and
protection is concerned, the legislature has included a child who is found
vulnerable and is likely to be inducted into trafficking within the definition of
the expression. The contention is that the legislative intention of giving
supremacy to the provisions of the JJ Act in contra-distinction to the
provisions of the IT Act in the context of persons under 18 years of age, is
amply clear from a bare reading of the statute.
16. Mr. Madhukar has painstakingly pointed out that the IT Act of 1986 is
a penal statute and section 4 thereof refers to a person over 18 years of age
guilty of commission of an offence thereunder as liable for punishment. It is
a statute concerned not only with children but refers to offences by ‗any
person' Mr. Madhukar has drawn my attention to sub-section 1A of section 7
of the IT Act, 1956, which is concerned with an offence in respect of a child.
Section 10A deals with ‗female offenders' without making any distinction
between juveniles and adult offenders.
17. The provisions of section 17 including 17(3) and 17A of the JJ Act are
also concerned with any person and are not confined to dealing with children.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 11
The first proviso of sub-section (s) of section 17 of the Act makes it ―open‖ to
the Magistrate to place such child or minor, rescued under section 16, in any
institution established or recognised under any Children's Act for the time
being in force in any state for the safe custody of children, without anything
more.
18. It has been pointed out, that the provisions of the IT Act of 1956, which
is a special legislation in relation to immoral trafficking, postulates an inquiry
by the magistrate under Section 17A with regard to the manner in which he is
to proceed if he is of the opinion that a person brought before him is a
juvenile or a child.
19. On the other hand, Section 7 of the JJ Act, 2000 contains an entire
scheme including orders which are required to be made if he is of the opinion
that the person brought before him under any of the provisions of the Act is a
juvenile or a child. The Act of 2000 completely excludes the enquiry by the
magistrate.
20. Section 7A of the JJ Act, 2000 proposes the procedure to be followed
when there is a claim of juvenility of an accused person on the date of the
offence. The court is empowered to conduct the inquiry to determine the age
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 12
of the person, record a finding, whether the person is a juvenile or a child or
not, stating his age. In case of a finding that a person is a juvenile on the date
of commission of the offence, the juvenile has to be forwarded to the Board
for passing the appropriate orders. This section thus, is confined to accused
persons produced before the court who set up a claim of juvenility on the date
of commission of the offence.
Issues arising for consideration
21. The important question which firstly, arises for consideration, is the
manner in which the court is to proceed in a matter where the persons
recovered by the police in a raid under Section 15 or 16 of the IT Act, 1956,
are under 18 years of age. Are the authorities required to proceed against
them under the Immoral Traffic (Prevention) Act, 1956 (‗IT Act') or in
accordance with the provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (‗JJ Act')?
22. The court is therefore confronted with the question as to whether the
provisions of the IT Act, 1956 would prevail over the provisions of the JJ Act,
2000. If the answer to the first question is that the JJ Act is to prevail, then
whether the children rescued in a raid conducted under Section 15 and 16 of
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 13
the IT Act are to treated as juveniles in conflict with law and the requirements
of Section 7 of JJ Act have to be complied with as well as the inquiry is to be
conducted by the JJB under section 14 or whether the children are to be
treated as children in need of care and protection and the inquiry as required
to be conducted by the CWC under section 33 of the JJ Act, 2000.
Constitutional Scheme
23. For the purposes of consideration of these issues, it becomes necessary
to first consider the international instruments, constitutional scheme and
statutory provisions on the subject which would enable appreciation of the
spirit, intendment and purpose of the statutes.
24. Appreciation of the statutory provisions requires an insight into the
relevant constitutional provisions. A special status has been ensured for
children under the Constitution of India in both the fundamental right
provisions in Articles 15(3), 21A, 23, 24 as well as the directive principles of
state policy enshrined in Articles 39(e) and (f) 45, 46 and 47.
25. The rights constitutionally ensured to the child, the prohibitions
recognised under the Constitution of India and the duties imposed on the State
thereunder deserve to be stated and read as follows :-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 14
―15. Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth-(1) The State shall
not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste,
sex, place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to -
(a) access to shops, public restaurants, hotels and places of
public entertainment; or
(b) the use of wells, tanks, bathing, ghats, roads and places of
public resort maintained wholly or partly out of State funds or
dedicated to the use of general public.
(3) Nothing in this article shall prevent the State from making
any special provision for women and children.
xxx xxx
xxx
21A. Right to education- The State shall provide free
and compulsory education to all children of the age of six to
fourteen years in such manner as the State may, by law,
determine.
xxx xxx
xxx
Right against exploitation
23. Prohibition of traffic in human beings and forced
labour-(1) Traffic in human beings and beggar and other
similar forms of forced labour are prohibited and any
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 15
contravention of this provision shall be an offence punishable
in accordance with law.
(2) Nothing in this article shall prevent the State from
imposing compulsory service for public purposes, and in
imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste or class
or any of them.
24. Prohibition of employment of children in factories,
etc.-No child below the age of fourteen years shall be
employed to work in any factory or mine or engaged in any
other hazardous employment.‖
26. The directive principles of state policy contained in Article 39 (e) and
(f), 45, 46 and 47 also require to be examined and read as follows :-
―39. Certain principles of policy to be followed by the
State: The State shall, in particular, direct its policy
towards securing
xxx xxx xxx
(e) that the health and strength of workers, men and
women, and the tender age of children are not abused
and that citizens are not forced by economic necessity to
enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected
against exploitation and against moral and material
abandonment
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 16
45. Provision for early children and education to
children below the age of six years - The State shall
endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and
compulsory education for all children until they complete
the age of fourteen years.
46. Promotion of educational and economic interests of
Scheduled Castes, Scheduled Tribes and other weaker
sections-
The State shall promote with special care the educational
and economic interests of the weaker sections of the
people, and in particular, of the Scheduled Castes and the
Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation.
47. Duty of the State to raise the level of nutrition
and the standard of living and to improve public
health- The State shall regard the raising of the level of
nutrition and the standard of living of its people and the
improvement of public health as among its primary duties
and, in particular, the State shall endeavour to bring about
prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are
injurious to health.‖
(Underlining by me)
27. The various grounds enumerated under Article 15(1) prohibiting
discrimination do not include discrimination on grounds of age. Article 15(3)
and clauses (e) and (f) of Article 39, permit the state to enact special
legislation for children. Article 23 provides a fundamental right against
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 17
exploitation and makes contravention of Article 23(1) an offence punishable
in accordance with law.
28. The Constitution (86th Amendment) Act 2002 inserted Article 21A in
the Constitution to provide free and compulsory education of all children in
the age group of six to fourteen years as a fundamental right in such a manner
as the State may by law, determine. The Right of Children to Free and
Compulsory Education (RTE) Act, 2009, which represents the consequential
legislation envisaged under Article 21-A, means that every child has a right to
full time elementary education of satisfactory and equitable quality. Implicit
therein is that a child between six and fourteen years of age must be engaged
in education and not other actuaries, especially those against his/her welfare,
as those covered under the IT Act.
29. It is noteworthy, that fundamental duties were introduced as chapter IV-
A by way of the 42nd constitutional amendment. For the purposes of the
present consideration, it is essential only to notice the objective under clause
(e) of Article 39, which is that the State should direct its policy towards
ensuring that the tender age of children is not abused and that they are not
forced by economic necessity to enter avocations unsuited for their age or
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 18
strength. Clause (f) mandates upon the state to direct its policy towards not
only providing opportunity and facility to children to develop in a healthy
manner in conditions of freedom and dignity but also to protect them against
exploitation, moral and material abandonment.
Article 45 imposes on the state a primary responsibility of ensuring that
all children, until they complete the age of 14 years, are provided free and
compulsory education.
Article 46 directs the state to promote the educational and economic
interests of the weaker sections of the people and that it shall protect them
from social injustice and all forms of exploitation.
Article 45 and 47 impose on the state a primary responsibility of
ensuring that all the needs of the children are met, and that their basic human
rights are fully protected.
International concerns and impact on Legislation regarding children in
India
30. International recognition of the rights of the child was first manifested
in the Geneva Declaration of the Rights of the Child which was adopted by
the League of Nations on 26th September, 1924.
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The Universal Declaration of Human Rights was thereafter adopted on
10th December, 1948 by the UN General Assembly which incorporated certain
basic rights of children. Article 16 of this Declaration emphasises that the
family is the natural and fundamental group unit of society and is entitled to
protection by society and the state. Article 25(2) of this declaration states that
motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social
protection.
31. Following the partition, there was an increased number of excluded
children and delinquent juveniles in India.
32. As per the separation of powers provided under the Constitution of
India adopted in 1950, the subject matter of legislation for children fell in the
State List of the 7th Schedule of the Constitution. For this reason, even
though, there was a crying need for a uniform countrywide legislation, but the
same could not be enacted. The Constitutional scheme, thus while
recognising the importance of affairs relating to the welfare of children,
however had left matters as education, administration of justice, reformation
and other institutions to the prerogative of the states. As a result of the 42 nd
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 20
Constitution (Amendment) Act, 1976, education (at item no. 25) and
administration of justice, constitution and organisation of all courts, except
the Supreme Court, and the High Court (as item no. 11A) were transferred to
the Concurrent List i.e. List III under the Seventh Schedule of the
Constitution.
33. The impetus to the enactment of special laws for children in this
country was provided by the Declaration of the Rights of the Child adopted
by the General Assembly of the United Nations on the 20 th of November,
1959. The preamble thereof provides that the child by reason of his or her
physical or mental immaturity, needs special safeguards and care including
her appropriate legal protection before as well as after birth. The Declaration
makes a reference to Principle no. 9 which, reads as follows :-
―The child shall be protected against all forms of neglect, cruelty and
exploitation. He shall not be the subject of traffic, in any form.
The child shall not be admitted to employment before an appropriate
minimum age; he shall in no case be caused or permitted to engage in any
occupation or employment which would prejudice his health or education, or
interfere with his physical, mental or moral development.‖
34. The Children's Act, 1960 was the first Central legislation enacted in
India relating to children. This enactment was applicable only to Union
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Territories and was an attempt of the legislature to provide a model to be
followed by the states for enactment of their respective children's legislations.
In view of the Constitutional scheme, different states enacted different
provisions in their respective statutes relating to children.
35. The year 1979 was celebrated as the International Year of the Child to
draw the attention of people to the multifarious problems associated with the
exploitation of the child and awareness of the rights of the child. There was a
paradigm change in approach internationally from concerns being confined to
'welfare of the child' towards the protection of the 'rights of the child'
36. On or about 10th September, 1985, Sheela Barse, a journalist filed a
petition in the Supreme Court of India seeking release of 1400 children
illegally incarcerated in several jails in different states. Several issues,
including absence of the 'Children's Act' in many states; non-establishment of
alternate custodial institutions for children and processing of delinquent
juveniles by ordinary criminal courts on account of non-availability of
juvenile courts resulting in violation of their fundamental rights guaranteed
under Article 14 and 21 of the Constitution of India, were raised. Having
regard to the importance and urgency of the matter, the court expanded the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 22
consideration in the writ petition and examined issues relating to
institutionalisation of juveniles, implementation of the services under the
juvenile justice scheme and made several orders for their improvement
including directions to judicial officers as well as state legal aid boards to visit
jails and sub-jails; the court examined conditions of homes under the
Children's Act; reasons for non-enforcement of the state enactments as well as
particulars and details of government and non-government homes and
organisations for the care of mentally and physically handicapped juveniles.
Keeping of children in jails was deprecated. Finally, in view of the extent of
the problem and the difficulties in requiring each state to enforce its
enactments, the Supreme Court suggested to the Union Government to initiate
a 'parliamentary legislation' on the subject, so that there is complete
uniformity in regard to the provisions relating to children in the entire
territory of the country. (Ref: AIR 1986 SC 1773 Sheela Barse vs. UOI).
37. In furtherance of the provisions of Declaration on Social & Legal
principles relating to protection and welfare of the children with Special
Reference to Foster or Placement and Adoption Nationally & Internationally :
General Assembly resolution 41/85 of December 3, 1986; the United Nations
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 23
had also adopted the Standard Minimum Rules For the Administration of
Juvenile Justice ‗commonly referred to as The Beijing Rules' dated
November 29, 1985. These standards were intended to meet the varying
needs of juvenile offenders while protecting their basic rights and to meet
the needs of society. The standards aimed to ensure that the juvenile justice
system shall emphasize the well-being of the juvenile and shall ensure that
any reaction to juvenile offenders shall always be in proportion to the
circumstances of both the offenders and the offence.
38. The adoption of the Beijing Rules in 1985, the suggestion in the Sheela
Barse case in 1986 for initiation of parliamentary legislation on the subject,
and the recommendation for a uniform law on the subject also to be found in
the 69th Report of the Committee on Subordinate Legislation tabled in the
Parliament on 12th of May, 1986, added to the impetus for enacting a uniform
law relating to juvenile justice.
The Juvenile Justice Act, 1986
39. In this background, the Juvenile Justice Act, 1986 (JJ Act, 1986
hereafter) came to be passed on the 1st of December, 1986 which was brought
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 24
into force on 2nd October, 1987 and extended to the whole of India except the
state of Jammu & Kashmir.
40. The working of the JJ Act, 1986 and experience revealed that there was
need for creating adequate infrastructure for ensuring that the rights of the
child are protected. There was also the realisation that there were not only
children who were in conflict with law but a large body of children in need of
care and protection requiring assistance. Involvement of voluntary
organizations and institutions was also deemed necessary. The available
justice delivery system for adults was certainly not suitable for application to
juveniles or children or any one on their behalf which included police,
voluntary organizations, social workers, parents or guardians. A different
infrastructure was also considered necessary with involvement of the informal
systems including family, voluntary organizations and the community.
41. The JJ Act, 1986 was challenged by the Delhi Juvenile Welfare Board
on the ground that it gave the police the power to send missing children to
the welfare homes, including those run by private organisations, without
producing them before the Board or searching for their parents, and in those
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 25
circumstances, there was every likelihood of the provisions of the Act being
exploited by certain unscrupulous organisations.
42. A working committee reviewed the 1986 Act. The review indicated
that the justice system provided was not considered suitable and that the Act
did not provide for differential approach to children in conflict with law
and those in need of care and protection.
43. On 20th November, 1989, the Convention on the Rights of the Child
(‗CRC'hereafter) was adopted by the United Nations General Assembly being
the 30th anniversary of the Declaration of the Rights of the Child. This
document is a binding treaty which, as of November 2009, stands ratified by
194 countries. India signed and ratified the convention in 1992.
This international instrument recognizes "that in all countries in the
world, there are children living in exceptionally difficult conditions, and that
such children need special consideration". The Convention is the principle
treaty for children for encompassing a full range of civil, political, economic,
social and cultural rights and aimed at protecting children from
discrimination, neglect and abuse. It grants and provides for the
implementation of rights for children both in times of peace and during
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 26
armed conflict. The Convention constitutes a rallying point and is a
very useful tool for civil society and individuals, working for the protection
and promotion of the rights of the child, a truly innovative instrument.
44. Under this Convention a child is defined in Article 1 as ―every human
being below the age of 18 years unless, under the law applicable to the
child, majority is attained earlier.‖ Article 3 of the Convention spells out the
best interest of the child doctrine and emphasizes on the need for competent
authorities to set up procedural formalities required in the area. Article 4
refers to the need for effective implementation of the rights spell out in the
Convention and directs all state parties to undertake all appropriate legislative,
administrative and other measures in this regard. The CRC provides inter alia
for the following rights of the child:
―(i) to (v) xxx xxx xxx
(vi) freedom of thought, conscience and religion;
(Article 14)
(vii) state parties to take all appropriate legislative,
administrative, social and educational measures 'to
protect children' from all forms of physical or mental
violence, injury or abuse, neglect or negligent treatment,
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 27
maltreatment or exploitation including sexual abuse
while in parental care or of a guardian (Article 19)
(viii)Further, the state shall provide for protective
measures and effective procedures establishing social
programmes to provide necessary support to
children.[Article 19(2)]
xxx xxx xxx
(xii) the right to education, with States making
primary education compulsory and free; (Article 28)
(xiii) protection from economic exploitation, with a
minimum age for admission to employment; (Article 32)
(xiv) protection from involvement in the illicit
production, trafficking and use of narcotic drugs &
psychotropic substances; (Article 33)
(xv) protection from sexual exploitation and abuse.
(Article 34). The parties to take all appropriate national,
bilateral and multilateral measures to prevent (a)
inducement or coercion of a child to engage in any
unlawful sexual activity (b) the exploitative use of
children in prostitution or other unlawful sexual
practices (c) the exploitative use of children in
pornographic performances and materials (Article 34)
(xvi) State parties shall protect the child against all other
forms of exploitation prejudicial to any aspects of the
child's welfare (Article 36)
(xvii) the right to life and to protection from capital
punishment; and life imprisonment and no child be
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 28
subjected to torture or other cruel, inhuman or degrading
treatment or punsihment (Article 37(a);
(xviii) State parties to take all appropriate measures to
promote physical and psychological recovery and social
reintegration of a child victim of any form of neglect,
exploitation or abuse; torture or any other forms of cruel,
inhuman or degrading treatment or punishment (Article
39)‖
(Emphasis added)
45. Under the CRC, the State Parties thus undertook to protect the ‗child'
being 'every human being under 18 years of age unless, under the law
applicable to the child, majority is attained earlier') from all forms of
discrimination and to provide appropriate care.
46. In 1990, the United Nations also framed the United Nations Rules for
the Protection of Juveniles Deprived of their Liberty.
The Juvenile Justice (Care & Protection of Children) Act, 2000
47. In the light of the several concerns spelt out by the international
instruments noted above as well which remained to be addressed despite the
1986 enactment, the need was felt for a more suitable uniform juvenile justice
system applicable throughout the country. Such system would be concerned
with juveniles in conflict situations and provide, not only for all aspects of
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 29
their social, cultural and economic evolution in the country but would
adequately involve and utilise informal systems; include family, social and
community based welfare agencies concerned with care, protection,
rehabilitation, treatment and also be concerned and deal with those needing
care and protection.
48. Despite the above legislations and judicial pronouncements, not much
had changed on the ground. This compelled the Supreme Court in 1997,
while considering the plight of bonded and child labour in the judgment
reported at (1997) 10 SCC 549 Bandhua Mukti Morcha etc. vs. UOI & Ors.
to lament thus:-
―4. Child of today cannot develop to be a responsible and
productive member of tomorrow's society unless an environment
which is conducive to his social and physical health is assured to
him. Every nation, developed or developing, links its future with the
status of the child. Childhood holds the potential and also sets the
limit to the future development of the society. Children are the
greatest gift to the humanity. Mankind has best hold of itself. The
parents themselves live for them. They embody the joy of life in
them and in the innocence relieving the fatigue and drudgery in
their struggle of daily life. Parents regain peace and happiness in the
company of the children. The children signify eternal optimism in
the human being and always provide the potential for human
development. If the children are better equipped with a broader
human output, the society will feel happy with them. Neglecting the
children means loss to the society as a whole. If children are
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 30
deprived of their childhood - socially, economically, physically and
mentally-the nation gets deprived of the potential human resources
for social progress, economic empowerment and peace and order,
the social stability and good citizenry. The founding fathers of the
Constitution, therefore, have emphasised the importance of the role
of the and the need of its best development. Dr. Bhim Rao
Ambedker, who was far ahead of his time in his wisdom projected
these rights in the Directive Principles including the children as
beneficiaries. Their deprivation has deleterious effect on the
efficacy of the democracy and the role of law.‖
49. In this background, it was considered expedient to re-enact the existing
law relating to children resulting in the enactment of the Juvenile Justice
(Care and Protection of Children) Act, 2000 which received the assent of the
President of India on 30th December, 2000 (referred to as the ‗JJ Act, 2000'
hereafter) and was brought into force on 1st April, 2001.
50. Apart from the foregoing concerns, in the JJ Act of 2000, the following
further proposals were made:-
―(i) to lay down the basic principles of administering
justice to a juvenile or the child in the Bill;
(ii) to make the juvenile justice system meant for a juvenile
or the child more appreciative of the developmental
needs in comparison to criminal justice system as applicable
to adults;
(iii) to bring the juvenile law in conformity with the United
Nations Convention on the Rights of the Child;
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 31
(iv) to prescribe a uniform age of eighteen years for both boys
and girls;
(v) to ensure speedy disposal of cases by the authorities
envisaged under this Bill regarding juvenile or the child
within a time limit of four months;
(vi) to spell out the role of the State as a facilitator rather
than doer by involving voluntary organizations and local
bodies in the implementation of the proposed legislation;
(vii) to create special juvenile police units with a humane
approach through sensitisation and training of police
personnel;
(viii) to enable increased accessibility to a juvenile or the
child by establishing Juvenile Justice Boards and Child
Welfare Committees and Homes in each district or group of
districts;
(ix) to minimise the stigma and in keeping with the
development needs of the juvenile or the child, to separate the
Bill into two parts - one for juveniles in conflict with law and
the other for the juvenile or the child in need of care and
protection; and
(x) to provide for effective provisions and various
alternatives for rehabilitation and social
reintegration such as adoption, foster care, sponsorship
and aftercare of abandoned, destitute, neglected and
delinquent juvenile and child.‖
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 32
51. At that time, a writ petition bearing W.P.(C) No. 3447/2001 entitled
B.S. Gahlaut vs. UOI came to be filed in this court challenging the provisions
of Section 32, 33, 37(2), 41(4), 41(6), 56 (in relation to the local authority
only), as well as those of Section 59(2) of the JJ Act, 2000 on the ground of
their being unconstitutional and injurious to the well being of neglected
children. The writ petition was disposed of by this court on 28th July, 2003
with the observation that some of the statutory provisions merited
reconsideration.
