can pass any order for remand to produce any accused person before him
after a specified number of days of police custody or release him upon an
observation that his detention is unnecessary. The Magistrate would be
duty bound to direct the relevant police officer to produce any person
suspected or accused of any offence under the Children Act before the
relevant Court of Session established in the District as Special Court under
Section 28(1) of the Children Act.
CRIMINAL APPLICATION NO. 354 OF 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Kum. Shraddha Meghshyam Velhal Vs. State of Maharashtra
Dated; 3 July, 2013
CORAM: MRS. ROSHAN DALVI, J.
The applicant is the complainant in a case under the
Protection of Children from Sexual Offences Act, 2012 (the Children Act).
Upon her complaint the accused was produced by Nizampura Police
Station before the Court of learned J.M.F.C., Bhiwandi for remand. The
applicant made an application taking exception to the remand proceeding
before the learned Magistrate on the ground that only the special Court
constituted under the Children Act would have jurisdiction to take remand
and pass any order under the Act. That application came to be rejected
under the impugned order by the learned Magistrate on the ground that
the act of remand was a precognizance stage when the learned Magistrate
was not barred from passing any order.
2.
It is the case of the applicant that all the applications upon her
complaint must be made only before the Children Court and consequently
the first production of the accused for remand also must be before the
Children Court as that Court alone is empowered to take cognizance of the
offence even before the case is being committed to it for trial by any
Magistrate.
The provisions of the Children Act must be first seen. The
3.
statement of the objections and reasons under the Children Act dated
19.06.2012 shows reasons for the enactment of the Act thus:
To protect children from offences of sexual assault, sexual harassment
and pornography and provide for establishment of Special Courts for
trial of such offences and for matters connected therewith or
incidental thereto.
Para 4 of the said statement further sets out what the proposed
legislation would contemplate. Para 4 runs thus:
4.
4. It is, therefore, proposed to enact a self contained comprehensive
legislation inter alia to provide for protection of children from the
offences of sexual assault, sexual harassment and pornography with
due regard for safeguarding the interest and well being of the child at
every stage of the judicial process, incorporating childfriendly
procedures for reporting, recording of evidence, investigation and trial
of offences and provision for establishment of Special Courts for
speedy trial of such offences.
All matters relating to the offences as also matters connected
therewith would be within the jurisdiction of the Court constituted under
the Act. Similarly the execution of the Act as contemplated in the
legislation is required to be as per the legislation at all stages of the judicial
process. The very first stage of the judicial process which requires the
accused to be produced before the learned Magistrate for obtaining remand
within 24 hours of his arrest would be included in the expression “every
stage” of the proceeding.
5.
The Children Act sets out specific enjoinments of the
Government and the police for its enforcement in an ideal set up. Sections
43 & 24 are illustrations in that behalf. They run thus:
43. Public awareness about Act. The Central government and
every State Government, shall take all measures to ensure that
(a) the provisions of this Act are given wide publicity through
media including the television, radio and the print media at regular
intervals to make the general public, children as well as their parents
and guardians aware of the provisions of this Act;
(b) the officers of the Central Government and the State
Governments and other concerned persons (including the police
officers) are imparted periodic training on the matters relating to the
implementation of the provisions of the Act.
6.
24. Recording of statement of a child. (1) The statement of the
child shall be recorded at the residence of the child or at a place
where he usually resides or at the place of his choice and as far as
practicable by a woman police officer not below the rank of sub
inspector.
(2) The police officer while recording the statement of the
child shall not be in uniform.
(3) The police officer making the investigation, shall, while
examining the child, ensure that at no point of time the child come in
the contact in any way with the accused.
(4) No child shall be detained in the police station in the night
for any reason.
(5) the police officer shall ensure that the identity of the child
is protected from the public media, unless otherwise directed by the
Special Court in the interest of the child.
Section 43(a) of the Act enjoins the Central Government to
raise public awareness of the Act and Section 43(b) of the Act requires the
Central and the State Governments to impart training to all the persons
concerned with the Act including police officers. The stages contemplated
in para 4 of the statement of the objects and reasons aforesaid includes the
stage of investigation which is to be carried out by police officers. The
childfriendly procedures for reporting would also include the functions of
police officers. Hence the police officers made aware of the provisions of
the special legislation and specially sensitized are expected to investigate
those cases.
7.
Section 24 of the Act shows the specific procedure to be
followed for recording the statement of the child during investigation. The
police officer who is trained and sensitized in the special procedure is
required to investigate the case.
The complaint, of course, would be made to the relevant
8.
police station having territorial jurisdiction. Upon the receipt of the
complaint, the provisions of Section 24 would have to be followed by the
police officer. It is for that purpose that he is required to be trained and
sensitized in the special procedures set out under the Act specifically as per
the procedure set out therein.
9.
