Punjab-Haryana High Court
National Investigation Agency vs Amritpal Singh @ Amrit on 26 July, 2022
CRM-M-19293-2021 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-19293-2021 (O&M)
Date of Decision: 26.07.2022
National Investigation Agency
....Petitioner(s)
Versus
Amritpal Singh @ Amrit Singh
.....Respondent(s)
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. Sukhdeep Singh Sandhu, Advocate, for the petitioner.
Mr. Bhanu Pratap Singh, Advocate, for the respondent.
****
JASGURPREET SINGH PURI, J.
1. The present is a petition filed under Section 407 read with
Section 482 of the Code of Criminal Procedure seeking transfer of trial in
case No. RC-20/2019/NIA/DLI dated 23.09.2019, FIR No. 280 dated
05.09.2019, under Sections 120-B/153-A IPC, Section 13/18/18A/18B/20/23
of Unlawful Activities (Prevention) Act, 1967 and Sections 3, 4 & 5 of
Explosive Substances Act, 1908, Police Station Sadar, Tarn Taran, District
Tarn Taran, which is pending before the Court of learned Additional
Sessions Judge/Children's Court, Tarn Taran.
2. The Courts of all the Sessions Judges and Additional Sessions
Judges at each district headquarter in the State of Punjab (except the
Additional Sessions Judges (Adhoc), Fast Track Courts) have been
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designated as Children's Court in exercise of powers conferred by Section
25 of the Commissions for Protection of Child Rights Act, 2005, vide
notification dated 10th September, 2013 issued by the Department of Home
Affairs and Justice, Punjab.
Facts of the case
3. One FIR No.280 dated 05.09.2019 was registered under Section
304 IPC and Sections 4 and 5 of Explosive Substances Act, 1908 at Police
Station Sadar, Tarn Taran on the basis of information received by the police
party who were present at Kad Gill Chowk, Bagarian at about 19:45 hours
that a powerful explosion took place at a vacant plot in the outskirts of
Village Pandori Gola, Police Station Sadar Tarn Taran, Punjab while
deceased accused Bikkar Singh @ Vikram @ Vicky, Harpreet Singh @
Happy and Gurjant Singh were digging a pit to retrieve explosives which
were buried in the said plot. It was due to the impact of digging tools on
explosives contained in a plastic container that the explosion had taken place
which resulted in the death of Bikkar Singh and Harpreet Singh who died
on the spot whereas the other co-accused Gurjant Singh was seriously
injured and lost vision of both eyes. The aforesaid injured Gurjant Singh
was admitted in Guru Nanak Dev Hospital by other co-accused Harjeet
Singh @ Harjit whose house is located near the place of incident and
allegedly he had provided spade (Kai) for digging out the explosives.
Thereafter, the National Investigation Agency (hereinafter referred to as
'NIA') re-registered the case as RC-20/2019/NIA/DLI in compliance of the
orders received vide F.No.110-11/47/2019/NIA dated 20.09.2019 from the
Ministry of Home Affairs, Government of India and took up the
investigation of the case. During the investigation by the NIA, the present
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respondent who was a juvenile at that time was nominated on the ground
that he was also associated with the other co-accused and they had
performed a gang. As per the allegations, the respondent and the other co-
accused and they had formed a gang came into contact with each other in
the year 2015 during protest organized by them against sacrilege incident of
Shri Guru Granth Sahib Ji and formed a terrorist gang due to similar
religious thoughts and thereafter they started meeting at Amritsar and Tarn
Taran. They were allegedly planning to carry out violent acts against the
members of a particular community and, therefore, they procured explosive
materials and training was given by one of the members of the gang for
making bombs. They had planned to target Dera of Divya Jyoti Jagran
Sanstha founded by Ashutosh Maharaj in the night hours of 04.09.2019. As
per investigation, the respondent was also related with one of the co-accused
and he came into contact with the other co-accused during participation in
various agitations and protests and had also conspired with the other co-
accused for planning to carry out terrorist attacks by causing explosion. As
per the allegations, the respondent alongwith co-accused was also nursing
intent to spread disharmony to de-stablize the Security, Integrity, Unity and
Sovereignty of India and was part of the conspiracy to target Muradpura
Dera (DJJS, Tarn Taran).
4. On the day of aforesaid incident i.e. 04.09.2019 the respondent
was a juvenile as he was less than 18 years. The date of birth of the
respondent is 15.09.2001 and was a few days short of attaining the age of 18
years. In view of the fact that the respondent was a juvenile, his preliminary
assessment was conducted by the Juvenile Justice Board under the Juvenile
Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to
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as 'JJ Act, 2015'). On the basis of aforesaid assessment by considering
various parameters as provided under the JJ Act as well as considering the
Social Investigation Report and the Social Background Report, the Juvenile
Justice Board, Tarn Taran came to the conclusion that the respondent was
capable of understanding the consequences of offence and the circumstances
in which he allegedly committed the same and therefore, there was a need
for trial of the respondent as an adult and as a natural corollary, the trial of
the case of the respondent being juvenile was ordered to be transferred to the
learned Children's Court/learned Sessions Judge, Tarn Taran as per the
statutory provisions of Section 18(3) of the JJ Act, 2015. He was therefore
directed to appear before the learned Sessions Judge, Tarn Taran on
07.01.2021. The fact that respondent was juvenile at the time of incident and
the order by which he was directed to be tried as an adult is not in dispute in
the present case.
5. Thereafter, the learned Additional Sessions Judge, Tarn Taran
/Children's Court framed the charges against the respondent vide Annexure
P-5 on 02.02.2021. The charges were framed under Sections 120-B,153-A
IPC and Sections 18 and 20 of Unlawful Activities (Prevention) Act, 1967.
Thereafter, the present petition was filed by the NIA seeking transfer of the
case to the NIA Special Court, Mohali. The constitution of the NIA Special
Court at Mohali had been notified by the Central Government on 20th
September, 2019 vide Annexure P-4 in exercise of powers conferred by
Section 11 of the National Investigation Agency Act, 2008. As per the
learned counsel for the parties, after the framing of the charges by the
learned Children's Court further trial of the case has not commenced as yet
and trial of the co-accused who were not juveniles is being conducted
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before the NIA Special Court, Mohali.
Submissions made by counsel for the petitioner
6. The learned counsel for the petitioner submitted that the
Children's Court does not have jurisdiction to try the present case and,
therefore, the trial should be transferred to the Special Court constituted
under the NIA Act. The following arguments were raised by the learned
counsel for the petitioner:-
(i) The National Investigation Agency Act, 2008 is a special
legislation and under Section 11, the powers are vested with
the Central Government to designate the Courts of Session as
Special Court in consultation with the Chief Justice of the
High Court by way of a notification in the official gazette for
the trial of scheduled offences and in pursuance of the
aforesaid provisions, the Central Government has already
notified NIA Court at Mohali vide Annexure P-4 dated
20.09.2019. Section 13 provides for a non- obstante clause
whereby it has been provided that notwithstanding anything
contained in the Code, every scheduled offence investigated
by the Agency shall be tried only by the Special Court within
whose local jurisdiction it was committed. As per the
schedule of the NIA Act, there is a specific insertion of 'The
Unlawful Activities (Prevention) Act, 1967' (hereinafter
referred to as 'UAPA Act') at serial No.2 . In this way, every
offence under the UAPA Act can be tried only by the Special
Courts constituted under the NIA Act and by no other Court.
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(ii) The Children's Court constituted under the Commissions for
Protection of Child Rights Act, 2005 has a jurisdiction to try
an offence pertaining to a juvenile when being tried as an
adult but when the offence falls under the UAPA Act, the
jurisdiction shall vest in the Special Court constituted under
the NIA Act and, therefore, the present case was required to
be transferred from Children's Court to Special Court
constituted under the NIA Act.
(iii) No prejudice will be caused to the respondent who even
though was a juvenile at the time of commission of offence in
case the trial is transferred to the Special Court constituted
under the NIA Act since both the Courts provide speedy
trial and rather under Section 19 of the NIA Act it has been so
provided that the trial by a Special Court will have
precedence and the Special Court shall hold the trial on day-
to-day basis.
(iv) Section 2(20) of the JJ Act defines 'Children's Court'
to mean a Court established under the Commissions for
Protection of Child Rights Act, 2005. As per this provision,
the Children's Court can be either under the
Commissions for Protection of Child Rights Act, 2005 or a
Special Court under the Protection of Children from Sexual
Offences Act, 2012 and where such Courts have not been
designated, then the Sessions Court will have the jurisdiction
to try the offences under the Act. Under the NIA Act also the
Sessions Court has been designated as Special Court. Since
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under both the legislations it is the Sessions Judge/Additional
Sessions Judge who has been designated as Special Court,
no prejudice would be caused to the respondent in case the
same is tried by the Court of NIA.
(v) Section 16(3) of the NIA Act provides that subject to the
other provisions of this Act, a Special Court shall for the
purpose of trial of any offence have all the powers of a Court
of Sessions and shall try such offence as if it were a Court of
Session so far as may be in accordance with the procedure
prescribed in the Code for the trial before a Court of Session.
The expression 'Code' has been defined to be Code of
Criminal Procedure, 1973. Therefore, once the Special Court
already has powers of the Court of Sessions and it is to try an
offence as a Court of Sessions, then there would be no
difference in case the present case is tried by the Special
Court under the NIA Act and not by the Children's
Court/Sessions Court under the JJ Act, 2015.
(vi) The respondent although was a juvenile at the time of
commission of offence but he will be attaining the age of 21
years on 15.09.2022. The benefit of not sending him to jail
is provided for the age of less than 21 years which will no
longer be available to him. Such like benefits would not
be available to the respondent in this regard after he attains
the age of 21 years. Section 17 of the NIA Act provides for
protection of witnesses and in it various types of protections
have been provided to the witnesses which would not be
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available to the witnesses in case the trial is held by the
Children's Court.