Juvenile Justice (Care and Protection of Children) Amendment Act, 2006
52. In view of the courts' observations, widespread consultations were held
and several amendments were proposed in the JJ Act, 2000. As a result, the
Juvenile Justice (Care and Protection of Children) Amendment Act, 2006
(Act 33 of 2006) was finally brought into force with effect from 22nd August,
2006 and applies to the present consideration.
53. The Statement of Objects and Reasons of the Amendment Act 33 of
2006 manifests the legislative intent and inter alia include the following :-
―(ii) to clarify that the Juvenile Justice Act shall apply to all
cases involving detention or criminal prosecution of
juveniles under any other law;
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 33
xxx xxx xxx
(iv) exclusion of the local authorities from the provisions
authorising them to discharge or transfer a child in need of
care and protection or a juvenile from the children's home or
special home or for sending a juvenile in conflict with law
undergoing imprisonment, to a special home or a fit
institution;
(v) to have a procedure laid down where claim of juvenility
is raised before any court.
(vi) to have a minimum period of twenty-four hours,
excluding the time necessary for the journey from the place
where the juvenile in conflict with law was apprehended,
within which he should be produced before the Board and a
similar provision with regard to production of a child before
the Child Welfare Committee;
xxx xxx xxx
(viii) to do away with the association of any police
officer from the inquiry process, for the child in need of care
and protection as the work is assigned to the Child Welfare
Committee and to cover other cases where the child can
remain in children/shelter home after completion of enquiry;
xxx xxx xxx
(xi) to ensure the applicability of model rules framed by the
Central Government in the States/Union territories who have
not made their own rules, till the rules are framed in this
regard by the respective States/Union territories.‖
54. The emphasis, concern and mandate of all the international
instruments, as well as the constitutional provisions, is securing the best
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 34
interest of the child which is manifested in the scheme of the JJ Act, 2000 (as
amended by Act 33 of 2006) as well. The reference to the JJ Act, 2000
hereafter is to the amended provisions. The relevant provisions of the Act,
necessary for the present consideration, for purposes of convenience are
extracted hereunder :-
2. Definitions- In this Act, unless the context otherwise
requires,-
xxx xxx xxx
(d). "child in need of care and protection" means a child -
(i). who is found without any home or settled
place or abode and without any ostensible means
of subsistence,
[(ia) who is found begging, or who is either a
street child or a working child,]
(ii). who resides with a person (whether a
guardian of the child or not) and such person
(a) has threatened to kill or injure the child and
there is a reasonable likelihood of the threat
being carried out, or
(b). has killed, abused or neglected some other
child or children and there is a reasonable
likelihood of the child in question being killed,
abused or neglected by that person,
(iii). who is mentally or physically challenged or
ill children or children suffering from terminal
diseases or incurable diseases having no one to
support or look after,
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 35
(iv). who has a parent or guardian and such
parent or guardian is unfit or incapacitated to
exercise control over the child,
(v). who does not have parent and no one is
willing to take care of or
whose parents have abandoned him or who is
missing and run away child and whose parents
cannot be found after reasonable inquiry,
(vi). who is being or is likely to be grossly
abused, tortured or exploited for the purpose
of sexual abuse or illegal acts,
(vii). who is found vulnerable and is likely to
be inducted into drug abuse or trafficking,
(viii). who is being or is likely to be abused for
unconscionable gains,
ix. who is victim of any armed conflict, civil
commotion or natural calamity;
(e) "children's home" means an institution established by a
State Government or by voluntary organisation and
certified by that Government under section 34;
xxx xxx xxx
(g) ―competent authority‖ means in relation to children
in need of care andprotection a Committee and in relation
to juveniles in conflict with law a Board;
xxx xxx xxx
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 36
(k) ―juvenile‖ or ―child‖ means a person who has not
completed eighteenth year of age;
(l). "juvenile in conflict with law" means a juvenile who
is alleged to have committed an offence and has not
completed eighteenth year of age as on the date of
commission of such offence;]
xxx xxx xxx
(p). "offence" means an offence punishable under any law
for the time being in force;
xxx xxx xxx
(r). "prescribed" means prescribed by rules made under this
act;
xxx xxx xxx
(t). "public place" shall have the meaning assigned to it
in the Immoral Traffic (Prevention) Act, 1956 (104 of
1956);
(Emphasis supplied)
55. The other relevant provisions of the statute referred to by learned
amicus curiae and counsels include section 4, 6, 7, 7A, 12, 14, 15, 29, 30, 31,
31(2), 32, 33, 38, 39, 49 & 50 of the statute which read thus:-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 37
4. Section 4 - Juvenile Justice Board
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 ( 2 of 1974), the State
Government may,1[within a period of one year from the
date of commencement of the Juvenile Justice (Care and
Protection of Children) Amendment Act, 2006, by
notification in the Official Gazette, constitute for every
district,] one or more Juvenile Justice Boards for exercising
the powers and discharging the duties conferred or imposed
on such Boards in relation to juveniles in conflict with law
under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a
Judicial Magistrate of the first class, as the case may be,
and two social workers of whom at least one shall be a
woman, forming a Bench and every such Bench shall have
the powers conferred by the Code of Criminal Procedure,
1973 ( 2 of 1974), on a Metropolitan Magistrate or, as the
case may be, a Judicial Magistrate of the first class and the
Magistrate on the Board shall be designated as the principal
Magistrate.
(3) No Magistrate shall be appointed as a member of the
Board unless he has special knowledge or training in child
psychology or child welfare and no social worker shall be
appointed as a member of the Board unless he has been
actively involved in health, education, or welfare activities
pertaining to children for at least seven years.
(4) The term of office of the members of the Board and the
manner in which such member may resign shall be such as
may be prescribed.
(5) The appointment of any member of the Board may be
terminated after holding inquiry, by the Sate Government,
if--
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 38
(i) he has been found guilty of misuse of power vested
under this Act,
(ii) he has been convicted of an offence involving moral
turpitude, and such conviction has not been reversed or he
has not been granted full pardon in respect of such offence,
(iii) he fails to attend the proceedings of the Board for
consecutive three months without any valid reason or he
fails to attend less than three-fourth of the sittings in a year.
6. Power of Juvenile Justice Board.- (1) Where a Board
has been constituted for any district or a group of district,
such Board shall, notwithstanding anything contained in any
other law for the time being in force but save as otherwise
expressly provided in this Act, have power to deal
exclusively with all proceedings under this Act relating to
juvenile in conflict with law.
xxx xxx xxx
7. Procedure to be followed by a Magistrate not
empowered under the Act.- (1) When any Magistrate not
empowered to exercise the powers of a Board under this
Act is of the opinion that a person brought before him
under any of the provisions of this Act (other than for the
purpose of giving evidence), is a juvenile or the child, he
shall without any delay record such opinion and forward
the juvenile or the child and the record of the proceeding
to the competent authority having jurisdiction over the
proceeding.
(2) The competent authority to which the proceeding is
forwarded under sub-section (1) shall hold the inquiry as if
the juvenile or the child had originally been brought before
it.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 39
7-A. Procedure to be followed when claim of
juvenility is raised before any Court.- (1) Whenever a
claim of juvenility is raised before any Court or a court is of
the opinion that an accused person was a juvenile on the
date of commission of the offence, the Court shall make an
inquiry, take such evidence as may be necessary (but not an
affidavit) so as to determine the age of such person, and
shall record a finding whether the person is a juvenile or a
child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any
Court and it shall be recognised at any stage, even after final
disposal of the case, and such claim shall be determined in
terms of the provisions contained in this Act and the rules
made thereunder, even if the juvenile has ceased to be so on
or before the date of commencement of this Act.
(2) If the Court finds a person to be a juvenile on the date of
commission of the offence under sub-section (1), it shall
forward the juvenile to the Board for passing appropriate
order, and the sentence, if any, passed by a court shall be
deemd to have no effect.
xxx xxx xxx
14. Inquiry by Board-[(1)] Where a juvenile having been
charged with the offence is produced before a Board, the
Board shall hold the inquiry in accordance with the
provisions of this Act and may make such order in relation
to the juvenile as it deems fit:
xxx xxx xxx
15. Order that may be passed regarding juvenile.- (1)
Where a Board is satisfied on inquiry that a juvenile has
committed an offence, then, notwithstanding anything to the
contrary contained in any other law for the time being in
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 40
force, the Board may, if it thinks so fit,-
(a) allow the juvenile to go home after advice or admonition
following appropriate inquiry against and counseling to the
parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and
similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to
pay a fine, if he is over fourteen years of age and earns
money;
(e) direct the juvenile to be released on probation of good
conduct and placed under the care of any parent, guardian or
other fit person, on such parent, guardian or other fit person
executing a bond, with or without surety, as the Board may
require, for the good behaviour and well-being of the
juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good
conduct and placed under the care of any fit institution for
the good behaviour and well-being of the juvenile for any
period not exceeding three years;
(g) make an order directing the juvenile to be sent to a
special home for a period of three years:
Provided that the Board may, if it is satisfied that having
regard to the nature of the offence and the circumstances of
the case, it is expedient so to do, for reasons to be recorded,
reduce the period of stay to such period as it thinks fit.]
(2) The Board shall obtain the social investigation report on
juvenile either through a probation officer or a recognised
voluntary organization or otherwise, and shall take into
consideration the finding of such report before passing an
order.
(3) Where an order under clause (d), clause (e) or clause (f)
of sub-section (1) is made, the Board may, if it is of opinion
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 41
that in the interests of the juvenile and of the public, it is
expedient so to do, in addition make an order that the
juvenile in conflict with law shall remain under the
supervision of a probation officer named in the order during
such period, not exceeding three years as may be specified
therein, and may in such supervision order impose such
condition as it deems necessary for the due supervision of
the juvenile in conflict with law:
Provided that if at any time afterwards it appears to the
Board on receiving a report from the probation officer or
otherwise, that the juvenile in conflict with law has not been
of good behaviour during the period of supervision or that
the fit institution under whose care the juvenile was placed
is no longer able or willing to ensure the good behaviour and
well-being of the juvenile it may, after making such inquiry
as it deems fit, order the juvenile in conflict with law to be
sent to a special home.
(4) The Board shall while making a supervision order under
sub-section (3), explain to the juvenile and the parent,
guardian or other fit person institution, as the case may be,
under whose care the juvenile has been placed, the terms
and conditions of the order and shall forthwith furnish one
copy of the supervision order to the juvenile, the parent,
guardian or other fit person or fit institution, as the case may
be, the sureties, if any, and the probation officer.
29. Child Welfare Committee.- (1) The State government
may, by notification in Official Gazette, constitute for every
district or group of district, specified in the notification, one
or more Child Welfare Committees for exercising the
powers and discharge the duties conferred on such
Committees in relation to child in need of care and
protection under this Act.
(2) The Committee shall consist of a Chairperson and four
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 42
other members the State Government may think fit to
appoint, of whom at least one shall be woman and another,
an expert on matters concerning children.
(3) The qualification of the Chairperson and member, and
the tenure which they may be appointed shall be such as
may be prescribed.
(4) The appointment of any member of the Committee may
be terminated, after holding inquiry, by the State
Government, if-
(i) he has been found guilty of misuse of power vested under
this Act;
(ii) he has been convicted of an offence involving moral
turpitude, and such conviction has not been reversed or he
has not been granted full pardon in respect of such offence;
(iii) he fails to attend the proceedings of the Committee for
consecutive three months without any valid reason or he
fails to attend less than three-fourth of the sitting in a year.
(5) The Committee shall function as a Bench of
Magistrates and shall have the powers conferred by the
Code of Criminal Procedure, 1973 (2 of 1974) on a
Metropolitan Magistrate or, as the case may be, a Judicial
Magistrate of the first class.
30. Procedure, etc., in relation to Committee -
(1) The Committee shall meet at such times and shall
observe such rules of procedure in regard to the
transaction of business at its meetings, as may be
prescribed.
(2) A child in need of care and protection may be
produced before an individual member for being placed
in safe custody or otherwise when the Committee is not
in session.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 43
(3) In the event of any difference of opinion among the
members of the Committee at the time of any interim
decision, the opinion of the majority shall prevail but
where there is no such majority the opinion of the
Chairperson shall prevail.
(4) Subject to the provisions of sub-section (1), the
Committee may act, notwithstanding the absence of any
member of the Committee, and no order made by the
Committee shall be invalid by reason only of the absence
of any member during any stage of the proceeding.
31. Powers of Committee
(1) The Committee shall have the final authority to
dispose of cases for the care, protection, treatment,
development and rehabilitation of the children as well
as to provide for their basic needs and protection of
human rights.
(2) Where a Committee has been constituted for any area,
such Committee shall, notwithstanding anything
contained in any other law for the time being in force
but save as otherwise expressly provided in this Act,
have the power to deal exclusively with all proceedings
under this Act relating to children in need of care and
protection.
32. Production before Committee
(1) Any child in need of care and protection may be
produced before the Committee by one of the following
persons:--
(i) any police officer or special juvenile police unit or a
designated police officer;
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 44
(ii) any public servant;
(iii) childline, a registered voluntary organisation or by
such other voluntary organisation or an agency as may be
recognised by the State Government;
(iv) any social worker or a public spirited citizen; or
(v) by the child himself.
2[Provided that the child shall be produced before the
Committee without any loss of time but within a period of
twenty-four hours excluding the time necessary for the
journey.]
(2) The State Government may make rules consistent with
this Act to provide for the manner of making the report to
and to the Committee and the manner of sending and
entrusting the child to children's home pending the inquiry
33. Inquiry-(1) On receipt of a report under section 32, the
Committee shall hold an inquiry in the prescribed manner and
the Committee, on its own or on the report from any person or
agency as mentioned in sub-section (1) of section 32, may pass
an order to send the child to the children's home for speedy
inquiry by a social worker or child welfare officer.
(2) The inquiry under this section shall be completed within
four months of the receipt of the order or within such shorter
period as may be fixed by the Committee:
Provided that the time for the submission of the inquiry
report may be extended by such period as the Committee may,
having regard to the circumstances and for the reasons recorded
in writing, determine.
(3) The State Government shall review the pendency of cases
of the Committee at every six months, and shall direct the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 45
Committee to increase the frequency of its sittings or may cause
the constitution of additional Committees.
(4) After the completion of the inquiry, if, the Committee is of
the opinion that the said child has no family or ostensible
support or is in continued need of care and protection, it may
allow the child to remain in the children's home or shelter home
till suitable rehabilitation is found for him or till he attains the age
of eighteen years.
xxx xxx xxx
38. Transfer - (1) If during the inquiry it is found that the
child hails from the place outside the jurisdiction of the
Committee, the Committee shall order the transfer of the child
to the competent authority having jurisdiction over the place of
residence of the child.
(2) Such juvenile or the child shall be escorted by the staff of
the home in which he is lodged originally.
(3) The State Government may make rules to provide for the
travelling allowances to be paid to the child.
39. Restoration
(1 ) Restoration of and protection to a child shall be the
prime objective of any children's home or the shelter home.
(2) The children's home or a shelter home, as the case may
be, shall take such steps as are considered necessary for the
restoration of and protection to a child deprived of his
family environment temporarily or permanently where such
child is under the care and protection of a children's home
or a shelter home, as the case may be.
(3) The Committee shall have the powers to restore any
child in need of care and protection to his parent,
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 46
guardian, fit person or fit institution, as the case may be,
and give them suitable directions.
xxx xxx xxx
49. Presumption and determination of age - (1) Where
it appears to a competent authority that person brought
before it under any of the provisions of this Act (otherwise
than for the purpose of giving evidence) is a juvenile or the
child, the competent authority shall make due inquiry so
as to the age of that person and for that purpose shall take
such evidence as may be necessary (but not an affidait) and
shall record a finding whether the person is a juvenile or the
child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to
have become invalid merely by any subsequent proof that
the person in respect of whom the order has been made is
not a juvenile or the child, and the age recorded by the
competent authority to be the age of person so brought
before it, shall for the purpose of this Act, be deemd to be
the true age of that person‖.
(Emphasis supplied)
56. The two children before this court hail from West Bengal. The
legislature has anticipated this position and enacted Section 50 in the JJ Act
2000, which reads as follow:-
―50. Sending a juvenile or child outside jurisdiction - In
the case of a juvenile or the child, whose ordinary place of
residence lies outside the jurisdiction of the competent
authority before which he is brought, the competent
authority may, if satisfied after due inquiry that it is
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 47
expedient so to do, send the juvenile or the child back to a
relative or other person who is fit and willing to receive
him at his ordinary place of residence and exercise proper
care and control over him, notwithstanding that such place
of residence is outside the jurisdiction of the competent
authority; and the competent authority exercising
jurisdiction over the place to which the juvenile or the child
is sent shall in respect of any matter arising subsequently
have the same powers in relation to the juvenile or the child
as if the original order had been passed by itself‖.
(Emphasis supplied)
57. In exercise of the powers under Section 68 of the JJ Act, 2000, the
Juvenile Justice (Care & Protection of Children) Rules, 2007 (hereafter
referred to as the ‗JJ Rules) have also been notified. Rule 25 provides the
functions and powers of the Child Welfare Committee ('CWC' hereafter) and
reads as follows:-
"Rule 25. Functions and powers of the Committee- The
Committee shall perform the following functions to achieve
the objectives of the Act, namely :-
(a) take cognizance of and receive children produced
before the Committee;
(b) decide on the matters brought before the
Committee:
(c) reach out to such children in need of care and
protection who are not in a position to be produced before
the Committee, being in difficult circumstances, with
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 48
support from the District Child Protection Unit or State
Child Protection Unit or the State Government;
(d) conduct necessary inquiry on all issues relating to
and affecting the safety and well-being of the child;
(e) direct the Child Welfare Officers or Probation
Officers or Non-Government Organisations to conduct
social inquiry and submit a report to the Committee;
(f) ensure necessary care and protection, including
immediate shelter;
(g) ensure appropriate rehabilitation and restoration,
including passing necessary directions to parents or
guardians or fit persons or fit institutions in this regard,
in addition to follow-up and co-ordination with District
Child Protection Unit or State Adoption Resource Agency
and other agencies;
(h) direct the Officer-in-Charge of Children's homes to
receive children requiring shelter and care;
(i) document and maintain detailed case record along
with a case summary of every case dealt by the Committee;
(j) provide a child-friendly environment for children;
(k) recommend ―fit institutions‖ to the State Government
for the care and protection of children;
(l) declare "fit persons";
(m) declare a child legally free for adoption;
(n) keep information about and take necessary follow-up
action in respect of missing children in their jurisdiction;
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 49
(o) maintain liaison with the Board in respect of cases
needing care and protection;
(p) visit each institution where children are sent for care
and protection or adoption at least once in three months to
review the condition of children in institutions, with
support of the State Government and suggest necessary
action;
(q) monitor associations and agencies within their
jurisdiction that deal with children in order to check on the
exploitation and absue of children;
(r) co-ordiante with the police, Labour Department and
other agencies involved in the care and protection of
children with the support of District Child Protection Unit
or State Child Protection Unit or State Government;
(s) liaison and network with the corporate sector and
non-governmental organization for any of the above,
including for social inquiry, restoration and rehabilitation,
as and when required; and
(t) maintain a suggestion box to encourage inputs from
children and adults alike and take necessary action.‖
(Emphasis by me)
58. The legislature has thus anticipated a situation, where a juvenile or a
child may be produced before a Magistrate who is not a member of the
Juvenile Justice Board ('JJB' hereafter), and prescribed that such juvenile or
child shall be treated in the manner set out in section 7 of the statute. This
statutory provision mandates that the juvenile or the child, as well as a record
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 50
of the proceedings, shall be forthwith forwarded to the competent authority.
In fact, sub-section (2) of section 7 renders non-est proceedings which may
have been conducted and are forwarded by the Magistrate, inasmuch as it
requires the competent authority, to whom the child and proceedings are
forwarded, to hold a de novo and fresh enquiry, as if the juvenile or child had
been originally produced before it. Section 12 mandates that when any
arrested or detained person accused of a bailable or non-bailable offence, who
is apparently a juvenile, is arrested or brought before a JJB, then
notwithstanding the provisions of the Code of Criminal Procedure or any
other law for the time being in force, such person is required to be released on
bail with or without surety. In case the JJB is of the view that the release may
result in exposing the person, to criminals, danger or it would defeat the ends
of justice, he shall be sent to an observation home or a place of safety for the
period which may be specified.
59. Sub-section (1) of section 15 of the statute, sets out the several orders
which may be passed by the Juvenile Justice Board on enquiry and keeping in
view the facts and circumstances of the case.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 51
60. Section 29 is concerned with the provision of a Child Welfare
Committee (CWC) in every district which exercises jurisdiction over children
in need of ―care and protection. The power to be followed by the CWC is
stipulated in Section 30 of the Statute while vide powers have been conferred
on it under Section 31.
61. The legislature has anticipated movement of children from one place to
another. Therefore, in Section 38 it has been prescribed that if a child hails
from a place outside the jurisdiction of the CWC before whom he/she has
been produced, the child shall be ordered to be produced before the CWC
heaving jurisdiction over place of residence of the child.