Once an accused is arrested upon a complaint and the judicial
process is set in motion. The Children Act which is a self contained
comprehensive legislation, would require due performance of the
obligations of all the relevant authorities under the Act for the protection of
children and the first stage of the judicial proceeding is no exception. For
that purpose the judicial officers who are also trained and sensitized in the
10.
special legislation would be required to perform their duties.
Under Section 33 of the Act the Special Court is to take
cognizance of the offences. Section 33(1) runs thus:
33. Procedure and powers of Special Court. (1) A Special Court
may take cognizance of any offence, without the accused being
committed to it for trial, upon receiving a complaint of facts which
constitute such offence, or upon a police report of such facts.
11.
The Special Court is required to act under the Act following
the special procedure from the very inception of the criminal prosecution
which may be upon a private complaint or a police report. Its purpose is
for safeguarding the interest of the child at every stage. It is required to act
even without the accused being committed to it for trial. It is required to
take cognizance of the offence and proceed with the stage of inquiry and
trial. The very first stage of the trial which is the production of the accused
for remand is no exception set out in the legislation. Hence it is the
enjoinment and the duty of the police officer to produce the accused before
the Court itself employing the special procedures under the Act for offences
My attention has been drawn to the fact that the provisions of
12.
under the Act.
Section 5(1) of the Prevention of Corruption Act, 1988 and Section 36(1)
(d) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are
identical to Section 33(1) of the Children Act with regard to taking
cognizance of cases. The relevant parts of those Sections runs thus:
5.
Procedure and powers of special Judge. (1) A special Judge
may take cognizance of offences without the accused being committed
to him for trial.....
13.
36A. Offences triable by Special Courts. (1)........
(a) ..........
(b) ..........
(c) ..........
(d) a Special Court may, upon perusal of police report of the
facts constituting an offence under this Act or upon complaint made
by an officer of the Central Government or a State Government
authorised in this behalf, take cognizance of that offence without the
accused being committed to it for trial.
Indeed under those legislations Special Court has been
created. The accused are produced before the Special Court for remand
from the date of the arrest. The inquiry and the trial proceeds thereafter.
The Special Court would take cognizance of the offence upon a report
being submitted in that behalf but the report would be submitted upon the
investigation ordered for which police custody may or may not be granted
for specific periods of time by that Court. All this is contemplated to be
done by the Special Court under each of the legislations including the
Children Act.
14.
It may be mentioned that under the specific express provision
contained in Section 36A(1)(b) of the NDPS Act a person suspected of an
offence committed under that Act may be produced before a Magistrate,
for the period specified in that provision. Section 36A(1)(b) runs thus:
36A. Offences triable by Special Courts. (1) .....
(a) .......
(b) where a person accused of or suspected of the commission
of an offence under this Act is forwarded to a Magistrate under sub
section (2) or subsection (2A) of section 167 of the Code of
Criminal procedure, 1973, such Magistrate may authorise the
detention of such person in such custody as he thinks fit for a period
not exceeding fifteen days in the whole where such Magistrate is a
Judicial Magistrate and seven days in the whole where such
Magistrate is an Executive Magistrate:
Provided that in cases which are triable by the Special Court
where such Magistrate considers
(i) when such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of
detention authorised by him,
that the detention of such person is unnecessary, he shall order such
person to be forwarded to the Special Court having jurisdiction.
who is expressly allowed to authorise the detention of such accused person
There is no analogous provision in the Children Act. Hence no magistrate
can pass any order for remand to produce any accused person before him
after a specified number of days of police custody or release him upon an
observation that his detention is unnecessary. The Magistrate would be
duty bound to direct the relevant police officer to produce any person
suspected or accused of any offence under the Children Act before the
relevant Court of Session established in the District as Special Court under
Section 28(1) of the Children Act.
15.
The Court is informed that upon the Children Act being
enacted and the Children Court being constituted the learned Principal
District and Sessions Judge, Thane issued a circular/order dated
22.02.2013 which is brought to the notice of the learned Magistrate which
he has considered to pass the impugned order. The circular/order of the
learned District Judge shows that the Special Court is constituted and
hence the chargesheet for the offences filed under the Children Act before
bail applications will be dealt with by the Children Court.
It is construed by the learned Magistrate that this contemplates
16.
the learned Magistrate shall be committed to the Children Court and all the
that until the chargesheet is filed and the cognizance is to be taken of the
offences, the jurisdiction of all the Magistrates' Courts is not barred.
17.
A reading of the Children Act shows otherwise. The
circular/order with regard to the committal of the cases itself is
misconceived as the Children Court is required to take cognizance of the
offence without the committal of the case. Besides, such circular, which
has no binding force as being only an Administrative order, cannot be
construed to mean conferment of jurisdiction upon the Magistrate's Court
to pass orders before cognizance is taken of the offence which would be
within the Children Act in respect of any accused charged thereunder. All
that it may show is that all the cases already filed in the Courts of the
learned Magistrates prior to the coming into force of the Act would be
required to be committed by the learned Magistrate upon the issue of
circular so that the relevant Children Court upon the constitution of the
Children Court which would take cognizance of the offence not filed before
it. For all the offences which take place after the enactment of the Children
Act, or the constitution of the Children Court the Special Court would
proceed even without the accused being committed to it for trial and would
carry out its functions under the Act at “every stage” of the judicial process.