(vii) The scheduled offences under the NIA Act are serious in
nature which involves national security, interest and
sovereignty of the State and in order to deal with such
serious situation, a special procedure has been laid
down under the NIA Act. The present case also falls under
this category of serious and heinous offence regarding which
the trial should be conducted by a Special Court constituted
under the NIA Act.
(viii) Under Section 21(2) of the NIA Act, every appeal shall be
heard by a Bench of two Judges of the High Court whereas
an appeal from the judgment/order passed by the learned
Children's Court under the JJ Act, 2015 shall be heard by a
learned single Judge of the High Court.
(ix) Reliance has been placed upon a judgment of Hon'ble
Supreme Court in Naser Bin Abu Bakr Yafai Versus State of
Maharashtra and another [2021 (4) RCR (Criminal) 533] to
contend that once NIA takes over the investigation, then
Special Court designated under Section 11 of the NIA Act
would have sole jurisdiction to try a case. Further reliance has
been placed upon a judgment of this Court in Master Bholu
Versus State of Haryana and another [2020(3) RCR
(Criminal) 160] to contend that in such like serious cases, the
juvenile should be treated as an adult for the purpose of trial
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for deciding bail application.
Submissions made by counsel
for the respondent
7. The learned counsel for the respondent submitted that the
impugned order by which learned Juvenile Justice Board, Tarn Taran has
transferred the trial to the Children's Court was in accordance with law and
once it has been decided by the learned Juvenile Justice Board that the
juvenile is to be tried as an adult, then there is no other alternative but to
transfer the trial of the case to the learned Children's Court as per the
statutory provisions whereby only a Children's Court has exclusive
jurisdiction to try such an offence. He has also made the following
submissions:-
(i) Section 18(3) of the JJ Act, 2015 provides that where the
Board after preliminary assessment under Section 15 passes
an order that there is a need for trial of a child as an adult,
then the Board may order transfer of the trial of the case to the
Children's Court having jurisdiction to try such offences.
Therefore, the jurisdiction has been vested to the Children's
Court by virtue of Section 18(3) and, therefore, no other Court
/Special Court can have jurisdiction in this regard.
(ii) Section 1(4) of the JJ Act, 2015 provides for a non-obstante
clause by providing that this Act shall apply to all the matters
concerning children in need of care and protection and
children in conflict with law including apprehension,
detention, prosecution, penalty or imprisonment,
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rehabilitation and social re-integration of children in conflict
with law and also procedure and decisions or orders relating
to rehabilitation, adoption, re-integration, and restoration of
children in need of care and protection. The JJ Act, 2015 has
come into force w.e.f. 15.01.2016 and Section 1(4) therefore
overrides any other legislation apart from the fact that it is
also not only a special legislation but also later in point of
time and, therefore, jurisdiction would vest only in the
Children's Court and in no other Court.
(iii) Section 3 of the JJ Act, 2015 provides for general principles
to be followed in the administration of the Act and various
safeguards have been provided to the juveniles.
(iv) Section 8(3) of the JJ Act, 2015 deals with the functions of
the Board and provides for a number of safeguards to the
juveniles. Section 21 of the Act provides that no child in
conflict with law shall be sentenced to death or for life
imprisonment without the possibility of release, for any such
offence either under the provisions of this Act or under the
provisions of the IPC or any other law for the time being in
force. Therefore, this provision also overrides any other
legislation regarding the quantum of punishment. Section 23
of the Act is another non-obstante clause which provides that
there shall be no joint proceedings of a child alleged to be in
conflict with law, with a person who is not a child and this
provision has overriding effect upon the Code of Criminal
Procedure or any other law for the time being in force.
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Therefore, transferring the trial to some other Court would
amount to deprivation of various Statutory rights available to
the respondent who is a child in conflict with law.
(v) Right of appeal against the orders passed by the Special Judge
under the NIA Act and also by the Children's Court is
available in both the statutes and an appeal would lie before
the High Court. The mere fact that against the orders passed
by the Special Judge under the NIA Act, an appeal would lie
to a Division Bench of the High Court whereas under the
Children's Court it would lie before a learned single Judge
cannot become a ground for conferring of jurisdiction to a
Special Judge under the NIA Act especially by taking away
the Statutory rights and privileges available under the JJ Act,
2015.
(vi) Reliance has been placed upon a judgment of the Hon'ble
Supreme Court in Solidaire India Ltd. Versus Fairgrowth
Financial services [AIR 2001 SCC 958] to contend that when
there is conflict between the Special Acts, then the later Act
will prevail.
Issue involved in the petition
8. The core issue involved in the present petition pertains to
jurisdiction of Court and the said issue can be crystallised as follows:-
"When an FIR has been registered under a Scheduled Act
prescribed under NIA Act, 2008, then whether a juvenile
who has been directed to be tried as an adult be tried by
the Children's Court established under the Commissions
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for Protection of Child Rights Act, 2005 or under the NIA
Act, 2008 by a Special Judge designated under the
provisions of NIA Act".
Reference to relevant provisions
9. Before considering the arguments raised by the learned counsel
for the parties it would be necessary to reproduce the relevant legislative
provisions since the present issue involves not only interpretation of statutes
qua interplay of different statutes but also the question of jurisdiction of
Court.
The Juvenile Justice (Care and Protection
of Children) Act, 2015
An Act to consolidate and amend the law relating to children
alleged and found to be in conflict with law and children in need
of care and protection by catering to their basic needs through
proper care, protection, development, treatment, social re-
integration, by adopting a child-friendly approach in the
adjudication and disposal of matters in the best interest of
children and for their rehabilitation through processes provided,
and institutions and bodies established, hereinunder and for
matters connected therewith or incidental thereto.
WHEREAS, the provisions of the Constitution confer powers and
impose duties, under clause (3) of article 15, clauses (e) and (f)
of article 39, article 45 and article 47, on the State to ensure that
all the needs of children are met and that their basic human
rights are fully protected;
AND WHEREAS, the Government of India has acceded on the
11th December, 1992 to the Convention on the Rights of the
Child, adopted by the General Assembly of United Nations,
which has prescribed a set of standards to be adhered to by all
State parties in securing the best interest of the child;
AND WHEREAS, it is expedient to re-enact the Juvenile Justice
(Care and Protection of Children) Act, 2000 (56 of 2000) to
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make comprehensive provisions for children alleged and found
to be in conflict with law and children in need of care and
protection, taking into consideration the standards prescribed in
the Convention on the Rights of the Child, the United Nations
Standard Minimum Rules for the Administration of Juvenile
Justice, 1985 (the Beijing Rules), the United Nations Rules for
the Protection of Juveniles Deprived of their Liberty (1990), the
Hague Convention on Protection of Children and Co-operation
in Respect of Intercountry Adoption (1993), and other related
international instruments.
Section 1(4)
XXX XXX XXX
Notwithstanding anything contained in any other law for the
time being in force, the provisions of this Act shall apply to all
matters concerning children in need of care and protection and
children in conflict with law, including :
(i) apprehension, detention, prosecution, penalty or
imprisonment, rehabilitation and social re-integration of
children in conflict with law;
(ii) procedures and decisions or orders relating to rehabilitation,
adoption, re-integration, and restoration of children in need of
care and protection.
Section 2(12)
"child" means a person who has not completed eighteen years
of age;
Section 2(13)
"child in conflict with law" means a child who is alleged or
found to have committed an offence and who has not completed
eighteen years of age on the date of commission of such offence;
Section 2(20)
"Children's Court" means a court established under the
Commissions for Protection of Child Rights Act, 2005 (4 of
2006) or a Special Court under the Protection of Children from
Sexual Offences Act, 2012 (32 of 2012), wherever existing and
where such courts have not been designated, the Court of
Sessions having jurisdiction to try offences under the Act;
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Section 2(24)
"corporal punishment" means the subjecting of a child by any
person to physical punishment that involves the deliberate
infliction of pain as retribution for an offence, or for the purpose
of disciplining or reforming the child;
Section 2(33)
"heinous offences" includes the offences for which the minimum
punishment under the Indian Penal Code (45 of 1860) or any
other law for the time being in force is imprisonment for seven
years or more;
Section 2(35)
"juvenile" means a child below the age of eighteen years;
Section 2(54)
"serious offences" includes the offences for which the
punishment under the Indian Penal Code (45 of 1860) or any
other law for the time being in force, is imprisonment between
three to seven years;
Section 2(61)
All words and expressions used but not defined in this Act and
defined in other Acts shall have the meanings respectively
assigned to them in those Acts.
Section 3
General principles to be followed in administration of Act-
The Central Government, the State Governments, the Board, and
other agencies, as the case may be, while implementing the
provisions of this Act shall be guided by the following
fundamental principles, namely:
(i) Principle of presumption of innocence: Any child shall be
presumed to be an innocent of any mala fide or criminal intent
up to the age of eighteen years.
(ii) Principle of dignity and worth: All human beings shall be
treated with equal dignity and rights.
(iii) Principle of participation: Every child shall have a right to
be heard and to participate in all processes and decisions
affecting his interest and the child's views shall be taken into
consideration with due regard to the age and maturity of the
child.
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(iv) Principle of best interest: All decisions regarding the child
shall be based on the primary consideration that they are in the
best interest of the child and to help the child to develop full
potential.
(v) Principle of family responsibility: The primary responsibility
of care, nurture and protection of the child shall be that of the
biological family or adoptive or foster parents, as the case may
be.
(vi) Principle of safety: All measures shall be taken to ensure
that the child is safe and is not subjected to any harm, abuse or
maltreatment while in contact with the care and protection
system, and thereafter.
(vii) Positive measures: All resources are to be mobilised
including those of family and community, for promoting the well-
being, facilitating development of identity and providing an
inclusive and enabling environment, to reduce vulnerabilities of
children and the need for intervention under this Act.
(viii) Principle of non-stigmatising semantics: Adversarial or
accusatory words are not to be used in the processes pertaining
to a child.
(ix) Principle of non-waiver of rights: No waiver of any of the
right of the child is permissible or valid, whether sought by the
child or person acting on behalf of the child, or a Board or a
Committee and any non-exercise of a fundamental right shall not
amount to waiver.