62. So far as restoration of custody of the children is concerned, the JJ Act
of 2000 has also provided the manner in which the same is to be effected.
Section 39 stipulates that restoration of and protection to a child shall be the
prime objective of any children's home or the shelter home which is
mandatorily required to take such steps as are considered necessary for the
restoration and protection to a child deprived of this family environment
temporarily or permanently.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 52
63. Rule 25 of the JJ (Care & Protection of Children) Rules, 2007 dealing
with the functions and powers of the Child Welfare Committee also provides
the steps which a committee is required to take so far as custody of children is
concerned. These include the provision of, inter alia, immediate shelter,
ensuring appropriate rehabilitation, restoration of custody as well as making
the declaration of a ―fit person‖. Rule 25 enables the CWC to make
appropriate directions to parents/guardians/fit persons/fit institutions in this
regard, in addition to follow up and coordination with district child protection
units or state adoption resource agency's and other agencies.
64. These statutory provisions are efforts to discharge the responsibility of
the Government of India to ensure the requisite constitutional protections
guaranteed under article 15(3) of the Constitution of India, the prohibitions
contained in Article 23 and in the discharge of its obligations under article
39(e) and (f), 45 and 47 which impose the primary responsibility upon the
State of ensuring that all the needs of children are met and their basic human
rights are fully protected. The statute originally enacted in the year 1986, has
been amended, to ensure all the rights of the child and standards
internationally recognised and ratified by the Government of India under the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 53
international instruments are also incorporated and adequately provided for.
This legislation has thus aimed at providing a juvenile justice system for
juveniles in conflict with law as well as children in need of care and
protection by adopting a child friendly approach in adjudication and
disposition of matters in the best interest of children and for their
rehabilitation, keeping in view the developmental needs of the children.
The Immoral Traffic (Prevention) Act, 1956
65. The instant case is thus concerned with the two persons apparently
under eighteen years of age have been rescued by the police in action taken
under section 15 & section 16 of the IT Act of 1956. As per the copy of the
FIR placed on record, one of the two rescued persons is the complainant in
the case. These two persons have been produced before the Magistrate
dealing with criminal matters in exercise of ordinary criminal jurisdiction
under the Code of Criminal Procedure. An issue has been raised with regard
to the competence of the Magistrate to conduct an enquiry in respect of
rescued children in exercise of powers under Section 17A of the IT Act in
view of the enactment of the JJ Act, 2000 and the manner in which conflict, if
any, between the two statutes is to be resolved.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 54
66. The complaint has been registered by the police under the provisions of
the Indian Penal Code as well as those of Immoral Traffic (Prevention) Act,
1956 (the 'IT Act'). It is necessary to examine the statutory spirit and
intendment of that statute as well so as to answer the issue raised herein.
67. The ‗International Convention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of others' was approved
by the General Assembly of the UN on 2nd December, 1949. Article 23 of the
Convention prohibits trafficking in human beings and any contravention of
this prohibition is an offence punishable by law. The Government of India
ratified the Convention in the year 1950.
68. Article 23 of the Constitution of India lays down that traffic in human
beings, beggar and other similar forms of forced labour are prohibited and
contravention thereof shall be an offence punishable in accordance with law.
Article 35 of the Constitution obligates the Parliament to make laws for
prescribing punishment for acts declared as offences under Part III as soon as
possible after the commencement of the Constitution.
69. In discharge of the obligations under the international conventions and
in compliance with the constitutional mandate, the Parliament passed the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 55
‗Suppression of Immoral Traffic in Women and Girls Act, 1956' which
received the assent of the President of India on the 30th of December, 1956.
70. The statement of objects and reasons of this Act, stated that it was
considered necessary and desirable to secure uniformity in applicable
legislation all over the country as well as to provide a statute which was
sufficiently deterrent for the purpose.
A special feature of the Bill was that it provided that no person or
authority, other than the state government, could establish or maintain any
protective home except under a licence issued by the state government. This
statute was amended twice, firstly in 1978 and then again in 1986. By virtue
of section 3 of the amendment Act of 1986 (Act 44 of 1986), the
nomenclature of the statute was changed to the Immoral Traffic
(Prevention) Act, 1956 ('IT Act' hereafter).
71. Some of the relevant provisions of the IT Act which are relevant for the
purposes of the present consideration, and have been relied upon during the
course of arguments, for purposes of convenience are set out hereafter :-
2. Definitions--In this Act. unless the context
otherwise requires
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 56
(a) xxx xxx xxx
(aa) ―child― means a person who has not completed the
age of sixteen years;
(cb) "minor" means a person who has completed the age
of sixteen years but has not completed the age of eighteen
years;]‖
3. Punishment for keeping a brothel or allowing premises
to be used as a brothel.--
(1) Any person who keeps or manages, or acts or assists in the
keeping or management of, a brothel shall be punishable on
first conviction with rigorous imprisonment for a term of not
less than two years and which may extend to three years and
also with fine which may extend to ten thousand rupees and in
the event of a second or subsequent conviction, with rigorous
imprisonment for a term which shall not be less than three
years and which may extend to seven years and shall also be
liable to fine which may extend to two lakh rupees
xxx xxx xxx
4. Punishment for living on the earnings of prostitution
.--
(1) Any person over the age of eighteen years -
who knowingly lives, wholly or in part, on the
earnings of the prostitution of any other person shall
be punishable with imprisonment for a term which
may extend to two years, or with fine which may
extend to one thousand rupees, or with both, and
where such earnings relate to the prostitution of a
child, shall be punishable with imprisonment for a
term of not less than seven years and not more than
ten years.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 57
(2) Where any person over the age of eighteen
years is proved,--
(a) to be living with,or to be habitually in
the company of, a prostitute; or
(b) to have exercised control, direction or
influence over the movements of a
prostitute in such a manner as
to show that such person is aiding abetting
or compelling her prostitution; or
(c)to be acting as a tout or pimp on behalf
of a prostitute, it shall be presumed, until
the contrary is proved, that such person is
knowingly living on the earnings of
prostitution of another person within the
meaning of sub-section (1).
7. Prostitution in or in the vicinity of public place .--
(1) Any person who carries on prostitution and the
person with whom such prostitution is carried on, in
any premises:
(a) which are within the area or areas, notified
under sub-section (3), or
(b) which are within a distance of two hundred
meters of any place of public religious worship,
educational institution, hotel, hospital, nursing
home or such other public place of any kind as
may be notified in this behalf by the
Commissioner of Police or Magistrate in the
manner prescribed,
shall be punishable with imprisonment for a term
which may extend to three months.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 58
[(1-A) Where an offence committed under sub-section (1)
is in respect of a child, the person committing the
offence shall be punishable with imprisonment of either
description for a term which not be less than seven
years but which may be for life or for a term which may
extend to ten years and shall also be liable to fine:
Provided that the Court may, for adequate and
special reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term of
less than seven years.
10-A. Detention in a corrective institution .--(1) Where,--
(a) a female offender is found guilty of an offence under
Section 7, and
(b) the character, state of health and mental condition of
the offender and the other circumstances of the case are
such that it is expedient that she should be subject to
detention for such term and such instruction and discipline
as are conducive to her correction, it shall be lawful for
the court to pass, in lieu of a sentence of imprisonment, an
order for detention in a corrective institution for such
term, not being less than two years and not being more
than seven years, as the court thinks fit:
xxx xxx xxx‖
72. Having regard to the submissions which have been made, Section 16
and 17 of the IT Act, 1956 may also be set down and read as follows :-
―16. Rescue of [person]-(1) where a magistrate has reason
to believe from information received from the police or from
any other person authorised by the State Government in this
behalf or otherwise, that [any person is living, or is carrying
on, or is being made to carry on, prostitution in a brothel,] he
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 59
may direct a police officer not below the rank of a sub-
inspector to enter such brothel, and to remove therefrom
such [person] and produce [him] before him.
(2) The police officer, after removing the [person], shall
forthwith produce [him] before the magistrate issuing the
order.
17. Intermediate custody of [persons] removed under
section 15 or rescued under section 16.-(1) When the
special police officer removing a [person] under sub-section
(4) of section 15 or a police officer rescuing a [person] under
sub-section (1) of section 16, is for any reason unable to
produce [him] before the appropriate magistrate as required
by sub-section (5) of section 15, or before the magistrate
issuing the order under sub-section (2) of section 16, he shall
forthwith produce [him] before the nearest magistrate of any
class, who shall pass such orders as he deems proper for
[his] safe custody until [he] is produced before the
appropriate magistrate, or as the case may be, the magistrate
issuing the order :
Provided that no [person] shall be -
(i) detained in custody under this sub-section for a period
exceeding ten days from the date of the order under this sub-
section; or
(ii) restored to or placed in the custody of a person who may
exercise a harmful influence over him.
(2) When the [person] is produced before the appropriate
magistrate under sub-section (5) of section 15 or the
magistrate under sub-section (2) of section 16, he shall, after
giving [him] an opportunity of being heard, cause an
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 60
inquiry to be made as to the correctness of the
information received under sub-section (1) of section 16,
the age, character and antecedents of the [person] and
the suitability of [his] parents, guardian or husband for
taking charge of [him] and the nature of the influence
which the conditions in [his] home are likely to have on
[him] if [he] is sent home, and, for this purpose, he may
direct a probation officer appointed under the Probation of
Offenders Act, 1958, (20 of 1958), to inquire into the above
circumstances and into the personality of the [person] and
the prospects of his rehabilitation.
(3) The magistrate may, while an inquiry is made into a
case under sub-section (2), pass such orders as he deems
proper for the safe custody of the [person]:
(Provided that where a person rescued under section 16 is a
child or minor, it shall be open to the magistrate to place
such child or minor in any institution established or
recognized under any Children Act for the time being in
force in any State for the safe custody of children:
Provided further that, no [person] shall be kept in custody for
the purpose for a period exceeding three weeks from the date
of such an order, and no [person] shall be kept in the custody
of a person likely to have a harmful influence over [him].
(4) Where the magistrate is satisfied, after making an
inquiry as required under sub-section (2),-
(a) that the information received is correct; and
(b) that he is in need of care and protection,
he may, subject to the provisions of sub-section (5), make an
order that such [person] be detained for such period, being
not less than one year and not more than three years, as may
be specified in the order, in a protective home, or in such
other custody as he shall, for reasons to be recorded in
writing, consider suitable:
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 61
Provided that such custody shall not be that of a person or
body of persons of a religious persuasion different from that
of the [person] and that those entrusted with the custody of
the [person] including the persons in charge of a protective
home, may be required to enter into a bond which may,
where necessary and feasible, contain undertakings based on
directions relating to the proper care, guardianship,
education, training and medical and psychiatric treatment of
the [person] as well as supervision by a person appointed by
the court, which will be in force for a period not exceeding
three years.
(5) In discharging his functions under sub-section (2), a
magistrate may summon a panel of five respectable
persons, three of whom shall, wherever practicable, be
women, to assist him; and may, for this purpose, keep a
list of experienced social welfare workers, particularly
women social welfare workers, in the field of suppression
of immoral traffic in [persons].
(6) An appeal against an order made under sub-section (4)
shall lie to the court of session whose decision on such
appeal shall be final.]‖
(emphasis supplied)
73. It is also noteworthy, that by a statutory amendment with effect from
26th January, 1987, the following section 17A of the IT Act of 1956 was
inserted :-
―17A. Conditions to be observed before placing
persons rescued under section 16 to parents or guardians
- Notwithstanding anything contained in sub-section (2) of
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 62
section 17, the magistrate making an inquiry under section
17 may, before passing an order for handing over any
person rescued under section 16 to the parents, guardian or
husband, satisfy himself about the capacity or genuineness
of the parents, guardian or husband to keep such person
by causing an investigation to be made by a recognised
welfare institution or organisation.
I now propose to examine the issues raised in the present proceedings.
If persons recovered by the police in a raid under Sections 15 or 16 of the
IT Act, 1956 are under 18 years of age, are they to be dealt with under the
IT Act, 1956 or in accordance with the JJ Act, 2000?
In order to find answers to the questions arising in the present case, we
may firstly consider the principles of statutory interpretation which would
guide the present adjudication.
IT Act being a penal statute needs to be strictly construed
74. It has been submitted that the IT Act, 1956 is a penal statute which
deals with all persons whereas the JJ Act, 2000 is a specific enactment for
persons under 18 years of age.
75. Penal statutes are those which provide for penalties for disobedience of
the law and are directed against the offender by making him liable to
imprisonment , fine, forfeiture or other penalty. If the statute enforces
obedience to the command of the law by punishing the offender and not by
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 63
the offender merely redressing an individual who may have suffered, it will be
classified as penal. The IT Act largely defines offences and stipulates
punishments for their commission. It is clearly a penal statute.
76. The general principles which govern interpretation of penal statutes are
well settled. The summation thereof in the renowned text ―Principles of
Statutory Interpretation‖ (12th Edition) by Justice G.P. Singh, can be usefully
extracted and reads as follows :
―(i) penal statutes are to be strictly construed. In penal
statutes when in doubt that 2 or more constructions are
equally open, doubt is resolved in favour of the alleged
offender . (Ref: Tolaram vs. State of Bombay AIR 1954 SC
496 : 1955 (1) SCR 158) (see note 35 pg 895 ) xxx‖
Thus, it is very clear that the IT act being a penal statute has to be
strictly construed.
A later enactment would generally prevail over an earlier statute
77. It is also clear that the JJ Act, 2000 is a later enactment compared to the
IT Act, 1956. The question now is that which of the two enactments will
prevail and how is ambiguity or overlap, if any, between the two enactments
vis-a-vis each other to be resolved.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 64
78. This issue can be examined on the fundamental and accepted tests of
legislative interpretation which also have been noticed by Justice G.P. Singh
in the 'Principles of Statutory Interpretation', (12th Ed. 2010). At page 373 of
this renowned text, the tests which apply to the issue as to which of the two
enactments shall prevail are stated thus:-
―Another test that is applied is that the later enactment
normally prevails over the earlier one. (Ref: A.P. State
Financial Corporation vs. Official Liquidator, AIR 2000 SC
2642) It is also relevant to consider as to whether any of the
two enactments can be described a special one; in that case
the special one may prevail over the more general one
notwithstanding that the general one is later in time.(Ref :
Sanwarmal Karjiwal v. Vishwa Co-operative Housing
Society Ltd., AIR 1990 SC 1563)‖
79. In the case in hand the IT Act is prior and the JJ Act is a later
enactment. But this by itself may not be determinative of the matter in the
present case. Going by the above principles, we need to first determine
whether any of the two enactments can be described as a special one, as the
special one would prevail over the more general one.
Whether the IT Act and the JJ Act operate in the same field?
80. To ascertain as to which of the two statutes is special, it is necessary to
first consider as to whether the two legislations - the IT Act and the JJ Act
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 65
operate in the same field and whether there is apparent conflict in respect of
any of the provisions.
81. The IT Act deals generally with persons of all ages involved in
prostitution and can be classified as a prior general law. JJ Act was enacted
later in time and is confined in its application to a special class of persons i.e.,
those below eighteen years. It deals specifically with juveniles in conflict
with the law (i.e, child offenders) as well as children in need of care and
protection and would be termed as a later particular law.
The issue, thus, can be looked at from yet another angle that is to
examine the legislations from the perspective of say as a conflict between a
prior general law and a later particular law.
82. It is well settled, that a prior particular or special law is not readily held
to be impliedly repealed by the later general enactment (Ref: Unnoda Persaud
Mookerjee vs. Kristocoomar Moitra (1872) 19 WR 5; Chandra Prakash
Tiwari vs. Shakuntala Shukla AIR 2002 SC 2322 : (2002) 6 SCC 127).
However, a prior general Act may be affected by a subsequent particular or
special Act , if the subject matter of the particular Act prior to its enforcement
was being governed by the general provisions of the earlier Act. (Ref : Life
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 66
Insurance Corporation vs. D.J. Bahadur AIR 1980 SC 2181 : (1981) 1 SCC
315; Damji Valji Shah vs. LIC AIR 1966 SC 135 : (1965) 3 SCR 665). It
needs no elaboration that in such a case the operation of the particular Act
may have the effect of partially repealing the general Act, or curtailing its
operation, or adding conditions to its operation for the particular cases . (Ref:
Mount vs. Taylor (1868) LR 3 CP 645).
83. It is another well settled rule of construction, that if a later statute does
not describe an offence created by a former statute and affixes a different
punishment, varying the procedure, the earlier statute is treated as having been
repealed by the later statute. (Ref: AIR 1983 SC 150: (1983) 1 SCC 177 T.
Barai vs. Henry Ah Hoe & Anr.)
84. Going by the above discussion, it is clear that a later special statute
would normally prevail over an earlier general one.
Test of object of the Statutes
85. It is trite that a statute or a rule has a structural or systemic quality that
is reflected in some measure in the meaning of the other principal terms.
Judicial process is something more than merely a cataloguing procedure. In
construing and applying statutes, a court is required to place words in the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 67
statute beyond general context. Examination of the statutes would be
incomplete without looking to the object of the statutory provision and the
nature of the evil it seeks to avert. (Ref: Reed Dickerson in "The
Interpretation and Application of Statutes")
86. Mr. Madhukar drew my attention to the pronouncement of the Apex
Court reported at (1981) 1 SCC 315 Life Insurance Corporation of India vs.
D.J. Bahadur & Ors. Interestingly, the question raised before this court (as to
whether the JJ Act, 2000 is a special Act and the IT Act, 1956 is a general
statute so that the later pro tanto repeals or prevails over the earlier one), is
similar to the question which was being considered by the Supreme Court in
the above pronouncement.
87. In this case, an issue was raised as to whether two settlements arrived at
between the management and the workmen under the provisions of the
Industrial Disputes Act, 1947 would operate in view of the provisions of the
LIC Act, 1956 which vested power in the LIC and the Central Government to
fix the terms and conditions of service of the corporation employees. This
was answered on the consideration as to whether the LIC Act of 1956 is a
special Act and the ID Act, 1947 a general statute which stood repealed or
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 68
prevailed over by the later statute. It was suggested that as there was an
apparent conflict between the two, the ID Act, 1947 would prevail over the
LIC Act, 1956. The Supreme Court reiterated the position that an implied
repeal is the last judicial refuge and unless driven to that conclusion, it is
rarely resorted to.
88. In LIC vs. D.J. Bahadur & Ors. supra, the discussion by the Apex
Court in para 51 to 53 as well as 55 on the question as to whether a statute is a
special or a general statute is important and deserves to be considered in
extenso. The same reads as follows :-
―51. In determining whether a statute is a special or a general
one, the focus must be on the principal subject matter plus the
particular perspective. For certain purposes, an Act may be
general and for certain other purposes it may be special and
we cannot blur distinctions when dealing with finer points of
law. In law, we have a cosmos of relativity not absolutes-so
too in life. The ID Act is a special statute devoted wholly to
investigation and settlement of industrial disputes which
provides definitionally for the nature of industrial disputes
coming within its ambit. It creates an infra-structure for
investigation into, solution of and adjudication upon industrial
disputes. It also provides the necessary machinery for
enforcement of awards and settlements. From alpha to omega
the ID Act has one special mission-the resolution of industrial
disputes through specialised agencies according to specialised
procedures and with special reference to the weaker categories
of employees coming within the definition of workmen.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 69
Therefore, with reference to industrial disputes between
employers and workmen, the ID Act is a special statute, and
the L.I.C. Act does not speak at all with specific reference to
workmen. On the other hand, its powers relate to the general
aspects of nationalisation, of management when private
businesses are nationalised and a plurality of problems which,
incidentally, involve transfer of service of existing employees
of insurers. The workmen qua workmen and industrial
disputes between workmen and the employer as such are
beyond the orbit of and have no specific or special place in the
scheme of the L.I.C. Act. And whenever there was a dispute
between workmen and management the ID Act mechanism
was resorted to.
52. What are we confronted with in the present case, so that I
may determine as between the two enactments which is the
special? The only subject which has led to this litigation and
which is the bone of contention between the parties is 'an
industrial dispute between the Corporation and its workmen'
qua workmen. If we refuse to be obfuscated by legal
abracadabra and see plainly what is so obvious, the conclusion
that flows, in the wake of the study I have made, is that vis-a-
vis 'industrial disputes' at the termination of the settlement as
between the workmen and the Corporation the ID Act is a
special legislation and the L.I.C. Act a general legislation.
Likewise, when compensation on nationalisation is the
question, the L.I.C. Act is the special statute. An application
of the generalia maxim as expounded by English textbooks
and decisions leaves us in no doubt- that the ID Act being
special law, prevails over the L.I.C. Act which is but general
law.
53. I am satisfied in this conclusion by citations but I content
myself with a recent case where this Court tackling a closely
allied question came to the identical conclusion. [U.P. State
Electricity Board v. H.S. Jain]. The problem that arose there
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 70
was as to whether the standing orders under the Industrial
Employment (Standing Orders) Act, 1946, prevailed as
against Regulations regarding the age of superannuation made
by the Electricity Board under the specific power vested by
Section 79(c) of the Electricity (Supply) Act, 1948, which was
contended to be a special law as against the Industrial
Employment (Standing Orders) Act. This Court (a bench of
three Judges) speaking through Chinnappa Reddy, J.,
observed : (ibid at 365-66).