18.
It must be appreciated that only the Court which can take
cognizance of the offence can perform the functions even at the pre
cognizance stage as there cannot be more than one court exercising
jurisdiction in respect of a single criminal prosecution. A Magistrate not
having territorial jurisdiction in a case cannot take cognizance of the case.
He would, therefore, not also remand an accused person produced before
him. Consequently the observation of the learned Magistrate in the
impugned order that because that was the precognizance stage he has
19.
jurisdiction appears to be misconceived.
A reading of the entire Children Act shows that the only
function of a Magistrate under that Act is to record the statement of a
child, if required, under Section 164 of the Cr.P
.C. Sections 25 & 26 in that
behalf run thus:
25. Recording of statement of a child by Magistrate. (1) If the
statement of the child is being recorded under section 164 of the Code
of Criminal Procedure, 1973 (2 of 1974) (herein referred to as the
Code), the Magistrate recording such statement shall,
notwithstanding anything contained therein, record the statement as
spoken by the child:
Provided that the provisions contained in the first proviso to
subsection (1) of section 164 of the Code shall, so far it permits the
presence of the advocate for the accused shall not apply in this case.
(2) The magistrate shall provide to the child and his parents
or his representative, a copy of the document specified under section
207 of the Code, upon the final report being filed by the police under
section 173 of that Code.
26. Additional provisions regarding statement to be
recorded. (1) The Magistrate or the police officer, as the case may
be, shall record the statement as spoken by the child in the presence
of the parents of the child or any other person in whom the child has
trust or confidence.
(2) Wherever necessary, the Magistrate or the police officer, as
the case may be, may take the assistance of a translator or an
interpreter, having such qualifications, experience and on payment of
such fees as may be prescribed, while recording the statement of the
child.
(3) The Magistrate or the police officer, as the case may be,
may, in the case of a child having a mental or physical disability, seek
the assistance of a special educator or any person familiar with the
manner of communication of the child or an expert in that field,
having such qualifications, experience and on payment of such fees as
may be prescribed, to record the statement of the child.
(4) Wherever possible, the Magistrate or the police officer, as
the case may be, shall ensure that the statement of the child is also
recorded by audiovideo electronic means.
These provisions lay down the requirements of such recording. A copy of
such statement is all that is required to be provided by the Magistrate to
the child and his/her parents when the final report is filed under Section
173 of the Cr.P
.C. Though Section 25(2) of the Children Act specifies that
the Magistrate shall provide such copy, it does not thereby signify that the
final report therefore must be filed before the Court of such Magistrate.
The concerned Magistrate would sufficiently comply with the provision of
law under Section 25(2) of the Children Act by having the copy of the
report sent to the Children Court for being served on the child and the
parents through the concerned Investigating Officer who is required to file
the final report before the Special Court under the Act. That would be the
Court taking cognizance of the offence, which is the Children Court. The
requirement of supplying such copy would not confer jurisdiction,
otherwise conferred upon the Special Court, to the Court of any Magistrate.
Other than performing that duty as statutorily enjoined, the Magistrate has
no jurisdiction to do any other thing under the Children Act.
20.
It is, therefore, imperative for all police officers to produce the
accused for remand before the Children Court and not before the Court of
the learned Magistrates. It is further imperative for all Magistrates to guide
the police officers who erroneously produce the accused for remand before
them to the Children Court. The very production of the accused is seen to
have been faulty. The observation of the learned Magistrate in the
impugned order about the interpretation of Section 33(1) of the Children
Act and the exercise of powers by him under the Cr.P is seen to be
.C.
incorrect. The Special Court under the Children Act shall act at every stage
of the judicial process. Once the judicial process commences the Special
Court alone would take cognizance of the offence. Hence all the pre
21.
cognizance requisites must be performed in that Court.
The impugned order of rejection of the application of the
applicant/original complainant by assuming jurisdiction in view of the
circular of the learned District Judge is seen to be erroneous and is
accordingly set aside.
22.
The impugned order is dated 09.03.2012. The Court is
informed that police custody was granted at the relevant time. The
investigation in the case must have proceeded thereupon. All further
proceedings shall be continued before the relevant Special Court under the
23.
Children Act.
However it is clarified that any remand orders passed in Courts
of other Magistrates until now shall not be declared invalid in view of the
applicability of the Criminal Procedure Code, 1973 to proceedings under
the Children Act and the powers of the Magistrate for remand therein.
The Criminal Application is disposed of accordingly.
24.
25.
The Registrar (Judicial) of this Court shall bring this order to
the notice of the Courts of all Magistrates and all Children Courts in the
State of Maharashtra.
(ROSHAN DALVI, J.)
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