(x) Principle of equality and non-discrimination: There shall be
no discrimination against a child on any grounds including sex,
caste, ethnicity, place of birth, disability and equality of access,
opportunity and treatment shall be provided to every child.
(xi) Principle of right to privacy and confidentiality: Every child
shall have a right to protection of his privacy and confidentiality,
by all means and throughout the judicial process.
(xii) Principle of institutionalisation as a measure of last resort:
A child shall be placed in institutional care as a step of last
resort after making a reasonable inquiry.
(xiii) Principle of repatriation and restoration: Every child in
the juvenile justice system shall have the right to be re-united
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with his family at the earliest and to be restored to the same
socio-economic and cultural status that he was in, before coming
under the purview of this Act, unless such restoration and
repatriation is not in his best interest.
(xiv) Principle of fresh start: All past records of any child
under the Juvenile Justice system should be erased except in
special circumstances..
(xv) Principle of diversion: Measures for dealing with children
in conflict with law without resorting to judicial proceedings
shall be promoted unless it is in the best interest of the child or
the society as a whole.
(xvi) Principles of natural justice: Basic procedural standards
of fairness shall be adhered to, including the right to a fair
hearing, rule against bias and the right to review, by all persons
or bodies, acting in a judicial capacity under this Act.
Section 5
Placement of person, who cease to be a child during process of
inquiry.
Where an inquiry has been initiated in respect of any child under
this Act, and during the course of such inquiry, the child
completes the age of eighteen years, then, notwithstanding
anything contained in this Act or in any other law for the time
being in force, the inquiry may be continued by the Board and
orders may be passed in respect of such person as if such person
had continued to be a child.
Section 6
Placement of persons, who committed an offence, when person
was below the age of eighteen years.
(1) Any person, who has completed eighteen years of age, and is
apprehended for committing an offence when he was below the
age of eighteen years, then, such person shall, subject to the
provisions of this section, be treated as a child during the
process of inquiry.
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(2) The person referred to in sub-section (1), if not released on
bail by the Board shall be placed in a place of safety during the
process of inquiry.
(3) The person referred to in sub-section(1) shall be treated as
per the procedure specified under the provisions of this Act.
Section 8
Powers, functions and responsibilities of the Board.
(1) Notwithstanding anything contained in any other law for the
time being in force but save as otherwise expressly provided in
this Act, the Board constituted for any district shall have the
power to deal exclusively with all the proceedings under this
Act, relating to children in conflict with law, in the area of
jurisdiction of such Board.
(2) The powers conferred on the Board by or under this Act may
also be exercised by the High Court and the Children's Court,
when the proceedings come before them under section 19 or in
appeal, revision or otherwise.
(3) The functions and responsibilities of the Board shall include:
(a) ensuring the informed participation of the child and the
parent or guardian, in every step of the process;
(b) ensuring that the child's rights are protected throughout the
process of apprehending the child, inquiry, aftercare and
rehabilitation;
(c) ensuring availability of legal aid for the child through the
legal services institutions.
(d) wherever necessary the Board shall provide an interpreter
or translator, having such qualifications, experience, and on
payment of such fees as may be prescribed, to the child if he fails
to understand the language used in the proceedings;
(e) directing the Probation Officer, or in case a Probation
Officer is not available to the Child Welfare Officer or a social
worker, to undertake a social investigation into the case and
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submit a social investigation report within a period of fifteen
days from the date of first production before the Board to
ascertain the circumstances in which the alleged offence was
committed;
(f) adjudicate and dispose of cases of children in conflict with
law in accordance with the process of inquiry specified in
section 14;
(g) transferring to the Committee, matters concerning the child
alleged to be in conflict with law, stated to be in need of care
and protection at any stage, thereby recognising that a child in
conflict with law can also be a child in need of care
simultaneously and there is a need for the Committee and the
Board to be both involved;
(h) disposing of the matter and passing a final order that
includes an individual care plan for the childs rehabilitation,
including follow up by the Probation Officer or the District
Child Protection Unit or a member of a non-governmental
organisation, as may be required;
(i) conducting inquiry for declaring fit persons regarding care of
children in conflict with law;
(j) conducting at least one inspection visit every month of
residential facilities for children in conflict with law and
recommend action for improvement in quality of services to the
District Child Protection Unit and the State Government;
(k) order the police for registration of first information report for
offences committed against any child in conflict with law, under
this Act or any other law for the time being in force, on a
complaint made in this regard;
(l) order the police for registration of first information report for
offences committed against any child in need of care and
protection, under this Act or any other law for the time being in
force, on a written complaint by a Committee in this regard;
(m) conducting regular inspection of jails meant for adults to
check if any child is lodged in such jails and take immediate
measures for transfer of such a child to the observation home;
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and
(n) any other function as may be prescribed.
Section 18(3)
XXX XXX XXX
Where the Board after preliminary assessment under section 15
pass an order that there is a need for trial of the said child as an
adult, then the Board may order transfer of the trial of the case
to the Children's Court having jurisdiction to try such offences.
Section 19
Powers of Children's Court.
(1) After the receipt of preliminary assessment from the Board
under section 15, the Children's Court may decide that:
(i) there is a need for trial of the child as an adult as per the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974)
and pass appropriate orders after trial subject to the provisions
of this section and section 21, considering the special needs of
the child, the tenets of fair trial and maintaining a child friendly
atmosphere;
(ii) there is no need for trial of the child as an adult and may
conduct an inquiry as a Board and pass appropriate orders in
accordance with the provisions of section 18.
(2) The Children's Court shall ensure that the final order, with
regard to a child in conflict with law, shall include an individual
care plan for the rehabilitation of child, including follow up by
the probation officer or the District Child Protection Unit or a
social worker.
(3) The Children's Court shall ensure that the child who is found
to be in conflict with law is sent to a place of safety till he attains
the age of twenty-one years and thereafter, the person shall be
transferred to a jail:
Provided that the reformative services including educational
services, skill development, alternative therapy such as
counselling, behaviour modification therapy, and psychiatric
support shall be provided to the child during the period of his
stay in the place of safety.
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(4) The Children's Court shall ensure that there is a periodic
follow up report every year by the probation officer or the
District Child Protection Unit or a social worker, as required, to
evaluate the progress of the child in the place of safety and to
ensure that there is no ill-treatment to the child in any form.
(5) The reports under sub-section (4) shall be forwarded to the
Children's Court for record and follow up, as may be required.
Section 21
Order that may not be passed against a child in conflict with
law.
No child in conflict with law shall be sentenced to death or for
life imprisonment without the possibility of release, for any such
offence, either under the provisions of this Act or under the
provisions of the Indian Penal Code (45 of 1860) or any other
law for the time being in force.
Section 23
No joint proceedings of child in conflict with law and person
not a child.
(1) Notwithstanding anything contained in section 223 of the
Code of Criminal Procedure, 1973 (2 of 1974) or in any other
law for the time being in force, there shall be no joint
proceedings of a child alleged to be in conflict with law, with a
person who is not a child.
(2) If during the inquiry by the Board or by the Children's Court,
the person alleged to be in conflict with law is found that he is
not a child, such person shall not be tried along with a child.
Section 39 (2)
XXX XXX XXX
For children in conflict with law the process of rehabilitation
and social integration shall be undertaken in the observation
homes, if the child is not released on bail or in special homes or
place of safety or fit facility or with a fit person, if placed there
by the order of the Board.
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Section 101 (5)
XXX XXX XXX
Any person aggrieved by an order of the Children's Court may
file an appeal before the High Court in accordance with the
procedure specified in the Code of Criminal Procedure, 1973 (2
of 1974).
The National Investigation Agency
Act, 2008
An Act to constitute an investigation agency at the national level
to investigate and prosecute offences affecting the sovereignty,
security and integrity of India, security of State, friendly relations
with foreign States and offences under Acts enacted to implement
international treaties, agreements, conventions and resolutions of
the United Nations, its agencies and other international
organisations and for matters connected therewith or incidental
thereto.
Section 1
Short title, extent and application.--(1) This Act may be called
the National Investigation Agency Act, 2008.
(2) It extends to the whole of India and it applies also
(a) to citizens of India outside India;
(b) to persons in the service of the Government wherever they may
be;
(c) to persons on ships and aircrafts registered in India wherever
they may be; [and]
(d) to persons who commit a Scheduled Offence beyond India
against the Indian citizens or affecting the interest of India.
Section 2 (b)
"Code" means the Code of Criminal Procedure 1973 (2 of 1974).
Section 2(g)
"Scheduled Offence" means an offence specified in the Schedule.
Section 2(h)
"Special Court" means [a Court of Session designated as
Special Court] under section 11 or, as the case may be, under
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section 22.
Section 11
Power of Central Government to [designate Court of Session
as] Special Courts:
(1) [The Central Government shall, in consultation with the
Chief Justice of the High Court, by notification in the Official
Gazette, for the trial of Scheduled Offences, designate one or
more Courts of Session as Special Court] for such area or
areas, or for such case or class or group of cases, as may be
specified in the notification.
[Explanation- For the purpose of this sub-section, the expression
"High Court" means the High Court of the State in which a
Court of Sessions to be designated as Special Court is
functioning.]
(2) Where any question arises as to the jurisdiction of any
Special Court, it shall be referred to the Central Government
whose decision in the matter shall be final.
[****]
(8) For the removal of doubts, it is hereby provided that the
attainment [by the Sessions Judge of the Court of Session
referred to in sub-section (1)] of the age of superannuation
under the rules applicable to him in the service to which he
belongs shall not affect his continuance as [Judge of the Special
Court and the appointing authority in consultation with the
Central Government] may by order direct that he shall continue
as Judge until a specified date or until completion of the trial of
the case or cases before him [whichever is earlier].
(9) When more than one Special Court is designated for an
area or areas, the senior most Judge shall distribute the
business among them.
Section 13
Jurisdiction of Special Courts:
(1) Notwithstanding anything contained in the Code, every
Scheduled Offence investigated by the Agency shall be tried only
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by the Special Court within whose local jurisdiction it was
committed.