The maxim "Generalia specialibus non derogant" is quite well
known. The rule flowing from the maxim . has been explained
in Mary Seward v. Veera Cruz, (1884) 10 AC 59 as follows :
"Now if anything be certain it is this, that where there are
general "words in a later Act capable of reasonable and
sensible application without extending them to subjects
specially dealt with by earlier legislation, you are not to hold
that earlier and special legislation indirectly repealed, altered,
or derogated from merely by force of such general words,
without any indication of a particular intention to do so".
In J. K. Cotton Spinning and Weaving Mills Co. Ltd. v. State
of Uttar Pradesh : (1961)ILLJ540SC , this Court observed (at
page 1174) :
―The rule that general provisions should yield to specific
provisions is not an arbitrary principle made by lawyers and
Judges but springs from the common understanding of men
and women that when the same person gives two directions
one covering a large number of matters in general and another
to only some of them his intention is that these latter
directions should prevail as regards these while as regards all
the rest the earlier direction should have effect.
We have already shown that the Industrial Employment
(Standing Orders) Act is a special Act dealing with a specific
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 71
subject, namely with conditions of service, enumerated in the
Schedule, of workmen in industrial establishments. It is
impossible to conceive that Parliament sought to abrogate the
provisions of the Industrial Employment (Standing Orders)
Act embodying as they do hard won and precious rights of
workmen and prescribing as they do an elaborate procedure,
including a quasi-judicial determination, by a general,
incidental provision like Section 79(c) of the Electricity
(Supply) Act. It is obvious that Parliament did not have before
it the Standing Orders Act when it passed the Electricity
(Supply) Act and Parliament never meant that the Standing
Orders Act should stand pro tanto repealed by Section 79(c) of
the Electricity Supply Act. We are clearly of the view that the
provisions of the Standing Orders Act must prevail over
Section 79(c) of the Electricity Supply Act, in regard to
matters to which the Standing Orders Act applies.‖
I respectfully agree and apply the reasoning and the
conclusion to the near-identical situation before me and hold
that the ID Act relates specially and specifically to
industrial disputes between work men and employers and
the L.I.C. Act, like the Electricity (Supply) Act, 1948, is a
general statute which is silent on workmen's disputes, even
though it may be a special legislation regulating the take-over
of private insurance business.
xxx xxx
55. What is special or general is wholly a creature of the
subject and context and may vary with situation,
circumstances and angle of vision. Law is no abstraction but
realises itself in the living setting of actualities. Which is a
special provision and which general, depends on the
specific problem, the topic for decision, not the broad
rubric nor any rule of thumb. The peaceful co-existence of
both legislations is best achieved, if that be feasible, by
allowing to each its allotted field for play. Sense and
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 72
sensibility, not mechanical rigidity gives the flexible solution.
It is difficult for me to think that when the entire industrial
field, even covering municipalities, universities, research
councils and the like, is regulated in the critical area of
industrial disputes by the ID Act, Parliament would have
provided an oasis for the Corporation where labour demands
can be unilaterally ignored. The general words in Sections 11
and 49 must be read contextually as not covering
industrial disputes between the workmen and the
Corporation. Lord Haldane had, for instance in 1915 AC 885
observed that (The Political Tradition: The Lord Chancellors,
1912 p. 221
―General words may in certain cases properly be interpreted
as having a meaning or scope other than the literal or usual
meaning. They may be so interpreted where the scheme
appearing from the language of the Legislature, read in its
entirety, points to consistency as requiring modification of
what would be the meaning apart from any context, or apart
from the general law.‖
To avoid absurdity and injustice by judicial servitude to
interpretative literality is a function of the Court and this
leaves me no option but to hold that the ID Act holds where
disputes erupt and the L.I.C. Act guides where other matters
are concerned. In the field of statutory interpretation there are
no inflexible formulae or foolproof mechanisms. The sense
and sensibility, the setting and the scheme, the perspective and
the purpose-these help the judge to navigate towards the
harbour of true intendment and meaning. The legal dynamics
of social justice also guide the court in statutes of the type
we are interpreting. These plural considerations lead me to
the conclusion that the ID Act is a special statute when
industrial disputes, awards and settlements are the topic of
controversy, as here. There may be other matters where the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 73
L.I.C. Act visa-vis the other statutes will be a special law. I
am not concerned with such hypothetical situations now.‖
(emphasis by me)
The above enunciation shows that for certain purposes, a statute may be
general while for other purposes, it may be special.
89. Mr. Manoj Ohri, learned APP, has also urged at length that the test as to
whether a statute is to be treated as a general statute on the subject or a special
enactment are well settled.
90. In AIR 1999 SC 3833 : (1999) 8 SCC 375 UOI vs. Sadha Singh, the
respondent was convicted under Section 69 of the Army Act, 1950 for the
offence of murder. The court observed that the Army Act was a special Act
which provided for investigation, trial and punishment for offences mentioned
thereunder by a special procedure. It did not contain any specific statutory
provision which was similar to Section 433A of the CrPC. The Army Act
also did not contain any provision which was contrary to Section 433A of the
CrPC. It is noteworthy that Section 433A is a special provision applicable to
all convicts who are undergoing imprisonment for life as provided thereunder.
In this background, it was held that Section 433A of the CrPC would operate
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 74
and would be applicable to a prisoner who is undergoing a sentence of
imprisonment for life and is convicted for an offence for which death is one of
the punishments provided by law or where a sentence of death imposed on a
person has been commuted under section 433 (1) CrPC to imprisonment for
life.
91. The conflict is thus resolved on a consideration of the purpose and
policy underlying the enactments and the language used in them. (Ref : AIR
1977 SC 265 (274, 275) Sarwan Singh vs. Kasturi Lal; AIR 1991 SC 855
(878) : (1990) 4 SCC 406 Ashoka Marketing Ltd. vs. Punjab National Bank)
92. In UOI vs India Fisheries Pvt. Ltd. AIR 1966 SC 35 : (1965) 3 SCR
679, the Supreme court held that there can be a situation in law where the
same statute is treated as a special statute vis-à-vis one legislation and as a
general statute vis-à-vis another legislation.
93. In the pronouncement reported at (2000) 4 SCC 427 Allahabad Bank
vs. Canara Bank, the Supreme Court was called upon to examine the
question as to whether the Companies Act, 1956 is a general or special
statute. On application of these principles, it was held in para 39 that for the
purposes of recovery of debt to banks, the high courts had rightly treated the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 75
Companies Act as a general statute and the Recovery of Debts Act, 1993
(‗RDB' Act for brevity) as a special statute which would override the general
statute.
Thus, it is clear that whether a statute is special or generally may vary
depending upon the objects, intent and reach of the statutory provision.
94. The principles with regard to interpretation of statutes have been culled
out by the Supreme Court in the judgment pronounced at AIR 1981 SC 1922 :
(1981) 4 SCC 173 K.P. Varghese vs. Income Tax Officer, Ernakulam &
Anr. The Supreme Court placed reliance on the judgment reported at (1584) 3
Co.Rep.7a referred to as the ‗Heydon case' wherein the principles were
succinctly stated in the following terms :-
―....... for the sure and true interpretation of all statutes in
general............ four things are to be discerned and considered
:
―(1) What was the common law before the making of the Act,
(2) What was the mischief and defect for which the common
law did not provide,
(3) What remedy the Parliament has resolved and appointed
to cure the disease of the Commonwealth, and
(4) The true reason of the remedy, and then the office of all
the Judges is always to make such construction as shall
suppress the mischief, and advance the remedy.‖
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 76
95. These rules were re-affirmed by the Earl of Halsbury in Eastman
Photographic Material Company v. Comptroller General of Patents,
Designs and Trade Marks LR [1898] AC 571 in the following words:-
―My Lords, it appears to me that to construe the statute in question, it is
not only legitimate but highly convenient to refer both to the former Act and
to the ascertained evils to which the former Act had given rise, and to the later
Act which provided the remedy. These three being compared I cannot doubt
the conclusion.‖
96. The prescription therefore is that an examination of the mischief or
defect which was overlooked or not provided by the prior enactment and the
real intendment of the later law must be conducted. Let us examine the two
statutes in question from the perspective of the legislative object.
97. The above narration would show the Constitutional recognition of the
State responsibility for abuse of children, discrimination and denial of
opportunities, failure to ensure the welfare of every child as well as facilities
to develop in a healthy environment, education, conditions of freedom and
dignity. The Constitution emphasizes that State Policy should be directed
against protection against exploitation and against moral and material
abandonment. Trafficking of human beings is prohibited under Article 23
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 77
while Article 15 of the Constitution enables the State to make special
provisions for children.
98. The Indian experience showed that the differential laws enacted by the
different States were not furthering the welfare of the children resulting in the
relook direction by the Supreme Court in Sheela Barse‟s case (supra) for a
parliamentary legislation. International standards prescribed making of such
laws as well as institutions and bodies entrusted with the functions of
administration of juvenile justice designed to meet the special needs of the
juveniles as well as protection of their rights, i.e., a clear recognition of the
principle that a child has to be dealt with differently than the adult. The need
to provide for special measures qua children deprived of the basics of their
physical and emotional needs, including creation of authorities devoted to
their cause, was also recognized. It was essential to bring children's law in
conformity with international instruments.
99. The JJ Act came into existence with the object of addressing the above
concerns for a very special class of persons that is those under eighteen years
of age. It draws a distinction between children in conflict with law and those
in need of care and protection provides special treatment for them, mandates a
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 78
special inquiries. The constitution of the JJB as well as the CWC is of
persons with expertise and training in child welfare related areas. Even the
Magistrate concerned is required to be one with expertise in the psychology of
children.
100. On the other hand, the IT Act is a more general prior enactment and is
concerned with all persons irrespective of ages, involved in immoral
trafficking or prostitution.
101. In its applicability, the JJ Act makes no exception so far as persons who
are found involved in issues addressed by the IT Act. The nature and extent
of the evils and concerns with regard to the special class of persons under
eighteen years of age which have weighed with the legislature in enacting the
JJ Act, 2000 as well as the mischief and injustice which it seeks to correct,
leave no manner of doubt that the JJ Act is a special subsequent enactment,
concerned specifically with the special class of all persons being under 18
years of age, who may either be in conflict with law (juveniles) or in need of
care and protection.
Therefore, when the legislations are subjected to the ‗object test' as
well, so far as children, i.e. persons under eighteen years of age is concerned,
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 79
the JJ Act, 2000 is a speical enactment would thus prevail over the provisions
of the IT Act, 1956.
Non-obstante clause in both the enactments
102. Yet another tool of statutory interpretation utilised for resolving conflict
or doubt over which statute would prevail is to be found in examination of
whether the legislature has provided a non-obstante clause in the legislation?
Such clause would give supremacy to the statute to resolve the conflict of
applicability.
103. So far as the IT Act, 1956 is concerned, a non-obstante clause is found
in Section 22B which provides that notwithstanding anything contained in the
Code of Criminal Procedure, 1973, the State Government may, if it considers
it necessary to do, direct that offences unders the Act shall be tried in a
summary way by a magistrate.
104. A non-obstante clause is also found in Section 17A of the IT Act, 1956
which stipulates that notwithstanding anything contained in sub-section (2) of
Section 17, the magistrate making an enquiry under Section 17 may satisfy
himself about the capacity or genuineness of parents, guardian or husband to
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 80
keep such person by causing an investigation to be made by a recognised
welfare institution or organisation.
105. So far as the JJ Act, 2000 is concerned, non-obstante clauses are to
be found in sections 6, 12, 15 and sub-section (2) of section 31. Section 6
confers exclusive power on th JJB to deal with all proceedings under the Act
relating to a juvenile in conflict with law, notwithstanding anything contained
in any other law. Similarly, under Section 12, any juvenile accused of a
bailable or non-bailable offence shall be released on bail notwithstanding
anything contained in the Code of Criminal Procedure, 1973 or in any other
law in force. Section 15 enables the JJB to make any of the orders on inquiry
provided in the provision regarding the juvenile on inquiry notwithstanding
anything to the contrary contained in any other law in force. So far as the
CWC is concerned, sub-section 2 of Section 31 provides that wheresoever it
has been constituted, the CWC will have the exclusive power to deal with all
proceedings under the Act relating to children in need of care and protection.
106. A non obstante clause may be utilised as a legislative device which is
usually employed to give overriding effect to certain provisions over some
contrary provisions that may be found either in the same enactment or some
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 81
other enactment, that is to say, to avoid the operation and effect of all contrary
provisions. (Ref : AIR 1984 SC 1022 UOI vs. G.M. Kokil & Ors.)
107. A pronouncement of the Apex Court reported at AIR 1987 SC 117 :
(1986) 4 SCC 447 Chandavarkar Sita Ratna v. Ashalata S. Guram sheds
valuable light on the impact of a non-obstante clause and may be usefully
adverted to. The relevant extract thereof reads as follows :
"A clause beginning with the expression "notwithstanding
anything contained in this Act or in some particular provision
in the Act or in some particular Act or in any law for the time
being in force, or in any contract" is often appended to a
section in the beginning with a view to give the enacting part
of the section in case of conflict an overriding effect over the
provision of the Act or the contract mentioned in the non
obstante clause. It is equivalent to saying that in spite of the
provision of the Act or any other Act mentioned in the non
obstante clause or any contract or document mentioned the
enactment following it will have its full operation or that the
provisions embraced in the non obstante clause would not be
an impediment for an operation of the enactment. The
expression 'notwithstanding' is in contradistinction to the
phrase 'subject to', the latter conveying the idea of a provision
yielding place to another provision or other provisions to
which it is made subject."
(Emphasis supplied)
108. In order to give effect to a non-obstante clause in a statutory provision
as against a provision in another enactment, in AIR 1998 SC 866 : (1998) 2
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 82
SCC 663 Indian Bank vs. Usha & Anr., it was observed that there must be
two contradictory provisions on the same topic in these two enactments
expressing an entirely different and contrary intention.
If this is so, then the non-obstante clause would be examined to decide
which legal provision would apply.
109. Impact of a non-obstante clause on other statutory provisions has also
fallen for consideration before the Apex Court in the pronouncement reported
at (2009) 4 SCC 94 entitled Central Bank of India vs. State of Kerala and
Ors. In para 103 of the judgment, the court held as follows :-
―A non obstante clause is generally incorporated in a
statute to give overriding effect to a particular section or
the statute as a whole. While interpreting non obstante
clause, the court is required to find out the extent to which
the legislature intended to do so and the context in which
the non obstante clause is used. This rule of interpretation
has been applied in several decisions.‖
(underlining supplied)
110. As in the present, it may happen that two or more enactments which
appear to be operating in the same field overlap in some areas, each contain
non obstante clauses stating that its provisions will have effect
‗notwithstanding anything inconsistent therewith contained in any other law
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 83
for the time being in force'. Difficulty arises if there is an overlap. The
principles laid down to resolve such conflict are well settled and bind the
present consideration.
111. This court is, therefore, concerned with two statutes, both replete with
non-obstante clauses. In such a situation, the question which would require to
be answered first and foremost is as to whether there is any overlap and
repugnancy between the two enactments and if so, which will prevail.
112. Certain well established principles help resolve the quandary before us.
Even if the general Act contains a non obstante clause, a general statute's
operation may be curtailed by a later special Act. (Ref:Damji Valji Shah vs.
Life Insurance Corpn. of India AIR 1966 SC 135 : (1965) 3 SCR 665).
113. The curtailment of a general Act will be more readily inferred when the
later a Special Act also contains an overriding non obstante provision (Ref:
Allahabad Bank vs. Canara Bank (2000) 4 SCC 406 : AIR 2000 SC 1535).
114. What happens when both the concerned enactments are special? A
conflict between two special enactments both of which have notwithstanding
clauses, can also be resolved by examining which is ‗more special than the
other', in addition to the consideration that the conflict arose because of a
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 84
provision added later in the statute which is more special (Ref: Bank of India
vs. Ketan Parekh (2008) 8 SCC 148 : AIR 2008 SC 2361).
115. If the statutes contain wide notwithstanding clauses covering ‗any
other law for the time being in force' and operate in different fields,
harmonious construction has to be applied and when in a given case, the
application of the earlier Act is attracted, the question of its giving way to the
later act would not arise . (Ref: (2006) 8 SCC 677 : AIR 2006 SC 3252, Jay
Engineering Works Ltd v. Industry Facilitation Council).
116. So far as a 'non-obstante' clause in the statutory provision is concerned,
Mr. Ohri, learned APP has placed reliance on the pronouncement reported at
(2008) 9 SCC 763 KSL Industries Ltd. Vs Arihant Threads Ltd. in this
behalf. It is noteworthy that in this case there was a difference of opinion
between the two learned judges on the question that if the non obstante clause
in a later enactment is subject to and supplemental to an earlier enactment also
containing a non obstante clause, the earlier enactment may be interpreted to
prevail over the later enactment. In this case, following exercise was directed
to be undertaken:-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 85
―70. I am thus at a point where two statutes employ
non-obstante clause having "overriding effect‖. Such a
conflict, as laid down in several cases, may be resolved by
judiciary on various considerations: such as the policy
underlying the enactments, the language used, the object
intended to be achieved, or mischief sought to be remedied,
etc. One of the tests applied by courts is that normally a
later enactment should prevail over the former. The courts
would also try to reconcile both Acts by adopting
harmonious interpretation and applying them in their
respective fields so that both may operate without coming
into conflict with each other. In resolving the clash, the
court may further examine whether one of the two
enactments is "special" and the other one is "general".
There can also be a situation in law where one and the
same statute may be held to be a "special" statute vis-a-vis
one legislation and "general" statute vis-a-vis another
legislation. On the basis of one or more tests, the court will
try to salvage the situation by giving effect to non-obstante
clause in both the legislations.‖
(underlining by me)
117. Mr. Manoj Ohri, learned APP has drawn my attention to the
pronouncement of the Supreme Court in (1993) 2 SCC 144 Maharashtra
Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra
Ltd. & Anr. wherein the court was called upon to consider the provisions of
SICA and the State Financial Corporation Act, 1951. Both the statutes
contained competing non-obstante clauses. The conflict was resolved by the
court observing thus:-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 86
―9. ...The 1985 Act being a subsequent enactment, the non
obstante clause therein would ordinarily prevail over the
non obstante clause found in Section 46-B of the 1951 Act
unless it is found that the 1985 Act is a general statute and
the 1951 Act is a special one. In that event the maxim
generalia specialibus non derogant would apply. But in the
present case on a consideration of the relevant provisions of
the two statutes we have come to the conclusion that the
1951 Act deals with pre-sickness situation whereas the
1985 Act deals with the post-sickness situation. It is,
therefore, not possible to agree that the 1951 Act is a
special statute vis-a-vis the 1985 Act which is a general
statute. Both are special statutes dealing with different
situations notwithstanding a slight overlap here and there,
for example, both of them provide for grant of financial
assistance though in different situations. We must,
therefore, hold that in cases of sick industrial undertakings
the provisions contained in the 1985 Act would ordinarily
prevail and govern.‖
118. The court had occasion to examine this very issue also in the context of
the Companies Act, 1956 vis-a-vis the Recovery of Debts Due to Banks &
Financial Institutions Act (RDB Act for brevity) in the pronouncement
reported at (2000) 4 SCC 406 (427) Allahabad Bank vs. Canara Bank &
Anr. Both the statutes had non-obstante clause. The Court held as follows:-
―39. There can be a situation in law where the same
statute is treated as a special statute vis-à-vis one legislation
and again as a general statute vis-à-vis yet another
legislation. Such situations do arise as held in LIC of India v.
D.J. Bahadur. It was there observed:
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 87
―.... For certain cases, an Act may be general and for
certain other purposes, it may be special and the court
cannot blur a distinction when dealing with the finer
points of law.‖
For example, a Rent Control Act may be a special statue as
compared to the Code of Civil Procedure. But vis-à-vis an
Act permitting eviction from public premises or some special
class of buildings, the Rent Control Act may be a general
statute. In fact in Damji Valji Shah v. LIC of India (already
referred to), this Court has observed that vis-à-vis the LIC
Act, 1956, the Companies Act, 1956, the Companies Act,
1956 can be treated as a general statue. This is clear from
para 19 of that judgment. It was observed:
―Further, the provisions of the special Act, i.e., the LIC
Act, will override the provisions of the general Act, vis.,
the Companies Act which is an Act relating to companies
in general.‖
Thus, some high courts rightly treated the Companies Act as a
general statute and the RDB Act as a special statute
overriding the general statute.
40. Alternatively, the Companies Act, 1956 and the RDB Act
can both be treated as special laws, and the principle that when
there are two special laws, the latter will normally prevail over
the former if there is a provision in the latter special Act giving
it overriding effect, can also be applied. Such a provision is
there in the RDB Act, namely, Section 34. A similar situation
arose in Maharashtra Tubes Ltd. v. State Industrial and
Investment Corporation of India : [1993] 1 SCR 340 where
there was inconsistency between two special laws, the Finance
Corporation Act, 1951 and the Sick Industries Companies
(Special Provisions) Act, 1985. The latter contained Section 32
which gave overriding effect to its provisions and was held to
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 88
prevail over the former. It was pointed out by Ahmadi, J. that
both special statutes contained non-obstante clauses but that
the "1985 Act being a subsequent enactment, the non-obstante
clause therein would ordinarily prevail over the non-obstante
clause in Section 46-B of the 1951 Act unless it is found that
the 1985 Act is a general statute and the 1951 statute is a
special one". Therefore, in view of Section 34 of the RDB Act,
the said Act overrides the Companies Act, to the extent there is
anything inconsistent between the Acts.‖
(Emphasis supplied)
119. The principle therefore would be that the court must look into the
objectives of the two special acts. In case both the enactments have
competing non-obstante provision, then the non-obstante clauses of the
subsequent statute would prevail the non-obstante clauses found in the earlier
enactment unless it is found that the subsequent act is a general one of the
earlier enactment is a general statue.