(2) If, having regard to the exigencies of the situation prevailing
in a State if,--
(a) it is not possible to have a fair, impartial or speedy trial; or
(b) it is not feasible to have the trial without occasioning the
breach of peace or grave risk to the safety of the accused, the
witnesses, the Public Prosecutor or a judge of the Special Court
or any of them; or
(c) it is not otherwise in the interests of justice,
the Supreme Court may transfer any case pending before a
Special Court to any other Special Court within that State or in
any other State and the High Court may transfer any case
pending before a Special Court situated in that State to any other
Special Court within the State.
(3) The Supreme Court or the High Court, as the case may be,
may act under this section either on the application of the
Central Government or a party interested and any such
application shall be made by motion, which shall, except when
the applicant is the Attorney-General for India, be supported by
an affidavit or affirmation.
Section 16(3)
XXX XXX XXX
Subject to the other provisions of this Act, a Special Court shall,
for the purpose of trial of any offence, have all the powers of a
Court of Session and shall try such offence as if it were a Court
of Session so far as may be in accordance with the procedure
prescribed in the Code for the trial before a Court of Session.
Section 17
Protection of witnesses:
(1) Notwithstanding anything contained in the Code, the
proceedings under this Act may, for reasons to be recorded in
writing, be held in camera if the Special Court so desires.
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(2) On an application made by a witness in any proceeding
before it or by the Public Prosecutor in relation to such witness
or on its own motion, if the Special Court is satisfied that the life
of such witness is in danger, it may, for reasons to be recorded in
writing, take such measures as it deems fit for keeping the
identity and address of such witness secret.
(3) In particular, and without prejudice to the generality of the
provisions of sub-section (2), the measures which a Special
Court may take under that sub-section may include--
(a) the holding of the proceedings at a place to be decided by the
Special Court;
(b) the avoiding of the mention of the names and addresses of
the witnesses in its orders or judgments or in any records of the
case accessible to public;
(c) the issuing of any directions for securing that the identity
and address of the witnesses are not disclosed; and
(d) a decision that it is in the public interest to order that all or
any of the proceedings pending before such a Court shall not be
published in any manner.
(4) Any person who contravenes any decision or direction issued
under sub-section (3) shall be punishable with imprisonment for
a term which may extend to three years and with fine which may
extend to one thousand rupees.
Section 21(2)
XXX XXX XXX
Every appeal under sub-section (1) shall be heard by a bench of
two Judges of the High Court and shall, as far as possible, be
disposed of within a period of three months from the date of
admission of the appeal.
The Schedule
XXX XXX XXX
2. The Unlawful Activities (Prevention) Act, 1967 ( 37 of 1967)
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The Commissions for Protection of Child
Rights Act, 2005
An Act to provide for the constitution of a National Commission
and State Commissions for Protection of Child Rights and
Children's Courts for providing speedy trial of offences against
children or of violation of child rights and for matters connected
therewith or incidental thereto.
WHEREAS India participated in the United Nations (UN)
General Assembly Summit in 1990, which adopted a Declaration
on Survival, Protection and Development of Children;
AND WHEREAS India has also acceded to the Convention on
the Rights of the Child (CRC) on the 11th December, 1992;
AND WHEREAS CRC is an international treaty that makes it
incumbent upon the signatory States to take all necessary steps
to protect children's rights enumerated in the Convention;
AND WHEREAS in order to ensure protection of rights of
children one of the recent initiatives that the Government have
taken for Children is the adoption of National Charter for
Children, 2003;
AND WHEREAS the UN General Assembly Special Session on
Children held in May, 2002 adopted an Outcome Document
titled "A World Fit for Children" containing the goals,
objectives, strategies and activities to be undertaken by the
member countries for the current decade;
AND WHEREAS it is expedient to enact a law relating to
children to give effect to the policies adopted by the Government
in this regard, standards prescribed in the CRC, and all other
relevant international instruments;
Section 2(b)
XXX XXX XXX
"child rights" includes the children's rights adopted in the
United Nations convention on the Rights of the Child on the 20th
November, 1989 and ratified by the Government of India on the
11th December, 1992;
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Section 25
Children's Courts.--For the purpose of providing speedy trial of
offences against children or of violation of child rights, the State
Government may, with the concurrence of the Chief Justice of
the High Court, by notification, specify at least a court in the
State or specify, for each district, a Court of Session to be a
Children's Court to try the said offences:
Provided that nothing in this section shall apply if--
(a) a Court of Session is already specified as a special court; or
(b) a special court is already constituted,
for such offences under any other law for the time being in force
Scope of Juvenile Justice Act
10. The legislative action for providing protection to children had
always been very dynamic and progressive. During the period of last three
decades, three legislations pertaining to juveniles were enacted by the
Parliament in succession. Juvenile Justice Act, 1986 was repealed by the
Juvenile Justice Act, 2000 which came into force w.e.f. 01.04.2001 and
thereafter, the Juvenile Justice Act, 2000 was repealed by the Juvenile
Justice (Care & Protection) Act, 2015 which came into force w.e.f.
15.01.2016. The legislature in its wisdom substituted new comprehensive
legislations in order to augment the care, protection and need of the juveniles
since the legislations were beneficial legislations apart from being self-
contained Codes. A Constitution Bench of Hon'ble Supreme Court in
Partap Singh Versus State of Jharkhand and another [2005(3) SCC 551]
dealt with the scope of Juvenile Justice Act, 1986 and 2000. The issue
involved was as to whether the date of occurrence will be reckoning
date for determining the age of the alleged offender as juvenile offender or
the date when he is produced before the Court/competent authority and
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whether the Act of 2000 will be applicable in case a proceeding was
initiated under Act of 1986 and pending when the Act of 2000 was
enforced with effect from 01.04.2001. The preamble as well as statement of
objects and reasons were discussed and it was observed that the whole
object of the Act is to provide for care, protection, treatment, development
and rehabilitation of neglected or delinquent juveniles. It is a beneficial
legislation aimed at to make available the benefit of the Act to the neglected
or delinquent juveniles and that it was a settled law that interpretation of
the statute of a beneficial legislation must be to advance the cause of
legislation to the benefit for whom it is made and not to frustrate the
intendment of the legislation. The objects of juvenile justice legislations
were discussed and it was observed that the purpose of a juvenile justice
legislation is to provide succour to the children who were being
incarcerated along with adults and were subject to various abuses. The
Hon'ble Supreme Court observed that Juvenile Justice Act is not only a
beneficent legislation but also a remedial one. The term 'Juvenile' must be
given a definite connotation. A person cannot be a juvenile for one purpose
and an adult for other purpose. The Courts lean strongly against any
construction which tends to reduce a statute to a futility. The relevant
portion of the aforesaid judgment is reproduced as under:-
8. Thus, the whole object of the Act is to provide for the
care, protection, treatment, development and rehabilitation
of neglected delinquent juveniles. It is a beneficial
legislation aimed at to make available the benefit of the Act
to the neglected or delinquent juveniles. It is settled law that
the interpretation of the Statute of beneficial legislation
must be to advance the cause of legislation to the benefit
for whom it is made and not to frustrate the intendment of
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the legislation.
(emphasis supplied)
21. As stated hereinabove the whole object of the Acts is to
provide for the care, protection, treatment, development and
rehabilitation of juveniles. The Acts being benevolent
legislations, an interpretation must be given which would
advance the cause of the legislation i.e. to give benefit to
the juveniles.
(emphasis supplied)
43. The purpose of the juvenile justice legislation is to
provide succour to the children who were being
incarcerated along with adults and were subjected to
various abuses. It would be in the fitness of things that
appreciation of the very object and purpose of the
legislation is seen with a clear understanding which sought
to bring relief to juvenile delinquents.
44.The problem of juvenile justice is, no doubt, one of tragic
human interest so much so in fact that it is not confined to
this country alone but cuts across national boundaries. In
1966 at the Second United Nations Congress on the
Prevention of Crime and Treatment of Offenders at London
this issue was discussed and several therapeutic
recommendations were adopted. To bring the operations of
the juvenile justice system in the country in conformity with
the UN Standard Minimum Rules for the Administration of
Juvenile Justice, the Juvenile Justice Act came into existence
in 1986. A review of the working of the then existing Acts
both State and parliamentary would indicate that much
greater attention was found necessary to be given to
children who may be found in situations of social
maladjustment, delinquency or neglect. The justice system as
available for adults could not be considered suitable for
being applied to juveniles. There is also need for larger
involvement of informal system and community-based
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welfare agencies in the care, protection, treatment,
development and rehabilitation of such juveniles.
70. This argument cannot be accepted for more than one
reason. The said Act is not only a beneficent legislation,
but also a remedial one. The Act aims at grant of care,
protection and rehabilitation of a juvenile vis-à-vis the adult
criminals. Having regard to Rule 4 of the United Nations
Standard Minimum Rules for the Administration of Juvenile
Justice, it must also be borne in mind that the moral and
psychological components of criminal responsibility were
also one of the factors in defining a juvenile. The first
objective, therefore, is the promotion of the well-being of the
juvenile and the second objective to bring about the
principle of proportionality whereby and whereunder the
proportionality of the reaction to the circumstances of both
the offender and the offence including the victim should be
safeguarded. In essence, Rule 5 calls for no less and no
more than a fair reaction in any given case of juvenile
delinquency and crime. The meaning of the expression
"juvenile" used in a statute by reason of its very nature has
to be assigned with reference to a definite date. The term
"juvenile" must be given a definite connotation. A person
cannot be a juvenile for one purpose and an adult for other
purpose. It was, having regard to the constitutional and
statutory scheme, not necessary for Parliament to
specifically state that the age of juvenile must be determined
as on the date of commission of the offence. The same is
inbuilt in the statutory scheme. The statute must be
construed having regard to the scheme and the ordinary
state of affairs and consequences flowing therefrom. The
modern approach is to consider whether a child can live up
to the moral and psychological components of criminal
responsibility, that is, whether a child, by virtue of his or her
individual discernment and understanding can be held
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responsible for essentially antisocial behaviour.
(emphasis supplied)
75. The statute, it is well known, must be construed in
such a manner so as to make it effective and operative
on the principle of ut res magis valeat quam pereat. The
courts lean strongly against any constructions which
tend to reduce a statute to a futility. When two
meanings, one making the statute absolutely vague,
wholly intractable and absolutely meaningless and the
other leading to certainty and a meaningful
interpretation, are given, in such an event the latter
should be followed. (See Tinsukhia Electric Supply Co.
Ltd. v. State of Assam 1989 3 SCC 709, Andhra Bank v.
B. Satyanarayana 2004 2 SCC 657 and Indian
Handicrafts Emporium v. Union of India 2003 7 SCC
589.)
11. The Hon'ble Supreme Court in Salil Bali Versus Union of
India and another [ 2013(7) SCC 705] again discussed the scope of
Juvenile Justice Act, 2000 pertaining to the rights of children. The vires of
Juvenile Justice (Care and Protection of Children) Act, 2000 was challenged
and upheld although broadly the scope of the bunch of petitions pertained
to fixation of age of a juvenile. Various international conventions,
declarations and resolutions were discussed and it was also observed that
Juvenile Justice Act, 2000 was in tune with the provisions of the
Constitution and various declarations and conventions adopted by the world
community represented by the United Nations. The relevant portion of the
aforesaid judgment is reproduced as under:-
41. It cannot be questioned that children are amongst the
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most vulnerable sections in any society. They represent
almost one-third of the world's population, and unless they
are provided with proper opportunities, the opportunity of
making them grow into responsible citizens of tomorrow will
slip out of the hands of the present generation. International
community has been alive to the problem for a long time.
After the aftermath of the First World War, the League of
Nations issued the Geneva Declaration of the Rights of the
Child in 1924. Following the gross abuse and violence of
human rights during the Second World War, which caused
the death of millions of people, including children, the
United Nations had been formed in 1945 and on 10th
December, 1948 adopted and proclaimed the Universal
Declaration of Human Rights. While Articles 1 and 7 of the
Declaration proclaimed that all human beings are born free
and equal in dignity and rights and are equal before the
law, Article 25 of the Declaration specifically provides that
motherhood and childhood would be entitled to special care
and assistance. The growing consciousness of the world
community was further evidenced by the Declaration of the
Rights of the Child, which came to be proclaimed by the
United Nations on 20th November, 1959, in the best interests
of the child. This was followed by the Beijing Rules of 1985,
the Riyadh Guidelines of 1990, which specially provided
guidelines for the prevention of juvenile delinquency, and the
Havana Rules of 14th December, 1990. The said three sets of
Rules intended that social policies should be evolved and
applied to prevent juvenile delinquency, to establish a
Juvenile Justice System for juveniles in conflict with law, to
safeguard fundamental rights and to establish methods for
social re- integration of young people who had suffered
incarceration in prison or other corrective institutions. One
of the other principles which was sought to be reiterated and
adopted was that a juvenile should be dealt with for an
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offence in a manner which is different from an adult. The
Beijing Rules indicated that efforts should be made by
member countries to establish within their own national
jurisdiction, a set of laws and rules specially applicable to
juvenile offenders. It was stated that the age of criminal
responsibility in legal systems that recognize the concept of
the age of criminal responsibility for juveniles should not be
fixed at too low an age-level, keeping in mind the emotional,
mental and intellectual maturity of children.
42. Four years after the adoption of the Beijing Rules, the
United Nations adopted the Convention on the Rights of the
Child vide the Resolution of the General Assembly No. 44/25
dated 20th November, 1989, which came into force on 2nd
September, 1990. India is not only a signatory to the said
Convention, but has also ratified the same on 11th
December, 1992. The said Convention sowed the seeds of the
enactment of the Juvenile Justice (Care and Protection of
Children) Act, 2000, by the Indian Parliament.
43. India developed its own jurisprudence relating to
children and the recognition of their rights. With the
adoption of the Constitution on 26th November 1949,
constitutional safeguards, as far as weaker sections of the
society, including children, were provided for. The
Constitution has guaranteed several rights to children, such
as equality before the law, free and compulsory primary
education to children between the age group of six to
fourteen years, prohibition of trafficking and forced labour
of children and prohibition of employment of children below
the age of fourteen years in factories, mines or hazardous
occupations. The Constitution enables the State
Governments to make special provisions for children. To
prevent female foeticide, the Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act
was enacted in 1994. One of the latest enactments by
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Parliament is the Protection of Children from Sexual
Offences Act, 2012.
44. The Juvenile Justice (Care and Protection of Children)
Act, 2000, is in tune with the provisions of the Constitution
and the various Declarations and Conventions adopted by
the world community represented by the United Nations. The
basis of fixing of the age till when a person could be treated
as a child at eighteen years in the Juvenile Justice (Care
and Protection of Children) Act, 2000, was Article 1 of the
Convention of the Rights of the Child, as was brought to our
notice during the hearing. Of course, it has been submitted
by Dr. Kishor that the description in Article 1 of the
Convention was a contradiction in terms. While generally
treating eighteen to be the age till which a person could be
treated to be a child, it also indicates that the same was
variable where national laws recognize the age of majority
earlier. In this regard, one of the other considerations which
weighed with the legislation in fixing the age of
understanding at eighteen years is on account of the
scientific data that indicates that the brain continues to
develop and the growth of a child continues till he reaches at
least the age of eighteen years and that it is at that point of
time that he can be held fully responsible for his actions.
Along with physical growth, mental growth is equally
important, in assessing the maturity of a person below the
age of eighteen years. In this connection, reference may be
made to the chart provided by Mr. Kanth, wherein the
various laws relating to children generally recognize
eighteen years to be the age for reckoning a person as a
juvenile/ child including criminal offences.
12. In Dr. Subramanian Swamy and others Versus Raju
through Member Juvenile Justice Board and another [2014(3) SCC
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(Criminal) 482], the Supreme Court again dealt with the scope of Juvenile
Justice Act, 2000. Although the vires of the Act was not directly in issue
nor was the fixation of age of 18 years in issue but the scope was only
restricted to need for analysis of the mental, intellectual and emotional state
of mind of a person (under the age of 18). The laws relating to juveniles
pertaining to various other countries were referred and it was observed that
the Act is a beneficial piece of legislation. The relevant portion of the
aforesaid judgment is reproduced as under:-
39. Having laid bare all that is necessary for a purposive
adjudication of the issues that have been raised by the rival
camps we may now proceed to examine the same.
The Act, as manifestly clear from the Statement of Objects
and Reasons, has been enacted to give full and complete
effect to the country's international obligations arising from
India being a signatory to the three separate conventions
delineated hereinbefore, namely, the Beijing Rules, the UN
Convention and the Havana Rules. Notwithstanding the
avowed object of the Act and other such enactments to further
the country's international commitments, all of such laws
must necessarily have to conform to the requirements of a
valid legislation judged in the context of the relevant
constitutional provisions and the judicial verdicts rendered
from time to time. Also, that the Act is a beneficial piece of
legislation and must therefore receive its due interpretation
as a legislation belonging to the said category has been laid
down by a Constitution Bench of this Court in Pratap Singh
vs. State of Jharkhand and Another[10]. In other words, the
Act must be interpreted and understood to advance the cause
of the legislation and to confer the benefits of the provisions
thereof to the category of persons for whom the legislation
has been made.
(emphasis supplied)
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43. In the present case there is no difficulty in understanding
the clear and unambiguous meaning of the different
provisions of the Act. There is no ambiguity, much less any
uncertainty, in the language used to convey what the
legislature had intended. All persons below the age of 18 are
put in one class/group by the Act to provide a separate
scheme of investigation, trial and punishment for offences
committed by them. A class of persons is sought to be created
who are treated differently. This is being done to
further/effectuate the views of the international community
which India has shared by being a signatory to the several
conventions and treaties already referred to.
45. If the provisions of the Act clearly indicate the legislative
intent in the light of the country's international commitments
and the same is in conformity with the constitutional
requirements, it is not necessary for the Court to understand
the legislation in any other manner. In fact, if the Act is
plainly read and understood, which we must do, the resultant
effect thereof is wholly consistent with Article 14. The Act,
therefore, need not be read down, as suggested, to save it
from the vice of unconstitutionality for such
unconstitutionality does not exist.
13. The Juvenile Justice Act, 2015 rebuilds and fortifies the
earlier Acts pertaining to Juvenile Justice although the broad objectives and
nature of legislation is the same. The statement of objects and reasons and
the preamble reflects the foundation and purpose of the Act. The JJ Act,
2015 was enacted for care and protection of juveniles by catering to their
basic needs through proper care, protection, development, treatment, social
re-integration, by adopting a child-friendly approach in the adjudication and
disposal of matters in the best interest of children and for their rehabilitation
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through processes provided, and institutions and bodies established. The
enactment has its source from rights and duties under Clause (3) of Article
15 as well as Clauses (e) and (f) of Article 39, Article 45 and Article 47 of
the Constitution of India. Apart from the same, the Government of India
has acceded to the convention of the rights of the child adopted by the
General Assembly of United Nations which has prescribed a set of
standards to be adhered to by all State parties in securing the best interest of
the child.