120. The Supreme Court had occasion to deal with the issue of repugnancy
also between two enactments on several occasions. Binding principles of law
on this aspect stand laid down in AIR 1979 SC 893 : (1979) 3 SCC 431 M.
Karunanidhi vs. UOI to guide issues of repugnancy between the two
enactments which read as follows :-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 89
―(i) It must be shown that the two enactments contain
inconsistent and irreconcilable provisions, so that they
cannot stand together or operate in the same field.
(ii) There can be no repeal by implication unless the
inconsistency appears on the face of the two statutes.
(iii) Where the two statutes occupy a particular field, but
there is room or possibility of both the statutes operating in
the same field without coming into collision with each other.
(iv) Where there is no inconsistency but a statute occupying
the same field seeks to create distinct and separate offences,
no question of repugnancy arises and both the statutes
continue to operate in the same field.‖
JJ Act vis-a-vis other statutes
121. Valuable light on the issue raised is also thrown by the manner in which
courts have examined the provisions of the JJ Act in the context of some other
statutes. Several judicial precedents are to be found of juveniles implicated
for specific offences under other statutes and pleas of juvenility on the date of
the offence were set up. The directions by the court on the manner they
deserve to be treated can be usefully considered as also the jurisprudence
which has evolved in this regard. Some of the cases on this aspect are
considered hereafter:
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 90
(i). In the case reported at AIR 1996 SC 905 : (1996) 1 SCC 665 Abdul
Mannan vs. State of West Bengal, the Supreme Court was concerned with
commission of an offence punishable under Section 302 of the IPC by
appellants who were under the ages of 17 and 18 years. The procedure
prescribed under the West Bengal Children Act, 1958 and the Juvenile Justice
Act, 1986, which came into force during the pendency of the trial, was held to
be mandatory.
(ii). In (2000) 6 SCC 759 Raj Singh vs State of Haryana, the appellant was
less than 16 years of age. He was therefore a juvenile within the meaning of
the expression under the JJ Act on the date of the alleged committal of
offence under section 20 of the Narcotic Drugs & Psychotropic Substances
Act, 1985 (‗NDPS Act' for brevity). The court held that for the reason that he
was a juvenile at the time of the occurrence, his trial could have only been
held under the provisions of the Juvenile Justice Act, 1986 and that his trial
having been conducted by the sessions court was bad in law, and
consequently, his conviction stood vitiated.
(iii). In Ex.Grn. Ajit Singh vs. UOI (110) 2004 DLT 326, this court had
occasion to examine the provisions of the JJ Act vis-a-vis the provisions of
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 91
the Army Act. The petitioner had contended that he was a juvenile on the
date of the alleged offence and consequently could not have been tried by a
court martial constituted in accordance with the provisions of the Army Act.
A Division Bench of this court held that from the plain reading of the
statutory provisions, there was little room for doubt that the JJ Act is
applicable inspite of any other law in force which would include the Army
Act, 1950 and that no exclusion of the Army Act from the operation of the JJ
Act could be read into the statutory provisions. The Division Bench had
observed that the JJ Act provided the complete method and manner of
custody, bail, enquiry and orders which could have been passed by the
Juvenile Justice Board alone.
(iv). It is noteworthy that in Ajit Singh (supra), the court had placed reliance
on a Division Bench decision of the Kerala High Court reported at 1995 CrLJ
330 In Re: Sessions Judge which dealt with the provisions of the Juvenile
Justice Act, 1986 vis-a-vis a later Act being the Scheduled Castes and
Scheduled Tribes (Provision of Atrocities) Act, 1989 (SC&ST Act, 1989).
The Division Bench of Kerala High Court in para 9 of the judgment held
that:-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 92
"The 1989 Act was enacted to check and deter crimes against the
members of the Scheduled Caste and Scheduled Tribe communities
committed by non-Scheduled Castes and non-Scheduled Tribes.
The provisions of the 1989 Act aim at giving protection to the
members of the Scheduled Caste and Scheduled Tribe communities
against whom atrocities are being committed. A reading of the
provisions of 1989 Act will show that the Act was concerned with
the victims of the crimes. It is not concerned with the offenders who
perpetrate crimes against the members of the Scheduled Castes and
Scheduled Tribes. In order to protect the victims, Section 20 was
enacted, giving an overriding provision vis-a-vis the provisions
contained in all the existing enactments. That overriding power,
according to us, cannot be extended to nullify the provisions
contained in the 1986 Act, which deals with juveniles who are
offenders. The 1989 Act is not concerned with the offenders. So it
cannot have any impact on 1986 Act which is concerned with
juvenile offenders. The 1986 Act is a special enactment which deals
with juvenile offenders. The provisions of that Act cannot be
nullified by the 1989 Act which deals with an entirely different
field. In this view we hold that the 1989 Act cannot override the
provisions of the 1986 Act which specifically deal with juvenile
offenders."
(emphasis supplied)
(v). The pronouncement of the Rajasthan High Court reported at 2007 CrLJ
3047 Tara Chand vs. State of Rajasthan is to the same effect wherein the
court held that the exclusion of anticipatory bail under the Scheduled Castes
& Scheduled Tribes (Prevention of Atrocities) Act of 1989 does not apply to
juveniles who have to be mandatorily dealt with according to the provisions
of section 12 of the Juvenile Justice Act of 2000. It was held that the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 93
subsequent central legislation of the year 2000 would have an overriding
effect over the provisions of the earlier Act of 1986.
(vi). Mr. Manoj Ohri, learned APP for the state, has referred to the
pronouncement of the Division Bench of the Karnataka High Court reported
at 2005 Crl.L.J. 2357 State by Basavapatna Police Station vs. Harshad
wherein an issue of jurisdiction of the fast track court to conduct a trial in
respect of a charge sheet for offences under section 143, 147, 148, 302 read
with 149 of the IPC was laid against the respondent who was a juvenile
alongwith others who were also implicated in the same case. On a
consideration of the statutory provisions, the Division Bench observed as
follows :-
―15. xxx we answer the questions referred as follows:-
xxx xxx xxx
(2) Whether Section 27 Cr.P.C.r/w pronouncement of the
Division Bench of this Court in the case of Krishna v. State of
Karnataka reported in ILR 2000 Kar 2542 has overriding
effect over Section 6 of the Juvenile Justice (Care and
Protection of Children) Act, 2000 or vice versa?
OR
Which Court/Board has to deal with juvenile in respect of
offences punishable with death or imprisonment for life?
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 94
Ans. It is held that Section 27 of the Cr.P.C. has no
inconsistency with Section 6 of the Juvenile Justice (Care and
Protection) of Children Act, 2000. However the words
―notwithstanding anything contained in any other law for the
time being in force‖. used in Section 6(1) of the Juvenile
Justice (Care and Protection of Children) Act, 2000 has
overridden the provisions of section 26(a) of the Cr.P.C. In
view of specific provision in Section 6(1) of the Juvenile
Justice Care and Protection of Children) Act and
pronouncement of the Supreme Court in Sheela Barse v. UOI,
AIR 1986 SC 1773 : (1986 CriLJ 1736) and Raghbir v. State
of Haryana, AIR 1981 SC 2037 : (1981 CriLJ 1497), the
decision of Karnataka High Court in Krishna's case is no
more good law.‖
(emphasis supplied)
(vii). In the case reported at (134) 2006 DLT 507 : Mohd. Irshad @ Shivraj
vs. State, an order directing the juvenile petitioner to undergo trial before the
Special Judge under the NDPS Act was held to be not sustainable and it was
held that a juvenile can be tried only in terms of the Juvenile Justice Act,
2000. The court placed reliance on the non-obstante clauses in the various
provisions of the Juvenile Justice Act and also noticed that section 6 and
section 36A of the JJ Act contained non-obstante clauses which made it clear
that the provisions of section 6 of the statute will override any other law in
force. The court also noted that the Juvenile Justice Act was enacted in the
year 2000, whereas the NDPS Act was an enactment of 1985. Both laws were
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 95
special laws. In para 5 of the judgment, it was held that the later law would
prevail over the NDPS Act. It was pointed out that the Juvenile Justice Act
was a beneficial legislation and its provisions were clear and mandatory.
122. In an exhaustive pronouncement of the High Court of Madras reported
at MANU/TN//0347/2003 Prabhakar vs State of Tamilnadu, the same
question was raised in context of the Prevention of Terrorism (POTA) Act,
2000 vis-a-vis the JJ Act, 2000, considering the history of the legislation,
judicial pronouncements as well as rules of interpretation, it was held as
follows :-
―29. Both Acts, viz., JJ (C&PC) Act and the POTA are
special Acts passed by the Parliament. Both contain a
surfeit of non obstante clauses having overriding effect.
But then juveniles have been given a special place in the
scheme of things. Our country, as already noted, has been
a party to various international conventions and
agreements and invoking Article 253 of the Constitution
enacted various Acts with children as the prime theme and
ensured that all their needs are met and their basic human
rights are protected. We have created greater
responsibilities in ourselves when it comes to juveniles in
conflict with law. The various sections in JJ (C&PC) Act
already referred to vouch for the same. As pointed out in
MUNNA v.. STATE OF UP MANU/SC/0035/1982 :
"The law is very much concerned to see that juveniles do
not come into contact with hardened criminals and their
chances of reformation are not blighted by contact with
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 96
criminal offenders. The law throws a cloak of protection
round juveniles and seeks to isolate them from criminal
offenders, because the emphasis placed by the law is not
on incarceration but on reformation. How anxious is the
law to protect young children from contamination with
hardened criminals is also apparent from Section 27 of the
Act which provides, subject only to a few limited and
exceptional cases referred to in the proviso, that
notwithstanding anything contained to the contrary, no
court can sentence a child to death or transportation or
imprisonment for any term or commit him to prison in
default of payment of fine. It would thus be seen that even
where a child is convicted of an offence, he is not to be
sent to a prison but he may be committed to an approved
school under Section 29 or either discharged or committed
to suitable custody under Section 30. Even where a child is
found to have committed an offence of so serious a nature
that the court is of opinion that no punishment which under
the provisions of the Act it is authorised to inflict is
sufficient, Section 32 provides that the offender shall not
be sent to jail but shall be kept in safe custody in such
place or manner as it thinks fit and shall report the case for
the orders of the State government. Section 33 sets out
various methods of dealing with children charged with
offences. But in no case except the exceptional ones
mentioned in the act, a child can be sent to jail."
The above enunciation was made by the Supreme Court
with reference to U.P. Children Act, 1951, and at a time
when even Central Act JJ act, 1986 had not been enacted.
It will apply with greater force in the present context. JJ
(C&PC) Act no doubt reached the statute book two years
earlier to the POTA. It is possible to argue that at the time
POTA was passed Parliament was aware of the presence of
JJ (C&PC) Act as law, that still it chose to introduce Sec.
56 conferring overriding powers under POTA and that
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 97
therefore POTA should prevail. As pointed out in the LIC
case as between ID Act and LIC Act, so far as
nationalisation and insurance business are concerned the
latter Act is a special legislation but when it comes to
particular problem of disputes between employer and
employees, or investigation and adjudication of such
disputes it makes way to ID Act. By the same logic, JJ
(C&PC) Act dealing as it does with 'Alpha to Omega' of
the problems facing juveniles and juveniles in conflict with
law providing as it does for specialised approach towards
the prevention and treatment of juvenile delinquency in its
full range is a special law and will prevail over POTA
which is a mere special law compared to JJ (C&PC) Act.
JJ (C&PC) Act is the monarch of all that it surveys, in its
field. Both are special but JJ (C&PC) Act is more special
(apologies to George Orwell).
30. 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
[MANU/BH/0043/1989 : (though under the earlier Act),
the appropriate provision in the Act is quite conscious of
such situations. Section 7 of JJ (C&PC) Act enjoins the
Magistrate, who is not empowered under the Act to
exercise the powers of the Board and before whom the
juvenile or child is brought, to forward the child to the
competent authority. Section 12 provides that if the release
of the juvenile on bail is likely to bring him into
association with any known criminal or expose him to
moral, physical or psychological danger or his release
would, defeat the ends of justice. 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
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 98
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. The legislature had
intended that the juvenile should be extended special care,
treatment, development and rehabilitation.
The Act overwhelmingly contemplates total separation of
juveniles from the mainstream offenders. Under no
circumstance should the juvenile have anything to do with
them.‖
(underlining supplied)
123. The above narration also supports only conclusion that the JJ Act has
been enacted by the legislature giving primacy to the welfare of children and
has to be given primacy in matters relating to them irrespective of the
concerns of other legislations.
124. It is noteworthy that so far as Section 17 of the IT Act, 1956 is
concerned, the same is applicable to a consideration on the matter of
intermediate custody of persons removed under Section 15 or rescued under
Section 16 alone. Interestingly, no similar provisions have been made with
regard to persons who would be covered under Section 7 of the IT Act of
1956.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 99
125. Section 17A of the IT Act was incorporated into the statute by way of
an amendment by Act 44 of 1986 w.e.f. 26 th January, 1987. So far as the
provisions of Section 17A are concerned, it is also confined to conditions
which are required to be observed before placing a person rescued under
Section 16 with parents or guardians. The magistrate is required to satisfy
himself about the capacity or genuineness of the parents, guardians or
husband to keep such person by causing an investigation to be made by
recognised welfare institution or organisation.
126. The legislature in its wisdom did not consider the existing provisions of
the IT Act, 1956 as sufficient provisions looking to the benefit of the children,
having regard to the enquiry postulated under and the scheme of the Juvenile
Justice Act of 1986 which was passed on the 1st of December, 1986.
127. So far as juveniles in conflict with law or children in need of care and
protection are concerned, they cannot under any circumstances, be equated
with or treated in the manner in which adult persons are treated. This
statutory scheme is provided under sub-section (4) of section 1 of the Juvenile
Act, 2000 which states as follows :-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 100
―Section 1(4)- Notwithstanding anything contained in
any other law for the time being in force, the provisions
of this Act shall apply to all cases involving detention,
prosecution, penalty or sentence of imprisonment of
juveniles in conflict with law under such other law.
128. So far as the children rescued from brothels are concerned, special
statutory provisions have been made under the JJ Act of 2000. There is
therefore, substance in the submissions of Mr. Madhukar, learned counsel for
the petitioner that the intent of the statute, to protect the human rights of the
child is to be given primacy, and its provisions have to be strictly followed.
129. Such reading of the two statutes would prevent conflict in the statutory
provisions as well as absurdity. Certainly the legal dynamics of social justice
as well as the clear legislative intendment guides this court in holding that so
far as a matter involving a juvenile in conflict with law or/and children in
need of care and protection are concerned, the statutory intent is clear and has
to be given full effect. The words of the statute given their plain and literal
meaning, leave no manner of doubt that so far as a child is concerned, the JJ
Act of 2000 has primacy. No court or authority has any option in the matter
and the provisions of the Juvenile Justice Act, 2000 have to be strictly
applied.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 101
130. The rights of the juvenile and children having been placed on such a
high pedestal by the legislature, and so it has to be held that the procedure
prescribed under the Juvenile Justice Act, 2000 governs all cases concerning
juveniles in conflict with law irrespective of the offence they are alleged to
have committed as well as all children covered under the definition of
children in need of care and protection. Every aspect of the matter including
detention, prosecution, sentencing, rehabilitation, restoration of a person who
has not completed eighteen years of age under Section 18 has to be dealt with
in accordance with provisions of the Juvenile Justice Act.
131. The two legislations under construction address specific concerns and
areas, the JJ Act being restricted in its application to a specific class of
persons. In case the IT Act of 1956 is allowed to prevail, it will lead to such
construction as was not so intended by the legislature. Both the special
enactments are required to be allowed to operate in entirety just as any other
self contained code. The construction of the legislations has to be
harmonious/in tune so as to ensure that the special features and purpose of
both the enactments can remain intact and in the best interest of children as
well as for the benefit of the society. If an enactment meant to apply to all
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 102
age groups is allowed to override the special enactment meant for children, it
will ultimately result and reduce such statute (i.e. the special enactment for
children) to a state of futility.
132. Going by the above principles, the JJ Act deals specifically with person
below 18 years of age whereas the IT Act deals with persons of all ages; also
the JJ Act being a subsequent or later enactment and the IT Act being an
earlier enactment and both containing non-obstante clauses, the non-obstante
clause in the JJ Act would ordinarily prevail over the non-obstante clause in
the IT Act.
133. Thus, in the context of persons covered under the definition of ‗child'
under the JJ Act, it is the special enactment vis-a-vis the IT Act.)
134. The matter, however, does not end here. There is another important
issue which requires to be addressed. We are confronted with a situation
where a person under eighteen years of age has been recovered by the police
in action taken under Section 15 and Section 16 of the IT Act of 1956. The
question which has been raised is whether such person is guilty of
commission of offences under provisions of the IT Act and therefore to be
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 103
dealt with as a juvenile in conflict with law under the JJ Act or such person is
to be treat as a child in need of care and protection.
Is a child recovered by the police in a raid under Sections 15/16 of the IT
Act to be treated as an offender under IT Act and therefore as a juvenile
under JJ Act or whether such child is to be treated as a child in need of care
and protection thereunder
135. It is clear from the above discussion, that both the enactments benefit
the society largely. While the IT Act, 1956, addresses primarily a social
cause, the JJ Act, 2000 has also been enacted in social cause to further the
best interest of children - the future of this nation.
136. As noticed hereinabove, the IT Act, 1956 as well as the JJ Act are
special Acts with regard to the specific object which they are addressing.
Difficulty has arisen as to the manner in which a person, who is covered
within the definition of juvenile or child under the provisions of the JJ Act,
2000, is found involved in any manner in any case which attracts applicability
of the IT Act, 1956, is to be treated.
137. The JJ Act 2000 is a later enactment. In its wisdom, the parliament has
defined ―juvenile or child‖ under Section 2(k) to include every person who
has not completed 18 years of age.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 104
From the statutory scheme, it is apparent that a distinction is drawn
under the JJ Act, 2000 only between a child who is in conflict with law, who
is described as a juvenile, and a child in need of care and protection. No
exception to the applicability of the Act has been provided to such persons.
None can be read into the statute.
138. The IT Act of 1956 however defines a ‗child' under section 2(aa) as a
person who has not completed the age of 16 years and defines a minor under
section 2(c)(b) as a person who has completed the age of 16 years but has not
completed the age of 18 years.
139. Under sub-section (l), ‗juvenile in conflict with law' has been defined as
a child who is alleged to have committed an offence and has not completed
the eighteenth year of age as on the date of commission of such an offence.
Sub-section (d) of Section 2 of the JJ Act, 2000 defines 'child in need
of care and protection'. In clause (vi) and (vii) thereof, the legislature has
included a child who is being or is likely to be grossly abused, tortured or
exploited for the purpose of sexual abuse or illegal acts. The legislature has
clearly covered a child being sexually exploited for sexual abuse and
trafficking (as is envisaged under the IT Act, 1956 as well) within the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 105
definition of a child in need of care and protection under Section 2(d) of the JJ
Act, 2000.
Therefore under the JJ Act, a person under eighteen years of age who is
found involved in prostitution is a child who has been sexually exploited as
they are not old enough and thus not capable to make an informed choice.
Such person thus is classified as a child in need of care and protection and
need to be covered and protected under the provisions of the JJ Act.
140. An examination of the scheme of the IT Act is necessary to answer the
aspect under consideration. The expression 'prostitution' is defined under
sub-section (f) of Section 2 of the IT Act, 1956 as 'sexual exploitation or
abuse of persons for commercial purposes'. It is further statutorily prescribed
that the expression 'prostitute' shall be construed accordingly. The IT Act,
1956 does not prescribe any specific exceptions to its application.
141. The IT Act of 1956 is primarily penal and the punishment which has
been prescripted is intended to act as a deterrent. It strictly punishes only
those who are over eighteen years of age. This legislation also does not permit
penalizing a person even if found indulging in the penal acts, if such person is
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 106
less than eighteen years of age, recognizing that such person cannot be held
culpable for the acts involved.
142. It is noteworthy, that a juvenile who is in conflict with law may at the
same time be a child in need of care and protection. The definition of a
'juvenile' under the Act of 2000 does not exclude such person from being a
child in need of care and protection.
143. On the 19th of June, 2012, the legislature enacted the Protection of
Children from Sexual Offences Act, 2012 (POCSO, Act hereafter) for the
reason that sexual offence against children were not being adequately
addressed by the existing laws. The enactment was pursuant to the mandate
of Article 15 of the Constitution of India and in discharge of the responsibility
of the Government of India under the International Treaties. This statute is a
self-contained comprehensive legislation to provide for protection of children
from offences of sexual assault, sexual harassment and pornography. The
above intent and spirit of the legislation is supported by the recent enactment
as well in this regard. The provisions of the statute shed valuable light on the
issue under consideration and are extracted hereafter. A child is defined under
Section 2(d) thus:-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 107
―2(d). ―Child‖ means any person below the age of eighteen years.‖
144. The statute proposes to protect children from the offence of sexual
assault, sexual harassment and pornography. It separately defines the
penetrative sexual assault in Section 3 in the following terms:-
―3. Penetrative sexual assault:- A person is said to commit
―penetrative sexual assault‖ if -
(a) he penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus, of a child or makes the child to do so with him or
any other person; or
(b) he inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of the child or
makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause
penetration into the vagina, urethra, anus or any part of body of the
child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the
child or makes the child to do so to such person or any other
person.‖
145. Under Section 4 of the statute, minimum sentence of imprisonment of
seven years which may extend to imprisonment for life has been prescribed
for this offence.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 108
The legislature has prescribed the offence aggravated penetrative sexual
assault on the child under Section 5.
146. For the purpose of the present case, we may also refer to the offence of
sexual assault which has been defined under Section 7 of the statue in the
following terms:-
―7. Sexual Assault - Whoever, with sexual intent touches the
vagina, penis, anus or breast of the child of makes the child touches
the vagina, penis, anus or breast of such person or any other person,
or does any other act with sexual intent which involves physical
contact without penetration is said to commit sexual assault.‖
Aggravated sexual assault is defined under Section 9 of the statute.
147. By virtue of Section 11, the legislature has rendered penal sexual
harassment of a child which provision reads as follows:-
―11. Sexual harassment - A person is said to commit sexual
harassment upon a child when such person with sexual intent.-
(i) utters any word or makes any sound, or makes any gesture or
exhibits any object or part of body with the intention that such word
or sound shall be heard, or such gesture or object or part of body
shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it
is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for
pornographic purposes; or
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 109
(iv) repeatedly or constantly follows or watches or contacts a child
either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated
depiction through electronic, film or digital or any other mode, of
any part of the body of the child or the involvement of the child in a
sexual act; or
(vi) entices a child for pornographic purposes or gives gratification
therefor.‖
148. Varying imprisonment sentences have been prescribed for these
offences as well.
149. Some light on the issue is also thrown on the issue from an examination
of the Indian Penal Code which renders certain acts as not only illegal, but
punishable in the terms prescribed thereunder. So far as the present
consideration is concerned, the offences prescripted under the heading 'Sexual
Offences', as well as certain acts rendered penal for the reason that they relate
to kidnapping, abduction, slavery and forced labour, have a bearing and
deserve to be considered in extenso. The relevant provisions of the penal code
(as on 29th July, 2009, the date when the two children were rescued in the
present case) in this behalf are set out hereafter :-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 110
―366A. Procuration of minor girl - Whoever, by any
means whatsoever, induces any minor girl under the age of
eighteen years to go from any place or to do any act with
intent that such girl may be, or knowing that it is likely that
she will be, forced or seduced to illicit intercourse with
another person shall be punishable with imprisonment which
may extend to ten years, and shall also be liable to fine.
xxx xxx xxx
372. Selling minor for purposes of prostitution, etc.-
Whoever sells, lets to hire, or otherwise disposes of any
person under the age of eighteen years with intent that such
person shall at any age be employed or used for the purpose of
prostitution or illicit intercourse with any person or for any
unlawful and immoral purpose, or knowing it to be likely that
such person will at any age be employed or used for any such
purpose, shall be punished with imprisonment of either
description for a term which may extend to ten years, and
shall be liable to fine.
[Explanation I.- When a female under the age of eighteen
years is sold, let for hire, or otherwise disposed of to a
prostitute or to any person who keeps or manages a brothel,
the person so disposing of such female shall,until the contrary
is proved, be presumed to have disposed of her with the
intent that she shall be used for the purpose of prostitution.
Explanation II.- For the purposes of this section ―illicit
intercourse‖ means sexual intercourse between persons not
united by marriage or by any union or tie which, though not
amounting to a marriage, is recognised by the personal law or
custom of the community to which they belong or, where they
belong to different communities, of both such communities, as
constituting between them a quasi-marital relation.]
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 111
373. Buying minor for purposes of prostitution, etc.
Whoever buys, hires or otherwise obtains possession of any
person under the age of eighteen years with intent that such
person shall at any age be employed or used for the purpose of
prostitution or illicit intercourse with any person or for any
unlawful and immoral purpose, or knowing it to be likely that
such person will at any age be] employed or used for any such
purpose, shall be punished with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine.
[Explanation I.-Any prostitute or any person keeping or
managing a brothel, who buys, hires or otherwise obtains
possession of a female under the age of eighteen years shall,
until the contrary is proved, be presumed to have obtained
possession of such female with the intent that she shall be
used for the purpose of prostitution.
Explanation II.-"Illicit intercourse" has the same meaning as
in section 372.]
374. Unlawful compulsory labour-Whoever unlawfully
compels any person to labour against the will of that person,
shall be punished with imprisonment of either description for
a term which may extend to one year, or with fine, or with
both.
150. The legislature has viewed with extreme seriousness the magnitude of
the problems while effecting the Criminal Law Amendment Act, 2013.
Section 370 which dealt with buying or disposing of any person as a slave
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 112
was substituted by the Amendment Act of 2013 and the relevant extract of the
amended Section reads thus:-
―370. Trafficking of person.-(1) Whoever, for the purpose of
exploitation, (a) recruits, (b) transports, (c) harbours, (d)
transfers, or (e) receives, a person or persons, by--
First.-- using threats, or
Secondly.-- using force, or any other form of coercion, or
Thirdly.-- by abduction, or
Fourthly.-- by practising fraud, or deception, or
Fifthly.-- by abuse of power, or
Sixthly.-- by inducement, including the giving or receiving of
payments or benefits, in order to achieve the consent of any
person having control over the person recruited, transported,
harboured, transferred or received, commits the offence of
trafficking.
Explanation 1.-- The expression "exploitation" shall include any
act of physical exploitation or any form of sexual exploitation,
slavery or practices similar to slavery, servitude, or the forced
removal of organs
Explanation 2.-- The consent of the victim is immaterial in
determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished
with rigorous imprisonment for a term which shall not be less than
seven years, but which may extend to ten years, and shall also be
liable to fine.
(3) Where the offence involves the trafficking of more than one
person, it shall be punishable with rigorous imprisonment for a
term which shall not be less than ten years but which may extend
to imprisonment for life, and shall also be liable to fine.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 113
(4) Where the offence involves the trafficking of a minor, it
shall be punishable with rigorous imprisonment for a term
which shall not be less than ten years, but which may extend to
imprisonment for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one
minor, it shall be punishable with rigorous imprisonment for a
term which shall not be less than fourteen years, but which
may extend to imprisonment for life, and shall also be liable to
fine.
(6) If a person is convicted of the offence of trafficking of minor
on more than one occasion, then such person shall be punished
with imprisonment for life, which shall mean imprisonment for
the remainder of that person's natural life, and shall also be liable
to fine.
(7) When a public servant or a police officer is involved in the
trafficking of any person then, such public servant or police
officer shall be punished with imprisonment for life, which shall
mean imprisonment for the remainder of that person's natural life,
and shall also be liable to fine.
151. Trafficking of a person is a penal offence under Section 370. Under
explanation 2 to Sub-Section 1, the consent of the victim is immaterial in
determination of the offence of trafficking.
The offence of trafficking of a minor is punishable even more
stringently under Section 370(4). Mandatory sentence of rigorous
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 114
imprisonment for a term of not less than ten years but which may extend to
imprisonment for life with fine has been prescribed.
152. The seriousness with which the legislature has treated the offence in
respect of minor is also manifested from the punishment prescribed for
trafficking of more than one minor under Sub-Section 5 of Section 370. Such
an offence is punishable with imprisonment for a term which shall not be less
than fourteen years but which may extend to imprisonment for life as well as
fine. The repeat offender of the offence of trafficking of a minor is
punishable with imprisonment for life which means imprisonment for the
remainder of that person's natural life and shall also be liable to fine.
Exploitation of trafficking child is punishable under Section 370(a) with a
minimum sentence of not less than five years rigorous imprisonment which
may extend to seven years as well as fine.
153. Valuable light has been thrown on the issue under consideration from
the legislative intent when the definition of rape under Section 375 of the
Indian Penal Code after the amendment of 2013 is considered. The relevant
extract of Sections 375 and 376 read as follows:-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 115
―Section 375. Rape - A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or any
other person; or
(b) inserts, to any extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or anus of a woman or
makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or any other person;
or
(d) applies his mouth to the vagina, anus, urethra of a woman or
makes her to do so with him or any other person, under the
circumstances falling under any of the following seven
descriptions:--
xxx xxx xxx
Sixthly.--With or without her consent, when she is under
eighteen years of age.
Seventhly.--When she is unable to communicate consent.
xxx xxx xxx
Section 376. Punishment for rape - (1) Whoever, except in the cases
provided for in sub-section (2), commits rape, shall be punished with
rigorous imprisonment of either description for a term which shall
not be less than seven years, but which may extend to imprisonment
for life, and shall also be liable to fine.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 116
(2) Whoever,--
xxx xxx xxx
(i) commits rape on a woman when she is under sixteen years of
age;
Or
(j) commits rape, on a woman incapable of giving consent; or
xxx xxx xxx
shall be punished with rigorous imprisonment for a term which
shall not be less than ten years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life, and shall also be liable to
fine.‖
It is noteworthy that the substantive ingredients of the offence have
been redefined by the amendment of 2013. Consent of a person under 18
years of age is immaterial.
154. It would be pertinent to advert to Section 90 of the IPC as well in this
regard. The relevant extract thereof reads as follows:-
―90. Consent known to be given under fear or
misconception.--A consent is not such a consent as it intended by any
section of this Code, if the consent is given by a person under fear of
injury, or under a misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception; or xxx
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 117
Consent of child.--unless the contrary appears from the context, if the
consent is given by a person who is under twelve years of age.‖
Section 375 however renders consent of persons upto 18 years of age
inconsequential.
155. It is important to note that in some jurisdictions, the phrase 'statutory
rape' is a term used to describe sexual relations that occur when one
participant is below the age required to legally consent to the behavior.
Although it usually refers to adults engaging in sex with minors under the age
of consent, i.e., the age at which individuals are considered competent to give
consent to sexual conduct. This expression is a generic term, and very few
jurisdictions use the actual term "statutory rape" in the language of statutes.
Different jurisdictions use many different statutory terms for the crime, such
as "sexual assault," "rape of a child," "corruption of a minor," "carnal
knowledge of a minor," "unlawful carnal knowledge", or simply "carnal
knowledge." Statutory rape differs from forcible rape in that overt force or
threat need not be present. The laws presume coercion, because a child is
legally incapable of giving consent to the act.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 118
156. The above narration manifests the legislative recognition in India of the
fact that a child is incapable of giving lawful consent so far as the sexual acts
are concerned. The provisions of the POCSO Act as well as the Indian Penal
Code stridently reinforce this position, prescribing stringent punishment for
the involved adult offenders.
157. Different enactments have prescripted different ages so far as the
definition of a child is concerned. Section 11 of the Indian Contract Act
which defines persons who are competent to contract states that every person
is competent to contract who is of the age of majority according to the law to
which he is subject, and who is of sound mind and is not disqualified from
contracting by any law to which he is subject.
158. The Indian Majority Act, 1875 declares in Section 3 that every person
domiciled in India shall be deemed to have attained his majority when he
shall have completed the age of 18 years, and not before. The age of majority
being 18 years, a person less than that age even by a day would be a minor for
the purposes of contracting. (Ref: Bhim Mandal Magaram Corain, AIR
1961 Pat. 21).
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 119
A minor is not competent to contract and an agreement with a minor
has been held to be void. In respect of contracts thus it has been presumed
that a minor is not capable of making an informed choice and taking a
decision and thus the consent of a minor has no effect of binding him to any
contract.
159. Section 4 of the Hindu Minority and Guardianship Act, 1956 defines a
'minor' as a person who has not completed the age of eighteen years. It has
also been held that a minor is incompetent to act as guardian of property. The
courts have also emphasised that the welfare of the minor is to be of
paramount consideration. Thus, it has again been recognised that a child is
incapable of giving lawful consent and their interests need to be protected.
160. Section 2(a) of the Child Marriage Restraint Act, 1929 (Repealed)
defined a child as ―a person who, if a male, has not completed twenty-one
years of age, and if a female, has not completed eighteen years of age‖
A ―child marriage‖ was defined under section 2(b) as a marriage to
which either of the contracting parties is a child;
A ―contracting party‖ to a marriage is defined under Section 2(c) to
mean either of the parties whose marriage is [or is about to be] thereby,
solemnised. This statute also contained a definition of a ―minor‖ under
Section 2(d) means a person of either sex who is under eighteen years of age.‖
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 120
161. The Act provided a punishment under Section 3 and 4 for any person
contracting a child marriage. Section 3 prescribes punishment for a male
above eighteen years of age and below twenty-one who contracted a child
marriage. Section 4 prescribes punishment for a male above twenty-one years
of age who contracts a child marriage. Section 5 prescribes punishment for
solemnising a child marriage for whoever performs, conducts or directs any
child marriage, unless he proves that he had reason to believe that the
marriage was not a child marriage.
162. Where a minor contracts a child marriage, any person having charge of
the minor, whether as parent or guardian or in any other capacity, lawful or
unlawful, who does any act to promote the marriage or permits it to be
solemnised, or negligently fails to prevent it from being solemnised is
punishable under section 6. No woman was punishable under Section 6 with
imprisonment.
It is noteworthy that for the purposes of this section, it was presumed,
unless and until the contrary is proved, that where a minor has contracted a
child marriage, the person having charge of such minor has negligently failed
to prevent the marriage from being solemnised.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 121
It is pertinent to note that no punishment was prescribed for a minor
under the Child Marriage Restraint Act, 1929 as the law presumes that a
minor is incapable of giving lawful consent. The law presumed that the
consent of a child is irrelevant as they are not capable of legally consenting or
having an informed choice.
163. The Child Marriage Restraint Act was repealed in the year 2006 and
replaced by the Prohibition of Child Marriage Act, 2006 (‗the PCM Act'
herafter). While the new law maintains some parallels with the older law,
there are significant departures too in the new Act. The definition of 'child'
remains the same as under the previous statute.
164. Unlike the Act of 1929 where punishment was negligible for marrying
a minor, the PCM Act of 2006 provides for enhanced punishment for any
male over 18 years of age with rigorous imprisonment of up to 2 years or with
a fine up to 2 years or with a fine up 1 lakh rupees or both. Similar
punishment is prescribed for anyone who performs, conducts, directs or abets
or negligently failed to prevent any child marriage. The statutory scheme
manifests the legislative intent of not simply restraining child marriages but
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 122
prohibiting them and is statutory recognition of social and adult responsibility
for the same. It places not a shadow of responsibility on the child.
138. Section 2(ii) of the Child Labour (Prohibition and Regulation) Act,
1986 defines a child as a person who has not completed his fourteenth year of
age. Section 3 thereof lays down that no child shall be permitted to work or
be employed in any occupation as set forth in Part A of the Schedule or in any
workshop wherein any of the processes set forth in Part B of the Schedule is
carried on.
Section 14 prescribes the penalties for offences under the Act thus:-
―for whoever employs any child or permits any child to work in
contravention of the statutory provisions or does not simply with the statutory
provision.‖
Thus, under the Child Labour (Prohibition & Regulation) Act, 1986 as
well, the child who has been employed or engaged in work in contravention
of section 3 is not punishable. However, the employer or any person who
permits the child to work as such is liable to punishment. Once again we see
that the legislature presumes that the child cannot be held guilty as he is
presumed to be incapable of giving a lawful consent.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 123
165. The examination of the several legislations noticed above shows that a
person who is below eighteen years of age is considered incapable of making
an informed choice which could bind him even in a matter of contract.
166. So far as the Indian Penal Code is concerned, under Section 366A
(minor girl under the age of 18 years), Section 372 and 373 (person under the
age of 18 years), Section 375 (women under 16 years of age) abduction and
sexual exploitation of different persons have been made penal offences
inviting special stringent penalties.
167. Child prostitution is used to describe the wide concept of commercial
sexual exploitation of children. It may be noted that this is only one of the
manifestations of the exploitation of the child which as the above narration
shows may include several other acts including child marriage, domestic child
labour, trafficking etc.
168. The scheme of the penal laws noticed heretofore, would show that
sexual activity with a child has not only been unequivocally declared as their
sexual exploitation and abuse, but is covered under the distinct and the serious
penal offence of rape.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 124
169. An issue similar to that before us arose for consideration before the
Bombay High Court in the judgment reported at 2002 AllMR (Crl.) 2400
entitled Prerna vs State of Maharashtra & Ors. (Crl.W.P.No. 788/2002
decided on 7th October, 2002 with regard to custody of girls rescued who
were under the age of 18 years. A challenge had been laid before the
Division Bench with regard to an order passed by the Juvenile Justice Board
for releasing the rescued girls. It had been argued that it was obligatory on
the part of the Juvenile Justice Board to record a finding that they were not
minors but were adult females before making the order releasing them.
170. The contentions on behalf of the rescued persons before the Bombay
High Court, with regard to the manner in which they are to be treated, have
been detailed in para 14 of the judgment which may be usefully adverted to
and extracted in extenso, which reads as follows:-
―14. Ms. Adenwalla urged that some of the rescued girls being
under 18 years of age are victims and cannot be treated as accused.
Under section 8 of the PITA soliciting in a public place is an
offence. The same provision cannot be applied to juveniles. The
learned counsel urged that the law does not permit a girl under 18
years of age to consent to sexual intercourse. Hence a child cannot
be charged for soliciting as in the eyes of law, her consent has been
vitiated. She also drew our attention to certain provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000 (―The
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 125
JJA‖ for short). She submitted that the said Act aims at providing
proper care, protection and treatment of children under 18 years of
age. 'Juvenile' or child is defined under the JJ Act as a child who
has not completed 18 years of age. A child who is said to have
committed an offence is described as a juvenile in conflict with law
and destitute children who are likely to be grossly abused or
tortured or who are mentally or physically challenged, are described
as children in need of care and protection. She submitted that a
juvenile in conflict with law has to be produced before Juvenile
Justice Board and a child in need of care and protection has to be
produced before the child welfare committee. Thus, the JJA deals
with two types of children, juveniles in conflict with law and
children in need of care and protection. A juvenile girl found
soliciting can be categorised both as a juvenile in conflict with law
under section 2(1) as well as child in need of care and protection
under section 2(d)(vi). The learned counsel contended that
considering the fact that the girls under 18 years of age are
victims of circumstances and are forcibly brought into flesh
traffic by traffickers, who may include their family, relatives
and friends, such girls cannot be treated as accused. They
would more appropriately fall in the category of children in
need of care and protection under section 2(d)(vi). She
submitted that it is, therefore, necessary that all such girls should be
produced before the Child Welfare committee and not before the
Juvenile Justice Board. This is because it is necessary to
rehabilitate these girls rather than penalise them, for they are forced
into these activities.‖
(Emphasis supplied)
171. The court had dwelt on the issue as to when a child would be dealt with
as a juvenile in conflict with law, and whether a person rescued in such
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 126
circumstances, is a child in need of care and protection. The observations of
the Bench on this aspect are important and read as follows :-
―33. We express our displeasure at the manner in which this case
has been handled by the Board. First of all if the girls were minors
and they were not involved in any offence, they could not have
even been described as juveniles in conflict with law. They were
children in need of care and protection as per the provisions of the
JJA. They ought to have been produced before the Child Welfare
Committee once their minority was confirmed. Assuming they had
to be produced before the Magistrate to seek orders for their
production before the Child Welfare Committee and not before the
Juvenile Justice Board because they were minors and not accused.
Assuming further, that they could have been produced before the
Juvenile Justice Board, there was no warrant for the board to release
them because the record before the Board clearly indicated that the
girls were minors. The Board could have released them, without
conditions, only if they were majors. Because they were minors, the
Board was duty bound to follow the procedure prescribed under the
JJA. The Board ought to have given due consideration to the request
of the probation officer that they should not be released because she
was awaiting information about them from the states from where they
had come. This request was obviously made to explore the possibility
of finding out their parents so that their custody could be entrusted to
them with some conditions. Surprisingly the Board released them on
a condition that they shall not enter into the local jurisdiction of social
welfare branch.
34. We have referred to the relevant provisions of the JJA which
make it evident that both, a juvenile in conflict with law or a child in
need of care and protection have to be dealt with, keeping in mind the
possibility of their reformation and rehabilitation. The JJA provides
for Protection Homes or Special Homes where such girls have to be
kept for safe custody, because the fear is that they may be driven back
to the brothels. The Board should have been alive to this. By asking
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 127
the girls not to enter into the local jurisdiction of Social Service
Branch, the Board has treated them as confirmed prostitutes. Such
orders can be passed under Section 20 of the PITA which empowers a
Magistrate to order removal of prostitutes from any place and prohibit
them from re-entering it. We wonder how the Board could have
passed such harsh order to the detriment of the minor girls. The
learned Magistrate presiding over the Board has observed that he had
personally asked the girls and they had shown eagerness to be
released. There is no provision under the JJA whereunder, the
board can release the minor girls because they desired to be
released without giving a thought to their rehabilitation and the
frightening possibility of their re-entry into brothels.‖
(Emphasis supplied)
172. On a careful consideration of the matter, the following directions were
inter alia made by the court :-
―37. We feel that the following directions may prevent
recurrence of such events in future.