14. The Hon'ble Supreme Court in Independent thought Versus
Union of India and another [2017(10) Supreme Court Cases 800] was
dealing with exception 2 of Section 375 IPC pertaining to the offence of
rape which was directed to be read as sexual intercourse or sexual acts by
a man with his own wife, wife not being the age of 18 years of age is not
rape. The doctrine of 'reading down' was invoked and it was observed that
it was only through this reading that the intent of social justice to the
married girl child and the constitutional vision of the framers of our
Constitution can be preserved and protected and perhaps given impetus. It
was in this background that the provisions of Juvenile Justice Act, 2015
were also discussed and it was observed that the JJ Act, 2015 is also
relatable to Article 15 of the Constitution of India. Not only the JJ Act, 2015
was discussed but the provisions of other legislations including POCSO Act
were also discussed as they pertain to the rights of children. It was also
observed that all these 'child-friendly statutes' are essential for the well-
being of the girl child (whether married or not) and are protected by Article
15(3) of the Constitution. Furthermore, it was also observed that under
pro-child statutes which have been enacted in the recent past though not
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effectively implemented, a child is and remains a child regardless of the
description or nomenclature given to the child. It was further observed
that the statutes concerning the rights of children are special laws
concerning a special subject of legislation and therefore, the provisions of
such subject-specific legislations must prevail and take precedence over the
provisions of a general law such as the IPC. The intention of the JJ Act,
2015 is to benefit a child rather than place her in difficult circumstances. A
contrary view would not only destroy the purpose and spirit of the JJ Act,
2015 but would also take away the importance of Article 15(3) of the
Constitution of India. The relevant portion of the aforesaid judgment is
reproduced as under:-
79. There is no doubt that pro-child statutes are intended to
and do consider the best interest of the child. These statutes
have been enacted in the recent past though not effectively
implemented. Given this situation, we are of opinion that a
few facts need to be acknowledged and accepted.
79.1 Firstly, a child is and remains a child regardless of the
description or nomenclature given to the child. It is
universally accepted in almost all relevant statutes in our
country that a child is a person below 18 years of age.
Therefore, a child remains a child whether she is described as
a street child or a surrendered child or an abandoned child or
an adopted child. Similarly, a child remains a child whether
she is a married child or an unmarried child or a divorced
child or a separated child or a widowed child. At this stage
we are reminded of Shakespeare's eternal view that a rose by
any other name would smell as sweet - so also with the status
of a child, despite any prefix.
95. Whatever be the explanation, given the context and
purpose of their enactment, primacy must be given to pro-
child statutes over the IPC as provided for in Sections
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5 and 41 of the IPC. There are several reasons for this
including the absence of any rationale in creating an artificial
distinction, in relation to sexual offences, between a married
girl child and an unmarried girl child. Statutes concerning
the rights of children are special laws concerning a special
subject of legislation and therefore the provisions of such
subject-specific legislations must prevail and take
precedence over the provisions of a general law such as
the IPC. It must also be remembered that the provisions of the
JJ Act as well as the provisions of the POCSO Act are
traceable to Article 15(3) of the Constitution which enables
Parliament to make special provisions for the benefit of
children. We have already adverted to some decisions
relating to the interpretation of Article 15(3) of the
Constitution in a manner that is affirmative, in favour of
children and for children and we have also adverted to the
discussion in the Constituent Assembly in this regard. There
can therefore be no other opinion regarding the pro-child
slant of the JJ Act as well as the POCSO Act.
(emphasis supplied)
15. The Juvenile Justice Act, 2015 is therefore more protective and
supportive legislation as compared to the earlier Acts. There is a
progressive change in the language of the preamble and reference is also
made to the Hague Convention in respect of inter-country adoption and
other related international instruments. The specific provisions for
'abandoned child' have been introduced changing the classification of
heinous offence and new provisions for Children's Court apart from
enhancement of punishment for juveniles against the heinous crime has
been effected in the new legislation of 2015. Apart from the same, the
scope of overriding clause under Section 1(4) has also been enlarged.
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Effect of non-obstante clauses
16. In order to deal with the arguments raised by the learned
counsel for the petitioner, it will be necessary to consider the non-obstante
clause provided under Section 1(4) of the JJ Act, 2015. The said provision
has already been reproduced above for the purpose of reference. It provides
that the Act will have overriding effect upon any other law for the time
being in force and the provisions of this Act shall apply to the matters
concerning children in need of care and protection as well as children in
conflict with law. The scope of the same has also been stated in Section
1(4) to include apprehension, detention, prosecution, penalty or
imprisonment, rehabilitation and social re-integration of children in conflict
with law and also procedures and decisions or orders relating to
rehabilitation, adoption, re-integration and restoration of children in need of
care and protection. This provision is somewhat similar kind of provision
which was also inserted by way of amendment in the year 2006 w.e.f.
22.08.2006 in the old Act of 2000 but the present provision under the new
Act of 2015 is more elaborative and illustrative. The provision can be
analyzed by dissecting the same as follows:
(i) The Act of 2015 shall override any other law for the
time being in force.
(ii) The Act applies to all matters concerning in need of
care and protection.
(iii) The Act also applies to children in conflict with law.
(iv) The areas of operation whereby this Act applies will
include apprehension, detention, prosecution, penalty or
imprisonment, rehabilitation and social re-integration of
children in conflict with law and procedures and decisions
or orders relating to rehabilitation, adoption, re-integration
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and restoration of children in need of care and protection.
(v) The scope of areas of operation as aforesaid are
inclusive in nature and are therefore not exhaustive.
As compared to earlier provision under 2000 Act, the aforesaid
areas have now been mentioned in the clause itself. The non-obstante clause
in the new Act of 2015 therefore becomes much more clarificatory,
illustrative and unambiguous in nature reflecting the intention of legislature.
17. In M/s Maruti Udyong Ltd. Versus Ram Lal [2005(2) SCC
638] it was held by Hon'ble Supreme Court that it is well settled that when
both statutes containing non-obstante clauses are special statutes, then an
endeavour should be made to give effect to both of them. In case of
conflict, the latter shall prevail. Reference was also made to the earlier
judgement of the Supreme Court in Solidaire India Ltd. Versus Fairgrowth
Financial services (Supra).
18. In the light of the aforesaid specific provision contained under
Section 1(4) of the JJ Act, 2015, the scope and effect of non-obstante clause
needs to be further discussed.
19. A non-obstante clause is normally incorporated in a section at
the beginning of a statute which gives an overriding effect over a provision
or an Act which is specifically mentioned in the provision itself. In a normal
language it would also mean that inspite of the provisions of some other
provisions or some other Act, the enactment in which the non-obstante
clause has been incorporated will operate and a conflict, if any, gets fully
resolved. The language used in the non-obstante clause is of utmost
importance. It can provide for overriding effect over other provisions of the
Act or any other law for the time being in force and therefore, the language
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used therein needs to be given effect. A non-obstante clause is always used
as a contradistinction to the phrase 'subject to'. Furthermore the effect of a
non-obstante clause is similar to that of 'proviso' or an 'exception' but the
aforesaid two expressions are used normally for the purpose of interpreting
and giving effect to a particular provision in a particular statute.
20. In the present case, the expression used by the legislature in its
wisdom while incorporating a non-obstante clause under Section 1(4) is
clear and unambiguous when it provides that it will have an overriding effect
upon 'any other law for the time being in force'. Apart from the same, the JJ
Act, 2015 also provides for various provisions pertaining to apprehension,
detention, prosecution, penalty or imprisonment, rehabilitation and social
re-integration of children in conflict with law. The inclusive clauses of
Section 1(4) would further substantiate the intention of legislature to mean
that in the aforesaid areas as well and without any doubt the operation of the
present Act of 2015 shall prevail and will have an overriding effect over
any other law for the time being in force. Although the description of the
aforesaid areas is inclusive in nature and not exhaustive but the intention of
legislature speaks for itself. It is a fundamental rule of construction that
normally no provision or word should be considered to be either
superfluous or redundant and the Courts must always presume that the
legislature has inserted every part thereof with a purposeful legislative
intention and must be given effect.
21. The Hon'ble Supreme Court in Sarwan Singh Versus Kasturi
Lal [1977 AIR (Supreme Court) 265] observed that the object and purpose
of a legislation assumes greater relevance if the language of the law is
obscure and ambiguous. When there is a conflict of two or more laws
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which operate in same field and they contain non-obstante clauses, then
they have to be decided in reference to the object and purpose of the laws
under consideration. For resolving such inter se conflicts, one another test
may also be applied through a persuasive force of such a test but one of the
factors which combine to give a fair meaning to the language of the law.
That test is that the later enactment must prevail over the earlier one.
22. In Union of India and another Versus G.M. Kokil and others
[AIR 1984 (Supreme Court) 1022], it was observed by the Hon'ble
Supreme Court that it is well-known that a non-obstante clause is a
legislative device which is usually employed to give an overriding effect
to certain provisions over some contrary provisions that may be found
either in the same enactment or some other enactment, that is to say, to avoid
the operation and effect of all contrary provisions.
23. In Chandravarkar Sita Ratna Rao Versus Ashalata S. Guram
[1986(4) SCC 447] the Hon'ble Supreme Court observed that it is well
settled that 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.
24. In Yakub Abdul Razak Memon Versus The State of
Maharashtra, through CBI, Bombay [2013(13) SCC 1], the Hon'ble
Supreme Court dealt with the cases pertaining to Bombay bomb blast under
the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987
( in short 'TADA Act'). The issue with regard to conflict of laws was also
considered. One of the appellants in that case was of the age of about 17
years and 3 months on the date of commission of offence and an argument
was raised on his behalf that he ought to have been dealt with under the
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JJ Act, 2000 and the provisions of TADA Act were not applicable to him.
There were two different legislations and both of them contained non-
obstante clause. The TADA Act was of the year 1987 but it was repealed in
the year 1995, although the incident had taken place in Bombay in the
year 1993 which was prior to the repeal of the Act. Section 25 of the
TADA Act provided for an overriding clause wherein it was provided that
the provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act or in
any instrument having effect by virtue of any enactment other than this Act.