(A) No Magistrate can exercise jurisdiction over any person
under 18 years of age whether that person is a juvenile in
conflict with law or a child in need of care and protection, as
defined by Sections 2(1) and 2(d) of the Juvenile Justice (Care and
Protection of Children) Act, 2000. At the first possible instance, the
Magistrates must take steps to ascertain the age of a person who
seems to be under 18 years of age. When such a person is found
to be under 18 years of age, the Magistrate must transfer the
case to the Juvenile Justice Board if such person is a juvenile in
conflict with law, or to the Child Welfare Committee if such a
person is a child in need of care and protection.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 128
(B) A Magistrate before whom persons rescued under the Immoral
Traffic (Prevention) Act, 1956 or found soliciting in a public place
are produced, should, under Section 17(2) of the said Act, have
their ages ascertained the very first time they are produced before
him. When such a person is found to be under 18 years of age, the
Magistrate must transfer the case to the Juvenile Justice Board if
such person is a Juvenile in conflict with law, or to the Child
Welfare Committee if such person is a child in need of care and
protection.‖
(Emphasis supplied)
173. So far as release of a person under eighteen years of age under section
16 and 17 of the IT Act, 1956 are concerned, the Division Bench of the
Bombay High Court directed as follows :-
―(C) Any juvenile rescued from a brothel under the Immoral Traffic
(Prevention) Act, 1956 or found soliciting in a public place should
only be released after an inquiry has been completed by the
Probation Officer.
(D) The said juvenile should be released only to the care and
custody of a parent/guardian after such parent/guardian has been
found fit by the Child Welfare Committee to have the care and
custody of the rescued juvenile.
(E) If the parent/guardian is found unfit to have the care and
custody of the rescued juvenile, the procedure laid down under
the Juvenile Justice (Care and Protection of Children) Act, 2000
should be followed for the rehabilitation of the rescued child.
(F) No advocate can appear before the Child Welfare Committee on
behalf of a juvenile produced before the Child Welfare Committee
after being rescued under the Immoral Traffic (Prevention) Act,
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 129
1956 or found soliciting in a public place. Only the parents/guardian
of such juvenile should be permitted to make representations before
the Child Welfare Committee through themselves or through an
advocate appointed for such purpose.
(G) An advocate appearing for a pimp or brothel keeper is barred
from appearing in the same case for the victims rescued under the
Immoral Traffic (Prevention) Act, 1956.‖
(underlining by me)
174. It was observed by the High Court of Bihar in the judgment reported at
AIR 1989 Pat 217 Krishna Bhagwan vs. State of Bihar that an extraordinary
procedure has been prescribed under the JJ Act for enquiring into the offence
alleged to have been committed by child/juvenile and punishment to be
imposed, the basic approach appears to be curative instead of punitive. It
was held by the Bench that the Juvenile Justice Act is a solemn promise by
the present to the future. Those who are charged with the statutory duty must
not fall. Obedience to law by all concerned alone shall ensure justice to
delinquent children.
175. The above conclusions are supported by the International Conventions
and Protocols.
176. By 1990, international awareness of the commercial sexual exploitation
and the sale of children had grown to such a level that the United Nations
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 130
Commission on Human Rights decided to appoint a Special Rapporteur on the
sale of children, child prostitution and child pornography by resolution
1990/68, mandating the Special Rapporteur to investigate the exploitation of
children around the world and to submit reports thereon to the General
Assembly and the Commission on Human Rights, making recommendations
for the protection of the rights of the children concerned. These
recommendations are targeted primarily at Governments, United Nations
bodies and non-governmental organizations.
177. The Special Rapporteur on the Sale of Children, Child Prostitution
and Child Pornography works on behalf of the United Nations Human
Rights Council to investigate the exploitation of children around the world
and make recommendations to governments on how to end such practices.
The act of prostituting a child is sometimes carried out by another
party, as stated in the definition provided by the Special Rapporteur on the
Sale of Children, Child Prostitution and Child Pornography.
178. According to the Special UN Rapporteur, child trafficking ―consists of
all acts involved in the recruitment or transportation of persons within or
across borders, involving deception, coercion or force, debt bondage or
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 131
fraud, for the purpose of placing children in situations of abuse or
exploitation, such as forced prostitution, slavery-like practices, battering or
extremely cruelty, sweatshop labour or exploitative domestic services.‖
179. The United Nations Special Rapporteur defines child prostitution as
―sexual exploitation of a child for remuneration in cash or in kind, usually but
not always organized by an intermediary (parent, family member, procurer,
teacher, etc.).‖
180. Moreover, Europol's definition of trafficking is that ―subjection of a
person to the real and illegal way of other person by using violence or
menaces or by abuse of authority or intrigue, especially with to the
exploitation of prostitution, homes of sexual exploitation and assault or
minors or trade in abandoned children. These forms of exploitations also
include the production, sale or distribution of child-pornography material‖
(Report on trafficking of women and children in Europe, 2001).
181. On the 7th of June, 1999, Convention no. 182 of the International
Labour Organization being ‗The Worst Forms of Child Labour Convention,
1999‟ was adopted.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 132
182. Article 3 of this Convention describes the expression ‗the worst forms
of child labour' thus: -
For the purposes of this Convention, the term the worst forms of child
labour comprises:
(a) all forms of slavery or practices similar to slavery, such as the sale and
trafficking of children, debt bondage and serfdom and forced or compulsory
labour, including forced or compulsory recruitment of children for use in
armed conflict;
(b) the use, procuring or offering of a child for prostitution, for the
production of pornography or for pornographic performances;
(c) the use, procuring or offering of a child for illicit activities, in particular
for the production and trafficking of drugs as defined in the relevant
international treaties;
(d) work which, by its nature or the circumstances in which it is carried out, is
likely to harm the health, safety or morals of children.
183. This Convention has unequivocally declared that the use, procuring or
offering of a child for prostitution is one of the worst forms of child labour.
184. This Convention has not been ratified by India.
185. Article 3 of ILO Convention No.182 also defines ―child exploitation
and child labor" as
―(a) all forms of slavery or practices similar to slavery, sale and
trafficking of children, forced or compulsory labour including
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 133
debt bondage and serfdom and forced or compulsory labour
including forced or compulsory recruitment of children for use in
armed conflict;
(b) the use, procuring or offering of a child for prostitution,
production of pornography or for pornographic performances.
(c) The use, procuring or offering of a child for illicit activities in
particular for the production and trafficking of drugs as defined
in the revised international treaties.
(d) Work which, by its nature or the circumstances in which it is
carried out, is likely to harm the health, safety or morals of
children."
186. The problems which trafficking of persons has raised are not confined
to national borders. In view of the trans-national nature of the problem, the
'Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children' (also referred to as the ‗Trafficking
Protocol') which is a protocol to the Convention against Transnational
Organised Crime was adopted by the United Nations in Palermo in 2000. It
entered into force on 25th December, 2003. The protocol had been signed by
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 134
117 countries by October, 2009 India signed the same on 12th December,
2002 and there were 124 parties to it.
187. Article 2 of the Trafficking Protocol provides the following Statement
of purpose:
―The purposes of this Protocol are:
(a) To prevent and combat trafficking in persons, paying particular attention
to women and children;
(b) To protect and assist the victims of such trafficking, with full respect for
their human rights; and
(c) To promote cooperation among States Parties in order to meet those
objectives.‖
188. Article 3 of the Protocol covers the Use of terms and definitions for the
purposes of this Protocol.
―(a) Trafficking in persons shall mean the recruitment,
transportation, transfer, harbouring or receipt of persons, by means of
the threat or use of force or other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person,
for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 135
of sexual exploitation, forced labour or services, slavery or practices
similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the
intended exploitation set forth in subparagraph (a) of this article shall
be irrelevant where any of the means set forth in subparagraph (a)
have been used;
(c) The recruitment, transportation, transfer, harbouring or
receipt of a child for the purpose of exploitation shall be considered
"trafficking in persons" even if this does not involve any of the
means set forth in subparagraph (a) of this article;
(d) Child shall mean any person under eighteen years of age‖
Thus, the above Protocol also recognises and declares that the
recruitment, transportation, transfer, harbouring or receipt of any person
under eighteen years of age , for the purpose of exploitation of the prostitution
of others or other forms of sexual exploitation shall be considered
„trafficking in persons‟
189. Emphasis has been laid in this Protocol to provide definitions of
trafficking which reflect the need 'for special safeguards and care for children
including appropriate legal protection'. The Protocol has also laid emphasis
on ensuring that trafficked persons are not punished for any affairs or
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 136
activities related to their having been trafficked such as prostitution and
immigration violations, clearly treating them as victims and not offenders.
190. I may refer to yet another document, that is, the Optional Protocol to
the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography. This protocol was adopted and opened
for signature, ratification and accession by the General Assembly resolution
of 25 May 2000 and was entered into force on 18 January 2002. The Protocol
has 117 signatories and 137 parties who undertook to prohibit child
prostitution. India signed the Protocol on 15th November, 2004 and ratified
the same on 16th August, 2005. The Protocol was entered into in order to
further achieve the purposes of and reinforce the Convention on the Rights of
the Child and for the implementation of its provisions, the state parties
including India undertook to guarantee the protection of the child from the
sale of children, child prostitution and child pornography.
191. Article 2 of the Optional Protocol to the Convention on the Rights of
Child on Sale of Children, Child Prostitution and Child Pornography states as
follows:
"Article 2
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 137
For the purpose of the present Protocol:
(a) xxx xxx xxx
(b) Child prostitution means the use of a child in sexual
activities for remuneration or any other form of consideration"
192. Article 8 of this Protocol states that -
―1. States Parties shall adopt appropriate measures to protect the
rights and interests of child victims of the practices prohibited
under the present Protocol at all stages of the criminal justice
process, in particular by:
(a) Recognizing the vulnerability of child victims and adapting
procedures to recognize their special needs, including their
special needs as witnesses;
(b) Informing child victims of their rights, their role and the scope,
timing and progress of the proceedings and of the disposition of
their cases;
(c) Allowing the views, needs and concerns of child victims to be
presented and considered in proceedings where their personal
interests are affected, in a manner consistent with the procedural
rules of national law;
(d) Providing appropriate support services to child victims
throughout the legal process;
xxxxxx
3. States Parties shall ensure that, in the treatment by the criminal
justice system of children who are victims of the offences described
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 138
in the present Protocol, the best interest of the child shall be a
primary consideration.‖
193. It is important to note that throughout the Protocol, child prostitutes
are referred to as child victims. It is recognised that the child is vulnerable
and needs care and protection.
194. The United States of America has enacted the U.S. Trafficking Victims
Protection Act of 2000. The definition of 'Severe Forms of Trafficking in
Persons, in this enactment includes any commercial sex act performed by a
person under the age of 18. This means that any minor who is commercially
sexually exploited is defined as a trafficking victim.
195. I have referred to the Convention on the Rights of the Child earlier
which recognizes the right of the child to be protected from economic
exploitation and from performing any work that is likely to be hazardous or to
interfere with the child's education, or to be harmful to the child's health or
physical, mental, spiritual, moral or social development; it recognizes that a
number of particularly vulnerable groups, including girl children, are at
greater risk of sexual exploitation and that girl children are disproportionately
represented among the sexually exploited; believes that the elimination of
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 139
the sale of children, child prostitution and child pornography will be
facilitated by adopting a holistic approach. The International instruments also
recognize factors, including underdevelopment, poverty, economic disparities,
inequitable socio-economic structure, dysfunctioning families, lack of
education, urban-rural migration, gender discrimination, irresponsible adult
sexual behaviour, harmful traditional practices, armed conflicts amongst
others as contributing to the trafficking in children.
The international instruments therefore declare and treat a child found
involved in any aspect of prostitution as a victim and do not permit him/her to
be treated as an offender.
Permissibility of reading International Covenants/Protocols into domestic
law and extent thereof
196. We have noticed above some international instruments which have a
bearing on the rights of the child and obligations of the state as well as society
but have not been ratified by India and may not be the subject matter of India
legislation. Is it legally permissible to refer to these instruments? if yes, then
to what extent and purpose? I propose to consider these questions briefly
hereafter.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 140
197. The Supreme Court has repeatedly held that International Treaties and
Conventions are significant for the purpose of interpretation of the
Constitution and domestic jurisprudence and should be read while interpreting
domestic law if they are not contrary to domestic law and that there would be
no inconsistency in the use of international norms to the domestic legislation.
Thus, the international conventions and norms are to be read into them in the
absence of enacted domestic law occupying the field when there is no
inconsistency between them.
198. In AIR 1996SC2715 : (1996) 5 SCC 647 Vellore Citizens Welfare
Forum Vs. Union of India and others, while deciding on a public interest
petition ,filed under Article 32 of the Constitution of India and directed
against the pollution being caused by enormous discharge of untreated
effluent by the tanneries and other industries in the State of Tamil Nadu, the
Supreme Court held that the rules of customary international law which are
not contrary to the municipal law shall be deemed to have been incorporated
in the domestic law and shall be followed by the courts of law. The Supreme
Court referred to the enunciation of the principle in its earlier pronouncements
in Addl. Distt. Magistrate Jabalpur v. Shivakant Shukla 1976 Cri LJ 945,
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 141
Jolly George Varghese's case [1980] 2 SCR 913 and the Gramophone
Company's case 1984 (2) ECC 142‖
199. In the case of AIR 1997 SC 3011 Vishaka and others Vs. State of
Rajasthan and Others, the Supreme Court again reiterated the above
principle holding that-
― 7. xxx Any International Convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into
these provisions to enlarge the meaning and content thereof, to promote
the object of the constitutional guarantee. This is implicit from
Article 51(c) and the enabling power of the Parliament to enact laws for
implementing the International Conventions and norms by virtue of
Article 253 read with Entry 14 of the Union List in Seventh Schedule of
the Constitution. Article 73also is relevant. It provides that the
executive power of the Union shall extend to the matters with respect to
which Parliament has power to make laws. The executive power of the
Union is, therefore, available till the Parliament enacts legislation to
expressly provide measures needed to curb the evil.‖
200. In (2003) 6 SCC 1 Kapila Hingorani Vs. State of Bihar, stressed on
the importance of reading into International Treaties and Conventions while
interpreting domestic law and the constitution observing as follows-
―47. It is also well-settled that a statute should be interpreted in the light of the
International Treaties and Conventions. In Chairman, Railway Board and
Ors. v. Mrs. Chandrima Das and Ors. : 2000 Cri LJ 1473 this Court stated
the law thus:-
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 142
"24. The International Covenants and Declarations as adopted by the
United Nations have to be respected by all signatory States and the
meaning given to the above words in those Declarations and Covenants
have to be such as would help in effective implementation of those
rights. The applicability of the Universal Declaration of Human Rights
and the principles thereof may have to be read, if need be, into the
domestic jurisprudence." ―
201. The principles which would govern the extent and manner of
applicability of International Conventions and treaties have been recently
summed up in a pronouncement of the Supreme Court reported at (2008) 13
SCC 30 Entertainment Network (India) Ltd. Vs. Super Cassette Industries
Ltd.. Here the court was concerned with an issue involving interpretation of
Section 31 of the Copyright Act, 1957 . With regard to the application of
International conventions and treaties in India, the court extracted several
prior pronouncements and laid down the principles thus :-
―APPLICATION OF INTERNATIONAL CONVENTIONS IN INDIA
47. It is for the aforementioned limited purpose, a visit to the provisions of
International Conventions would be necessary. In interpreting the
domestic/municipal laws, this Court has extensively made use of International
law inter alia for the following purposes:
(i) As a means of interpretation;
(ii) Justification or fortification of a stance taken;
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 143
(iii) To fulfill spirit of international obligation which India has entered into,
when they are not in conflict with the existing domestic law;
(iv) To reflect international changes and reflect the wider civilization;
(v) To provide a relief contained in a covenant, but not in a national law;
(vi) To fill gaps in law.
48. Beginning from the decision of this Court in Kesavananda Bharati v.
State of Kerala : AIR 1973 SC 1461, there is indeed no dearth of case laws
where this Court has applied the norms of international laws and in particular
the international covenants to interpret domestic legislation. In all these cases,
this Court has categorically held that there would be no inconsistency in the
use of international norms to the domestic legislation, if by reason thereof the
tenor of domestic law is not breached and in case of any such inconsistency,
the domestic legislation should prevail.
In Jagdish Saran and Ors. v. Union of India : [1980] 2 SCR 831, it was
observed:
It is also well-settled that interpretation of the Constitution of India or statutes
would change from time to time. Being a living organ, it is ongoing and with
the passage of time, law must change. New rights may have to be found out
within the constitutional scheme. Horizons of constitutional law are
expanding.
49. In the aforementioned judgment, this Court referred to a large number of
decisions for the purpose of interpreting the constitutional provisions in the
light of the international treaties and conventions. Yet again in Indian
Handicrafts Emporium and Ors. v. Union of India : AIR2003SC3240 , this
Court considered the Convention on International Trade in Endangered
Species (CITES) and applied the principles of purposive constructions as also
not only the Directive Principles as contained in Part IV of the Constitution
but also Fundamental Duties as contained in Part IVA thereof.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 144
50. These judgments were referred to in the decision of Liverpool and
London S.P. and I Asson. Ltd. v. M.V. Sea Success I and Anr. : (2004) 9
SCC 512 , wherein this Court observed that as no statutory law in India
operated in the field, interpretative changes, if any, must, thus be made
having regard to the ever changing global scenario. Liverpool also referred
to the decision of the court in M.V. Elisabeth 1993 Supp. (2) SCC 433 as an
authority for the proposition that the changing global scenario should be kept
in mind having regard to the fact that there does not exist any primary act
touching the subject and in absence of any domestic legislation to the
contrary.Concurring with the said decisions, it was however opined that the
same could not mean that it restricted the jurisdiction of the Indian High
Courts to interpret the domestic legislation strictly according to the judge
made law.
51. Liverpool and London S.P. and I Asson. Ltd. (supra) has been followed
by the Supreme Court in a plethora of cases inter alia The State of West
Bengal v. Kesoram Industries Ltd. and Ors. [2004] 2 66I TR 721(SC) . In
Pratap Singh v. State of Jharkhand and Anr. : 2005 Cri LJ 3091 wherein
this Court directed to interpret the Juvenile Justice Act in light of the
Constitutional as well as International Law operating in the field. {See also
Centrotrade Minerals and Metal Inc. v. Hindustan Copper Limited (2006)
11 SCC 245 ; State of Punjab and Ors. v. Amritsar Beverages Ltd. and Ors.
: AIR 2006 SC 2820 ; State of Punjab and Anr. v. Devans Modern
Brewaries Ltd. and Anr. : (2004) 11 SCC 26 and Anuj Garg and Ors. v.
Hotel Association of India and Ors. : AIR 2008 SC 663.
52. However, applicability of the International Conventions and Covenants,
as also the resolutions, etc. for the purpose of interpreting domestic statute
will depend upon the acceptability of the Conventions in question. If the
country is a signatory thereto subject of course to the provisions of the
domestic law, the International Covenants can be utilized. Where
International Conventions are framed upon undertaking a great deal of
exercise upon giving an opportunity of hearing to both the parties and
filtered at several levels as also upon taking into consideration the different
societal conditions in different countries by laying down the minimum
norm, as for example, the ILO Conventions, the court would freely avail the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 145
benefits thereof. Those Conventions to which India may not be a signatory
but have been followed by way of enactment of new Parliamentary statute
or amendment to the existing enactment, recourse to International
Convention is permissible.
53. This kind of stance is reflected from the decisions in PUCL v. Union of
India : AIR 1997 SC 1203 , John Vallamattom v. Union of India : AIR 2003
SC 2902 , Madhu Kishwar v. State of Bihar : AIR 1996 SC 1864 , Kubic
Darusz v. Union of India : 1990 Cri LJ 796 , Chameli Singh v. State of U.P.
: AIR 1996 SC 1051 , C. Masilamani Mudaliar v. Idol of Sri
Swaminathaswami Thirukoil : [1996] 1 SCR 1068, Apparel Export
Promotion Council v. A.K. Chopra : (1999) ILLJ 962 SC , Kapila
Hingorani v. State of Bihar : (2003) III LLJ 31 SC , State of Punjab and
Anr. v. Devans Modern Breweries and Anr. : (2004) 11 SCC 26 and
Liverpool & London S.P. & I Asson. Ltd. v. M.V. Sea Success I : (2004) 9
SCC 512 .
―78. However, applicability of the international conventions and
covenants, as also the resolutions, etc. for the purpose of interpreting
domestic statute will depend upon the acceptability of the
conventions in question. If the country is a signatory thereto subject
of course to the provisions of the domestic law, the international
covenants can be utilised. Where international conventions are
framed upon undertaking a great deal of exercise upon giving an
opportunity of hearing to both the parties and filtered at several
levels as also upon taking into consideration the different societal
conditions in different countries by laying down the minimum norm,
as for example, the ILO Conventions, the court would freely avail the
benefits thereof.
79. Those conventions to which India may not be a signatory
but have been followed by way of enactment of new parliamentary
statute or amendment to the existing enactment, recourse to
international convention is permissible. This kind of stance is
reflected from the decisions in People's Union for Civil
Liberties v. Union of India[(1997) 3 SCC 433 : 1997 SCC (Cri) 434]
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 146
, John Vallamattom v. Union of India [(2003) 6 SCC 611] , Madhu
Kishwar v. State of Bihar [(1996) 5 SCC 125] , Kubic
Darusz v.Union of India [(1990) 1 SCC 568 : 1990 SCC (Cri) 227]
, Chameli Singh v. State of U.P. [(1996) 2 SCC 549] , C. Masilamani
Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami
Thirukoil [(1996) 8 SCC 525] , Apparel Export Promotion
Council v.A.K. Chopra [(1999) 1 SCC 759 : 1999 SCC (L&S) 405]
, Kapila Hingorani v. State of Bihar [(2003) 6 SCC 1] , State of
Punjab v. Devans Modern Breweries Ltd. [(2004) 11 SCC 26 :
(2003) 10 Scale 202] and Liverpool & London S.P. & I Assn.
Ltd. v. M.V. Sea Success I [(2004) 9 SCC 512 : (2003) 10 Scale 1] .
80. Furthermore, as regards the question where the protection
of human rights, environment, ecology and other second-
generation or third-generation rights is involved, the courts should
not be loathe to refer to the International Conventions."
(Emphasis supplied)
202. Thus, it is clear that courts have repeatedly relied on and applied the
norms of International Laws and international covenants to interpret domestic
legislation. The Supreme Court has reiterated that there would be no
inconsistency in the use of international norms to domestic legislation, if by
reason thereof the domestic law is not breached. International conventions and
norms have been read into fundamental rights in the absence of domestic law
occupying the field. Conventions to which India is not a signatory have also
been permitted to be referred to for the purposes of statutory interpretation.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 147
203. Article 23 of the Constitution of India prohibits trafficking in human
beings and beggar and several similar forms of forced labour. It further
mandates that any contravention of this constitutional right shall be an offence
punishable under the Law.
204. Pursuant to the mandate of the Constitution of India, several
legislations have been adopted, some of which may usefully be referred to
hereafter. These legislations also reflect India's seriousness of discharging its
commitment and responsibility under international instruments.
205. Begging is the subject matter of a special enactment titled Bombay
Prevention of Begging Act, 1956 (adopted by Delhi about 45 years ago in
1960). Section 2(1)(i) of the Act defines begging. Section 6 provides
penalty for begging after a detention as a beggar. Under Section 11, any
person who employs or causes, any person to solicit or receive alms, or
whoever having the custody, charge or care of a child, connives at or
encourages the employment or the causing a child to solicit or receive alms or
whoever uses another person as an exhibit, is rendered liable for
imprisonment of up to three years but not less than one year. So far as the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 148
definition of a child is concerned, under Section 2(1)(iv) a child is defined as
the meaning assigned to it under the Children's Act.
206. Similarly, The Child Labour (Prohibition and Regulation) Act, 1986
prohibits child labour. Section 3 of Child Labour (Prohibition and
Regulation) Act, 1986 lays down that no child be permitted to work or be
employed in any occupation as set forth in the schedule or the Act. The
regulations of conditions of work of children have been dealt under Section 7
to 13 prescribing the hours and period of work, holidays, disputes as to age,
minimum standards to ensure health and safety. Section 14 prescribes a
penalty of imprisonment of 3 months extendable to one year or fine of
Rs.10,000/- upto Rs.20,000/- or both or having contravened the limitations
laid down in Section 3.
207. Begging and child labour thus are specific offences under the two
special enactments noticed above.
208. So far as the IT Act is concerned, an examination of Section 4 would
show that it makes punishable, an act of a person over the age of eighteen
years who knowingly lives wholly or in part on the earnings of the
prostitution of any other person, with imprisonment for a term of two years.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 149
Where such earnings relate to the prostitution of a child or a minor, the Act is
punishable with the more severe sentence of imprisonment for a term of not
less than seven years and not more than ten years. A presumption is provided
under sub-section (2) of Section 4 of the IT Act, 1956, that even having prior
knowledge of such an offence and yet to continue to stay on the earnings is
made punishable.
209. A protection home is defined under sub-section (g) of section 2 as an
institution by whatever name called (being an institution established or
licensed as such under section 21), in which persons, who are in need of care
and protection, may be kept under this Act and where appropriate technically
qualified persons, equipment and other facilities have been provided, but does
not include - (i) a shelter where undertrials may be kept in pursuance of this
Act, or (ii) a corrective institution.
210. The scheme of the JJ Act clearly points to only one conclusion. It is
important to note that while defining a ―child in need of care and protection‖
in the JJ Act, the legislature has inter alia included ―a child who is found
begging, or who is either a street child, or a working child' [Section 2(d)(ia)].
The definition also includes a child who is being or is likely to be grossly
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 150
abused, tortured or exploited for the purpose of sexual abuse or illegal acts
[Section 2(d)(vi)] as well as a child who is found vulnerable and is likely to
be inducted into drug abuse or trafficking.
211. Under Section 23 of the JJ Act, 2000, if a person, having the actual
charge of or control over, the child, inter alia assaults, abandons, exposes or
wilfully neglects him or causes or procures him to be assaulted abandoned,
exposed or neglected in a manner likely to cause such child unnecessary
mental or physical suffering, he shall be punishable with imprisonment for a
term which may extend to six months or fine or with both.
Similarly by virtue of section 24, whoever employes or uses any
juvenile or the child for the purpose or causes any such person to beg shall be
punishable with imprisonment for a term which may extend to three years and
shall also be liable to fine.
Abetment of the commission of such offence is punishable with
imprisonment for a term which may extend to one year and also with fine.
212. The ostensible procurement by any person of a child for the purpose of
any hazardous employment, keeping him in bondage and withholding his
earnings or uses such earning for his own purposes shall be punishable with
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imprisonment extendable upto three years as well as fine under Section 26.
Prostitution of a child is without any doubt hazardous employment of the
child. It severely adversely impacts the mental and physical health and
welfare of the child.
213. Offences punishable under Sections 23, 24, 25 and 26 are made
cognizable under Section 27 of the JJ Act, 2000.
214. Under Section 28 of the JJ Act, 2000 where an act or omission
constitutes an offence punishable under the JJ Act as well as any other Central
or State Act, then notwithstanding anything contained in any law for the time
being in force, the offender found guilty of such offences shall be liable to
punishment only under such of the enactments as which provides for
punishment which is greater in degree.
215. My attention has also been drawn to the binding principles laid down in
Rule 3 of the Juvenile Justice and Protection of Children of the Juvenile
Justice (Care & Protection) Rules, 2007 which are placed in Chapter II of
the Rules. The same clearly sets out the legislative intent of presumption of
the innocence of a child. The relevant principles statutorily prescribed read as
follows :-
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3. Fundamental Principles to be followed in administration
of these rules -(1) The State Government, the Juvenile Justice
Board, the Child Welfare Committee or other competent authorities
or agencies, as the case may be, while implementing the provisions
of these rules shall abide and be guided by the principles, specified
in sub-rule (2).
(2) The following principles shall, inter alia, be fundamental to
the application, interpretation and implementation of the Act and
the rules made hereunder:
I. Principle of presumption of innocence:
(a) A juvenile or child or juvenile in conflict with law
is presumed to be innocent of any malafide or criminal
intent up to the age of eighteen years.
(b) The juvenile's or juvenile's in conflict with law's or
child's right to presumption of innocence shall be
respected throughout the process of justice and
protection, from the initial contact to alternative care,
including aftercare.
(c) Any unlawful conduct of a juvenile or a child or a
juvenile in conflict with law which is done for survival,
or is due to environmental or situational factors or is
done under control of adults, or peer groups, ought to
be covered by the principles of innocence.
(d) The basic components of presumption of innocence
are:
(i) Age of innocence
Age of innocence is the age below which a juvenile or
child or a juvenile in conflict with law cannot be
subjected to the criminal justice system. The Beijing
Rule 4(1) clearly lays down that ―the beginning of the
age of criminal responsibility shall not be fixed at too
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 153
low an age level bearing in mind the facts of mental
and intellectual maturity‖. In consonance with this
principle, the mental and intellectual maturity of
juvenile or child or a juvenile in conflict with law
below eighteen years is considered insufficient
throughout the world.
II. Principle of dignity and worth:
(a) Treatment that is consistent with the child's sense
of dignity and worth is a fundamental principle of
juvenile justice. This principle reflects the fundamental
human right enshrined in Article 1 of the Universal
Declaration of Human Rights that all human beings are
born free and equal in dignity and rights. Respect of
dignity includes not being humiliated, personal
identity, boundaries and space being respected, not
being labelled and stigmatized, being offered
information and choices and not being blamed for
their acts.
(b) The juvenile's or child‟s right to dignity and worth
has to be respected and protected throughout the entire
process of dealing with the child from the first contact
with law enforcement agencies to the implementation
of all measures for dealing with the child.
xxx xxx
IV. Principle of best interest:
(a) In all decisions taken within the context of
administration of juvenile justice, the principle of best
interest of the juvenile or the juvenile in conflict with
law or child shall be the primary consideration.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 154
(b) The principle of best interest of the juvenile or
juvenile in conflict with law or child shall mean for
instance that the traditional objectives of criminal
justice, retribution and repression, must give way to
rehabilitative and restorative objectives of juvenile
justice.
(c) This principle seeks to ensure physical, emotional,
intellectual, social and moral development of a
juvenile in conflict with law or child so as to ensure
the safety, well being and permanence for each child
and thus enable each child to survive and reach his
or her full potential.
(Emphasis supplied)
216. Each one of us is a product of the social values in which we have
grown. Whatever we have witnessed within the confines of our homes as
well as in the behavior of close ones, especially parents would indelibly
impact the manner in which we think and conduct ourselves. Thus a child
who has witnessed a drunken father beating his hapless mother every night
and then indulge in violent intimacies will grow up believing that the manner
in which his father treated his mother is the right and only way that women
are to be treated. The fact that the hapless mother bears such violence day
after day would lend further credibility and permissibility to such treatment of
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 155
women in the child's mind. A child has little, if any, ability to rationalise or
understand that the poor mother perhaps had no other option or was
subjugated by the weight of her economic deprivation or, more importantly
concerns about the welfare of the child as well as fears of being separated
from him. The impact of violence or lawlessness on the child gets aggravated
by insufficiency in education, lack of role models amongst peers as well as
adults and societal trends.
217. Benjamin N. Cardozo wrote about the mind of the judges at page 11 of
the 5th Indian Reprint in his renowned publication ‗The Nature of the
Judicial Process‟. While dwelling on the principles followed by judges in
decision making, the learned judge has referred to consciousness. Some light
on the issues raised in the present matter are thrown by the observations of the
learned judge when he talks of the forces which influence even judicial
process thus:-
―More subtle are the forces so far beneath the surface that they
cannot reasonably be classified as other than subconscious. It is
often through these subconscious forces that judges are kept
consistent with themselves, and inconsistent with one another. We
are reminded by William James in a telling page of his lectures on
pragmatism that every one of us has in truth an underlying
philosophy of life, even those of us to whom the names and the
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 156
notions of philosophy are unknown or anathema. there is in each of
us a stream of tendency, whether you choose to call it philosophy or
not, (Cf. N.M. Butier, "Philosophy" pp.r8, 43-) which gives
coherence and direction to thought and action. Judges cannot escape
that current any more than other mortals. All their lives, forces
which they do not recognize and cannot name, have been tugging at
them - inherited instincts, tradition beliefs, acquired convictions; and
the resultant is an outlook of life, a conception of social needs, a
sense in James's phrase of "the total push and pressure of the
cosmos," which, when reasons are nicely balanced, must determine
where choice shall fall. In this mental background every problem
finds its setting. We may try to see things as objectively as we
please. None the less, we can never see them with any eyes except
our own.‖
218. If such is the influence of surrounding forces on the mind of even the
discriminatory judge how can anyone expect a child to not to be influenced by
his upbringing, society, community, education and experiences? Certainly, he
would be more vulnerable to every such pressure, completely raw and
untrained in discerning the difference between the right and the wrong, the
permissible and the impermissible, the legal and the illegal.
219. What compelled the child to have indulged in objectionable activity?
Was it threat and force or was it economic necessity or peer pressure or was it
just an idle past time? The conduct of the child is undoubtedly a product of
his circumstances and experiences.
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220. The Convention on the Rights of the Child recognizes the vulnerability
of girl children who are at a greater risk of sexual exploitation. Prostitution is
one of the offences described in the protocol which reiterates that children are
the victims of the offences described in the protocol.
221. For these reasons, the international conventions and instruments
proceed on the basis that so far as trafficking is concerned, children are
exploited and victims, not offenders. The victims of the trap often being the
poor, illiterate and ignorant sections of society being the target group of the
flesh trade. It has been repeatedly held that the rights of the child is the
concern of the society in order to provide a better future for our nation. All
International covenants and treaties have thus also provided means to
ameliorate the social, educational, economical and cultural conditions of
children and to provide our children with a secure environment conducive to
their growth.
222. On the question under examination; the observations of the Supreme
Court in the pronouncement reported at (1997) 8 SCC 114 : AIR 1997 SC
3021 Gaurav Jain vs. Union of India & Ors. shed valuable light on the
subject. In this case, the court was concerned with several writ petitions filed
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 158
under Article 32 of the Constitution on behalf of the prostitutes claiming their
right to be free citizens; right not to be trapped again, re-adjusted by economic
empowerment, social justice and self sustenance thereby with equality of
status, dignity of person in truth and reality and social integration in the main
stream, being the magna carta. The court found that many prostitutes
themselves were child prostitutes or had children residing with them.
Addressing the plight and needs of such children, the court made several
observations which throw light on the issue raised in the present case. A
reading of the judgment would show that a child found engaged in
prostitution has been referred to as a ―neglected juvenile― which expression
has been used synonymously as a ―child in need of care and protection‖. The
court considered the provisions of the Juvenile Justice Act and observed as
follows :-
―35. ...........A child brought to associate with a prostitute or is
engaged in the prostitution or the profession of prostitution or
another juvenile who leads an immoral or depraved life or one
who is likely to be abused or exploited for immoral or illegal
purposes for unconscionable gain is also a juvenile. The crime is
not attached for identifying him/her as neglected juvenile; it is so
in the case of a delinquent juvenile under the Act. They are to be
kept in the juvenile home as a place of safety.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 159
xxx xxx
37. ..........Even, in certain cases a delinquent juvenile who
commits an offence like begging, being the neglected juvenile, is
covered as a neglected juvenile and should not be treated as
delinquent juvenile since he began begging due to destitution or
was forced to beg by organised gangsters. Therefore, all the types of
juveniles defined within the ambit of neglected juvenile, though
attached with certain acts or omission, are punishable under law
they still remain to be neglected juvenile and should be dealt with
by the Welfare Board and he brought within the protective umbrella
of the juvenile home established under Section 9.........
38. Every child who is found to be neglected juvenile should be
dealt by the Board and should be brought within the protective
umbrella of the juvenile home. The attribution as 'neglected
children' is not social stigma; the purpose is to identify the
children as juveniles to be dealt with under the JJ Act which is
more a reformative and rehabilitated center rather than for
punishing the child as criminal; and mend their behavior and
conduct. ...............The definition of 'neglected juvenile',
therefore, should be interpreted broadly which is an important
function for the purpose of identifying the groups of children
who need care and attention and protection for rehabilitation.
Their withdrawal from the protective umbrella of the JJ Act foils
the goals set out; besides all measures to bring the neglected
juvenile into the mainstream of the social status end up in failure
and frustration.
39. Even if the economic capacity of the mother of neglected
juvenile in the red light area to educate and to bring him up would
not relieve the child from social trauma: it would always be adverse
to keep the neglected juvenile in the custody of the mother or the
manager of the brothel; thus, the child prostitute is unsafe and
insecure. So, they should be rescued, cared for and rehabilitated. As
stated earlier, the three C's, namely, counselling, cajoling and
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 160
coercion of the fallen women to part with the child or child
prostitute herself from the manager of the brothel is more effective,
efficacious and meaningful method to rescue the child prostitute or
the neglected juvenile. The income criteria, therefore, is not a factor
not to rescue the child prostitute or the neglected juvenile for
rehabilitation.
40. It is of necessity to remember that the arms of law are long
enough to mould the law to operate on the even keel. The coercive
power with the law enforcement agency to rescue the child
prostitute or the neglected juvenile, may not necessarily end up as a
successful means. It would be last resort when all avenues fail. On
the other hand, involvement of the nongovernmental organisations
in particular women organisations which are more resourceful for
counselling and cautioning, would make deep dent into the thinking
mould of the fallen victims and would be a source of success for
their retrieval from the prostitution or sending the neglected
juvenile to the juvenile homes for initial treatment, psychologically
and mentally, and will yield place to voluntaries to surrender
guardianship of the child prostitute or neglected juvenile to the
Welfare Board or to the NGOs to take custody of a child prostitute
or the neglected juvenile for, care, protection and rehabilitation.‖
(Emphasis supplied)
223. We find endorsement of this spirit in the Juvenile Justice legislation and
specifically recognized fundamental principles enumerated in Rule 3 of the
Juvenile Justice (Care & Protection) Rules, 2007.
224. The fundamental principles contained in the JJ Rules are required to be
abided by. They guide the application, interpretation and implementation of
the statute by the State Government, JJB, CWC as well as the competent
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 161
authority and agencies. These are premised on the presumption of the
innocence of the child.
225. Rule 3(2)I(a) of the JJ Rules unequivocally declares the fundamental
principle that a child is to be presumed to be innocent of any malafide or
criminal intent up to the age of eighteen years. Rule 3(2)I(b) mandates that a
child's right to presumption of innocence shall be respected throughout the
process of justice. Any unlawful conduct of a juvenile or a child or a juvenile
in conflict with law which is done for survival or is due to environmental or
situational factors or is done under control of adults, or peer groups, ought to
be covered by the principles of innocence [Rule 3(2)(Ic)].
226. Under Rule 3(2)I(d)(i) the age of innocence is indicated as the age
below which a juvenile or child or a juvenile in conflict with law cannot be
subjected to the criminal justice system.
227. The JJ Rules, 2007 also statutorily recognise the principle of family
responsibility. [Rule 3(2)(V)]. It is stated that the primary responsibility of
bringing up children, providing care, support and protection shall be with the
biological parents. Of course, an exception to this situation is provided when
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 162
responsibility for the care of the child may be bestowed on willing adoptive or
foster parents.
228. The inevitable and only answer to the second question formulated
earlier in this judgment is that a person under eighteen years of age who is
recovered in police action under Sections 15 and 16 of the IT Act, has to be
treated as a ‗child in need of care and protection' within the meaning of the
expression under the JJ Act 2000. Such person shall not be treated as a
‗juvenile in conflict with law'.
Conclusions
(i) A child is incapable of giving consent and any sexual behavior or
activity involving a child renders the participating adult open to
stringent penal action under several enactments. No penal liability
vests on the child for the same.
(ii) A bare reading of the statutory provisions, International Conventions &
Treaties as well as the available jurisprudence manifests the statutory
intendment that such child (i.e. a child found begging is a street child, a
working child or a child being or likely to be grossly abused, tortured,
or exploited for the purpose of sexual abuse or illegal acts as well as a
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 163
child who is found vulnerable and likely to be inducted into drug abuse
or trafficking) is not to be treated as an offender but is only to be treated
as a victim hence as a ‗child in need of care and protection' within the
meaning of the expression under the JJ Act.
(iii) A person under the age of eighteen years, if found involved in any
aspect of trafficking or prostitution, within the meaning of the
expression in the IT Act, 1956, or is rescued in police action under
Section 15/16 of the IT Act cannot be treated as a ‗juvenile in conflict
with law' as defined Section 2(l) and has to be treated as a ‗child in
need of care and protection' as defined under section2(d) of the JJ Act,
2000.
(iv) Notwithstanding the provisions of Section 17 and 17(A) of the Immoral
Traffic (Prevention) Act, 1956 by virtue of Section 31(1) and 39(3) of
the Juvenile Justice (Care and Protection of Children) Act, 2000, it is
only the Child Welfare Committee constituted under Section 29 of the
enactment which has the final authority in respect of the custody and
restoration of a child victim - a child in need of care and protection.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 164
(v) If a person rescued by the police under the IT Act, 1956 and produced
before the Magistrate appears to be under 18 years of age, such person
must forthwith be transferred to the Child Welfare Committee which
shall proceed in the matter in accordance with the provisions of
Sections 30, 31, 33 and other relevant provisions. If the child is found
to be hailing from a place outside the jurisdiction of the Committee, the
Committee shall ensure compliance with the provision of Section 38 of
the JJ Act, 2000.
Result
The inevitable result of the forgoing discussion is that it has to be held
that the order dated 10th August, 2009 passed by the learned Metropolitan
Magistrate is held to be contrary to law and is hereby set aside and quashed. I
am informed that pursuant to the orders passed by this court, the Child
Welfare Committee has proceeded in the mater in accordance with the
provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000
and therefore, no further orders are required to be passed.
I would also like to place on record my appreciation for the valuable
assistance rendered by Mr. Sandeep Sethi, Senior Advocate, Mr. V.
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 165
Madhukar, learned counsel for the appellant and Mr. Manoj Ohri, APP for the
State in the present matter.
This revision petition and application are disposed of in the above
terms.
(GITA MITTAL)
JUDGE
AUGUST 12, 2014
kr/mk
Crl Rev.No.443/2009 & Crl.M.A.No.3071/2010 166