The JJ Act, 2000 which was enacted after the incident and after the repeal of
the TADA Act did not originally have any non-obstante clause for giving
an overriding effect to any other law. However, JJ Act, 2000 was amended
w.e.f. 22.08.2006 wherein Section 1(4) was added by way of an amendment
which gave an overriding effect to the Act over other statutes. In this way,
both the statutes i.e. TADA Act and JJ Act, 2000 contained non-obstante
clauses and had an overriding effect upon each other. The Hon'ble Supreme
Court referred to two maxims for the purpose of examination of issue
which are as follows:
1. Leges posteriores priores contrarias abrogant (later laws
abrogate earlier contrary laws)
2. Generalia specialibus non derogant ( a general provision
does not derogate from a special one)
25. It was further observed by the Hon'ble Supreme Court that the
principle that the later Act would prevail over the earlier Act has
consistently been held to be subject to the exception that a general
provision does not derogate from a special one. It means that where the
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literal meaning of the general enactment covers a situation for which
specific provision is made by another enactment contained in the earlier
Act, it would be presumed that the situation was intended to continue to be
dealt with by the specific provision rather than the later general one. It was
further observed that where there is inconsistency between the provisions
of two statutes and both can be regarded as special in nature, the conflict
has to be resolved by reference to the purpose and policy underlying the
two enactments and the clear intendment of the legislature conveyed by the
language of the relevant provisions therein. While referring to another
judgment of Supreme Court in Employees Provident Fund Commissioner
Versus Official Liquidator of Esskay Pharmaceuticals Ltd. [2011(10)
SCC 727], it was further observed that the Court had earlier held that the
non-obstante nature of a provision although may be of wide amplitude, the
interpretative process thereof must be kept confined to the legislative
policy. The non-obstante clause must be given effect to, to the extent the
legislature intended and not beyond the same. Reference was also made to
the declaration of the rights of the child adopted by the United Nations on
20.11.1959 which provides that the child by reason of his physical and
mental immaturity needs special safeguards and care including his
appropriate legal protection before as well as after birth. Reference was also
made to the United Nations adopted the Standard Minimum Rules for the
Administration of Juvenile Justice (Beijing Rules) dated 29.11.1985 and
India is a signatory to the declaration and effectively participated in
bringing the declaration into force. The Rules guide the States to protect
children's rights and respect their needs during the development of separate
and particular system of juvenile justice. It is also in favour of meeting the
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best interests of the child while conducting any proceedings before any
authority. If children are processed through the criminal justice system, it
results in the stigma of criminality and this in fact amplifies criminality of
the child. The Rules say that depriving a child/juvenile of his liberty should
be used as the last resort and that too, for the shortest period. These Rules
direct the juvenile justice system to be fair and humane emphasising the
well being of child. It was further observed that the objects and reasons of
the JJ Act, 2000 reveal that the Act is in consonance with the provisions
under Article 21 read with clause (f) of Article 39 of the Constitution of
India which provides that the State shall direct its policy towards securing
the children or give opportunities and facilities to develop in a healthy
manner and in conditions of freedom, dignity, childhood and youth are
protected against exploitation and against moral and material abandonment.
It was further observed that there can be no doubt that the JJ Act is
beneficial in nature i.e. socially oriented legislation. Para No.1535 of
Yakub Abdul Razak Memon (Supra) is reproduced as under:-
1535. Therefore, there can be no doubt that the JJ Act
is beneficial in nature i.e. socially oriented
legislation. In case the provisions are not complied
with, the object of its enactment would be frustrated.
(emphasis supplied)
26. While considering the conflict between two legislations it was
observed that when the JJ Act, 2000 itself provides for an exception under
which even bail may not be granted, the contention that JJ Act would
override the provisions of TADA in all circumstances without any
exception and in case the legislature itself has carved out an exception not
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to grant relief to a juvenile under the JJ Act, it cannot be held that it would
prevail over TADA under all possible circumstances. Further reference was
made to Section 1(4) which was added by way of amendment w.e.f.
22.08.2006 and while referring to the same it was observed that although
this provision gives overriding effect over other statutes but the provisions
of TADA left long back and were admittedly not in force on 22.08.2006
when the amendment of JJ Act, 2000 came into force. Thus, the question
that arose was as to what is the meaning of 'the law for the time being in
force'. The Court had earlier interpreted this phrase to include the law in
existence on the date of commencement of the Act having overriding effect
and the law which may be enacted in future during the life of the Act
having overriding effect. Therefore, the Supreme Court was of the view
that the JJ Act, 2000 would not have overriding effect on TADA which was
not in existence on the date of commencement of the amended provision of
Section 1 (4) of the JJ Act, 2000. It was further observed that the TADA
being a special Act meant to curb the menace of terrorist and disruptive
activities will have effect notwithstanding the fact that the JJ Act is general
and beneficial legislation.
Consideration of submissions made by learned
counsel for the parties
27. The first and foremost submission made by the learned counsel
for the petitioner was pertaining to Section 11 and 13 of the NIA Act,
2008 which revolves around the issue of jurisdiction of Court. Section 11
of NIA Act, 2008 provides for the power of the Central Government to
designate the Court of Sessions as Special Courts which has already been
done in the State of Punjab. Section 13 provides for jurisdiction of Special
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Courts and opens with a non-obstante clause by providing that every
scheduled offence investigated by the Agency shall be tried only by the
Special Court within whose local jurisdiction it was committed. In the
Schedule of the NIA Act, vide entry No.2, the UAPA Act has been inserted.
The present FIR and the charges framed are also under the provisions of
UAPA Act. It is the argument of the learned counsel for the petitioner that
in view of the aforesaid specific provisions, whenever an offence pertains to
UAPA Act it has to be tried by a Special Court under the NIA Act in view of
Section 13 of the Act. However, on the other hand, the argument raised by
the learned counsel for the respondent was that by virtue of Section 1(4) of
the JJ Act, 2015 the non-obstante clause provided therein has an absolute
overriding effect upon any other law for the time being in force which
includes the NIA Act, 2008.
28. A perusal of Section 13 of the NIA Act would show that the
non-obstante clause provides for overriding effect upon the 'Code' and does
not provide any overriding effect over any other law for the time being in
force . In other words, the overriding effect is to the limited extent only. The
expression 'Code' has also been defined under Section 2(b) of the NIA Act to
mean the Code of Criminal Procedure, 1973. The language used in Section
13(1) by the legislature in its wisdom is clear and unambiguous. The
intention of the legislature was to give the provisions of NIA Act an
overriding effect over the Code of Criminal Procedure only. On the other
hand, a perusal of Section 1(4) of the JJ Act, 2015 would show that it
provides that the Act has an overriding effect upon any other law for the
time being in force. Furthermore, the operation of overriding effect has
also been clarified and illustrated by including apprehension, detention,
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prosecution, penalty or imprisonment, rehabilitation and social re-
integration of children in conflict with law. The present is a case pertaining
to child in conflict with law. The language used by the legislature in its
wisdom in Section 1(4) is also clear and unambiguous. Furthermore, while
listing the areas of operation of non-obstante clause which are
non-exhaustive, a clarificatory projection has been made so as to avoid any
confusion or doubt and to make the provision more apparent and
unambiguous. The importance of the areas so provided in the inclusive
clause will become more clear when compared with the amended
provisions of Section 1(4) of JJ Act, 2000. Both the provisions are
reproduced below in a tabulated form.
JJ Act, 2000 JJ Act, 2015
Section 1(4) Section 1(4)
Notwithstanding anything Notwithstanding anything contained in any
contained in any other law other law for the time being in force, the
for the time being in force, provisions of this Act shall apply to all
the provisions of this Act matters concerning children in need of care
shall apply to all cases and protection and children in conflict with
involving detention, law, including-
prosecution, penalty or (i) apprehension, detention, prosecution,
sentence of imprisonment of penalty or imprisonment, rehabilitation and
juveniles in conflict with law social re-integration of children in conflict
under such other law. with law;
(ii) procedures and decisions or orders
relating to rehabilitation, adoption, re-
integration, and restoration of child in
needs of care and protection.
29. A comparison of both the provisions would show that although
the intention of legislature in both the enactments of 2000 and 2015 was
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the same i.e. to give an overriding effect to the JJ Act over any other law
for the time being in force, However, in Section 1(4) of JJ Act, 2015, the
scope has been extended even to matters concerning children in need of
care and protection which was absent in JJ Act of 2000. The areas of
operation of non-obstante clause has also been elaborated and classified.
Therefore, it is not only an improvement by way of clarification but also
reflects strong intention of the legislature by inserting Section 1(4) in the
JJ Act, 2015 in a more elaborate form. On the other hand, Section 13(1) of
the NIA Act does not provide for any overriding effect over the provisions
of the JJ Act.
30. Apart from the same, the preamble of the JJ Act, 2015 clearly
provides that the Act is to consolidate and amend the law relating to
children in need of care and protection by catering to their basic need
through proper care, protection, development, treatment, social re-
integration, by adopting a child-friendly approach in the adjudication and
disposal of matters in the best interest of children and for their
rehabilitation through processes provided and institutions and bodies
established herein under and for matters connected therewith or incidental
thereto.
31. Therefore the intention of legislature is also reflected in the
spirit of preamble itself that the Act is also for adjudication and disposal of
matters in the best interest of children and that too through the institutions
and bodies established under the Act.
32. The JJ Act, 2015 came into force w.e.f. 15.01.2016 and is
therefore later in point of time as compared to the NIA Act, 2008. The
basic rule of interpretation is that when there is a conflict between two
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statutes then the latter shall prevail. However, in case of interpretation of
statutes, two more situations may arise. Firstly, when there are two special
statutes and the conflict arises between them and secondly, when the
earlier statute is a special statute and later statute is a general statute and a
conflict arises between them. In the first category, it can be noticed at the
first instance that in case both the statutes are to be treated as special
statutes, then the latter shall prevail but in the present case the JJ Act, 2015
provides for a non-obstante clause qua any other law for the time being in
force whereas NIA Act, 2008 provides for a non-obstante clause qua Code
of Criminal Procedure only and therefore, a conflict does not arise in the
present case. In the second category in case the JJ Act, 2015 is to be treated
as a general statute, again a conflict would not arise in view of the same
reasoning that JJ Act, 2015 has provided for a specific non-obstante clause
giving overriding effect over other laws for the time being in force. Apart
from the above, Section 8(1) of JJ Act, 2015 provides for another non-
obstante clause by providing that notwithstanding anything contained in
any other law for the time being in force but save as otherwise provided in
this Act, the Board constituted for any district shall have the power to deal
exclusively with 'all the proceedings under this Act' relating to children in
conflict with law, in the area of jurisdiction of such Board. Section 8(2)
provides that the powers on the Board by or under this Act may also be
exercised by the High Court and the Children's Court, when the proceedings
come before them under Section 19 or in appeal, revision or otherwise. In
the present case, the trial is before the Children's Court and the powers
conferred on the Board are also to be exercised by the Children's Court and
by virtue of Section 8(1), the Children's Court will have the power to deal
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exclusively with all the proceedings under this Act relating to children in
conflict with law. Therefore, the twin non-obstante clauses would have an
overriding effect upon the NIA Act, 2008 which does not provide for any
non-obstante clause qua other laws except for the Code of Criminal
Procedure.
32. The Hon'ble Supreme Court in Independent Thought Versus
Union of India and another (Supra) has categorically observed that statutes
concerning the rights of children are special laws concerning the special
subject of legislation and therefore, the provisions of such subject- specific
legislations must prevail and take precedence over the provisions of the
general law such as IPC.
33. The Hon'ble Supreme Court in Dr. Subramanian Swamy and
others Versus Raju through Member Juvenile Justice Board and another
(Supra) also observed that the JJ Act is a beneficent legislation.
34. While discussing the juvenile issue, the Hon'ble Supreme Court
in Yakub Abdul Razak Memon Versus The State of Maharashtra (Supra)
observed that there is no doubt that JJ Act is beneficial in nature and is
socially oriented legislation and in case the provisions are not complied
with, the object of its enactment would be frustrated. However, while
resolving the conflict between the JJ Act, 2000 and TADA Act, 1987, it
was observed that Section 1(4) of JJ Act, 2000 was added w.e.f. 22.08.2006
which gave overriding effect over other statutes. However, the other statutes
in that case was TADA Act which was not in existence and was repealed
much before coming into force of the amendment of 22.08.2006. Since the
overriding effect was provided over other statutes and TADA Act stood
repealed much before the same, it could not be said that JJ Act, 2000 will
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have an overriding effect upon the TADA Act. In the present case, both the
NIA Act, 2008 and JJ Act, 2015 are in operation. The later in point of time
is JJ Act which provides for clear cut non-obstante over any other law for
the time being in force whereas Section 13 of the NIA Act provides for
non-obstante clause giving an overriding effect only upon the Code of
Criminal Procedure and therefore, this Court is of the view that the JJ Act,
2015 will have an overriding effect over the NIA Act, 2008.
35. Another argument raised by the learned counsel for the
petitioner was that the Special Court constituted under the NIA Act
provides speedy trial and rather under Section 19 it has been so provided
that the trial by Special Court will have precedence and the Special Court
shall hold the trial on day-to-day basis. However, the said argument
although seems to be attractive but does not cut any ice. The argument of
speedy trial, if any, cannot be given preference when issue of jurisdiction
of Court is involved. The jurisdiction of a Court can neither be taken away
nor vested in a particular Court on the basis of aforesaid argument.
36. The next argument raised by the learned counsel for the
petitioner was that under Section 2(20) of the JJ Act, the expression
'Children's Court' means established under the Commissions for Protection
of Child Rights Act, 2005 and a Children's Court can be either under the
aforesaid Act or a Special Court under the POCSO Act and where such
Courts have not been designated, then the Sessions Court will have the
jurisdiction to try the offences under the Act. Under the NIA Act also the
Sessions Courts have been designated as Special Court and since under
both the legislations the Sessions Judge/Additional Sessions Judge has
been designated as Special Court, then no prejudice would be caused to the
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respondent in case the same is tried by a Special Court constituted under
NIA Act. In the present case, under Section 25 of the Commissions for
Protection of Child Rights Act, 2005, Children's Court has already been
designated and is operational. The argument raised by the learned counsel
for the petitioner that in both the legislations the Court is held by Presiding
Officer of the rank of Sessions Judge/Additional Sessions Judge and
therefore, no prejudice would be caused to the respondent is also not
sustainable in view of the fact that such a reasoning cannot become a
ground for conferring a jurisdiction upon a particular Court. In the present
case, the jurisdiction is vested in the Children's Court under Section 18(3) of
the JJ Act, 2015 and by virtue of Section 1(4) of the Act, the provisions of
the Act will have an overriding effect upon any other law for the time
being in force. The learned counsel also referred to Section 16(3) of the
NIA Act, 2008 to contend that the Special Court under NIA Act has all
the powers of a Court of Sessions and try the offence as if it were a Court
of Sessions in accordance with the procedure prescribed under the Code of
Criminal Procedure and therefore, there would be no difference with regard
to the procedure adopted by the Court, if it is tried by the Special Court
constituted under the NIA Act or by the Children's Court. Reliance placed
by the learned counsel for the petitioner on Section 16(3) of the NIA Act is
also misconceived. The mere fact that the procedure adopted by both the
Courts i.e by the Special Court under the NIA Act and Children's Court is
similar cannot vest or take away jurisdiction of a Court on this ground
alone.
37. The next argument raised by the learned counsel for the
petitioner that the respondent will attain the age of 21 years on 15.09.2022
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and therefore, the benefit of not sending him to jail will no longer be
available to him after the aforesaid date. Furthermore, Section 17 also
provides for protection of witnesses since the matter involved was serious
and heinous in nature and therefore, such a protection which is available to
the witnesses of the case will not available under the JJ Act. In continuation
of the aforesaid argument the learned counsel for the petitioner has also
submitted that the offences under the NIA Act were very serious and
involved national Security, Interest and Sovereignty of the State and
therefore, must be tried under the NIA Act. However, on the other hand,
the learned counsel for the respondent rather relied upon various
provisions of the JJ Act, 2015 wherein various procedures and safeguards
have been provided for the purpose of protection and care of a juvenile. He
referred to Section 3 of the JJ Act, 2015 which provides for general
priciples to be followed in the administration of Act. A number of
safeguards and protections have been enumerated in the aforesaid section for
which the respondent is entitled. He further referred to Sections 5 and 6
which provide that when an offence is committed by a child less than 18
years, he shall be continued to be treated as a child during the course of trial
and it also provides for a non-obstante clause by giving an overriding effect
over any other law for the time being in force. Furthermore, Section 8(3) of
JJ Act, 2015 also provides for another set of safeguards wherein powers of
Children's Court has been provided. He further referred to Section 21 of the
JJ Act, 2015 which is another provision which gives an overriding effect
over any other law for the time being in force and provides that no child in
conflict with law shall be sentenced to death or life imprisonment without
the possibility of release for any such offence either under the provisions of
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this Act or under the provisions of IPC or any other law for the time
being in force In this way, a ceiling in the quantum of sentence has also
been prescribed by giving an overriding effect. Another safeguard has been
provided under Section 23 of the JJ Act, 2015 which provides that there
shall be no joint proceedings of a child who is alleged to be in conflict with
law and this provision also has an overriding effect upon any other law for
the time being in force. He submitted that in case the trial is transferred to
NIA Court, then all the safeguards and protections which have been
provided to the respondent will not be available to him. The argument
raised by the learned counsel for the respondent carries weight due to three
reasons. Firstly, the safeguards which are provided under the JJ Act, 2015
which is a beneficial legislation cannot be snatched away from the
respondent since it is a socially oriented legislation deriving its source from
the Constitution of India and from various international conventions and
resolutions. The safeguards are also supported by non-obstante clauses
which have overriding effect over any other law for the time being in
force. Secondly, the provisions for protection of witnesses under the NIA
Act, 2008 cannot deprive the respondent of his statutory rights available to
him under the JJ Act, 2015. Thirdly, all these issues raised by learned
counsel for the petitioner would be subservient to the dominant issue of
jurisdiction.
38. The next argument raised by the learned counsel for the
petitioner is that under Section 21(2) of the NIA Act, 2008 every appeal
shall be heard by a Bench of two Judges of the High Court whereas an
appeal from judgment/order passed by the learned Children's Court under
the JJ Act, 2015 would be heard by learned single Judge of the High Court.
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Such argument would also be not sustainable in view of the fact that the
remedy of appeal is provided under both the statutes and it will be
insignificant and unnecessary to discuss with regard to the number of
Judges in a Bench especially when the core issue relates to the point of
jurisdiction of Court.
39. The learned counsel for the petitioner has also placed reliance
upon two judgments. While referring to judgment of Hon'ble Supreme
Court in Naser Bin Abu Bakr Yafai Versus State of Maharashtra and
another (Supra) his submission was that once NIA took up the
investigation, then Special Court designated under Section 11 of the NIA
Act would have sole jurisdiction to try a case. The aforesaid judgment would
be distinguishable from the present case in view of the fact that there is no
dispute with regard to the proposition that in a given case when NIA takes
up investigation, then the jurisdiction would vest in the NIA Court under
Section 13 of the NIA Act, 2008 which will have the sole jurisdiction.
However, in the aforesaid judgment the issue of applicability of Juvenile
Justice Act, 2015 and its overriding effect was not involved and therefore,
it is distinguishable from the present case. Another judgment relied upon by
the learned counsel for the petitioner was Master Bholu Versus State of
Haryana and another (Supra) to contend that in such like serious cases a
juvenile should be treated as an adult for the purpose of trial for deciding
bail application. The said judgment is also distinguishable in view of the fact
that it pertains to subject matter of bail and does not pertain to the issue of
jurisdiction of Court.
Conclusion
40. After giving my thoughtful consideration to the aforesaid facts
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and circumstances as well as the legal position especially considering the
effect of Section 1(4) of the JJ Act, 2015, it is held that when an FIR is
registered under a Scheduled Act prescribed under the NIA Act and a
juvenile has been directed to be tried as an adult by the Children's Court,
then the jurisdiction would vest in the Children's Court and not in the
Special Judge under the NIA Act.
41. Consequently, finding no merit in the present petition, the same
is hereby dismissed. Interim order dated 11.05.2021 stands vacated.
26.07.2022 (JASGURPREET SINGH PURI)
rakesh JUDGE
Whether speaking : Yes/No
Whether reportable : Yes/No
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