Saturday, 20 June 2020

Whether juvenile accused can claim anticipatory bail in an offence under SC & ST Atrocities Act?

In the light of the above, 1 am of the view that the provisions of Section 12 of the Act of 2000 shall have an overriding effect over the provisions of Section 18 of the Act of 1989 and a Juvenile who is brought before the Board or "appears" even by means of an application for being granting anticipatory bail, then notwithstanding the pro visions of Section 18 of the Act of 1989 could be dealt with by the Board/Court (in the light of Section 6(2) of the Act of 2000) as Section 12 is a special provision meant exclusively for juveniles as such the exclusion of Section 438, Cr.P.C. under Section 18 of the Act of 1989 shall not apply in the case of a juvenile who is to be governed by the Act of 2000 and dealt as such.

18. I am, therefore, of the view that in the case of a 'juvenile', as defined under Section 2(k) of the Juvenile Justice {Care and Protection of Children) Act. 2000, the exclusion of the provisions of Section 438, Cr.P.C. as provided under Section 18 of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 shall not apply.

19. Accordingly, this matter is remanded to the learned Sessions Judge to first determine whether the accused petitioner is a juvenile, as defined under Section 2(k) of the Act of 2000. If it is found that the accused petitioner is a juvenile, then in exercise of the powers under Section 6(2) of the Act of 2000 deal with the application of the accused petitioners provided under Section 12 of the Act of 2000. The accused petitioner is directed to appear before the learned Sessions Judge in this behalf on 14-5-2007. The accused petitioner shall not be arrested till the disposal of his application by the learned Sessions Judge.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

Decided On: 09.05.2007

Tara Chand  Vs.State of Rajasthan

Hon'ble Judges/Coram:
Dalip Singh, J.

Citations: 2007 CriLJ 3047, RLW 2008 (2) Raj 1013


1. This is an application under Section 438. Cr.P.C. filed by the petitioner who has contended that he is a juvenile as defined under the Juvenile Justice (Care and Protection of Children) Act, 2000 against whom a case under Sections 341, 354, IPC and under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. 1989 has been registered.

2. It is contended that Special Judge while dealing with the bail application under Section 438, Cr. PC. in the order dated 1-5-2007 in para 6 has noticed the fact that the date of birth of the accused petitioner, as per the certificate of the school is 1-2-1990, according to which the accused petitioner is below 18 years of age and, there fore, a juvenile, as defined under Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000.

3. In the facts and circumstances, therefore, it is submitted that under Sub-section (2) of Section 6 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the Act of 2000"), the learned Sessions Judge before whom the matter came up had the power to deal with the case of the accused petitioner in terms of Sub-section (2) of Section 6 under the provisions of the Act.

4. In view of the above, learned Counsel for the petitioner submits that the learned Sessions Judge may be directed to consider the case of the accused petitioner in terms of the Act of 2000.

5. The learned Sessions Judge, however, from the order, it appears was of the view that in terms of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act of 1989") could not entertain this application under Section 438, Cr.P.C. as the case under Sections 3(1)(xi) of the Act of 1989 along with Section 341 and 354, IPC has also been registered against the accused petitioner.

6. I have perused the impugned order passed by the learned Court below. The provisions of Section 6 of the Act of 2000 read as follows:

6. Powers of Juvenile Justice B Foard. - (1) Where a Board has been constituted for any district or a group of districts, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.

(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.

7. A perusal of the above provisions goes to show that "notwithstanding anything contained in any other law for the time being in force" the Board, under Sub-section (1) and the High Court or the Court of Session may also exercise the powers conferred upon the Board in relation to a juvenile.

8. "Juvenile" has been defined under Section 2(k) of the Act of 2000 to mean "a person who has not completed eighteenth years of age". In the instant case, even from the order of the learned Court below, it appears that material had been produced showing the date of birth of the accused as 1-2-1990, which if found correct, would make the age of the accused as less than 18 years and hence, a "Juvenile", as defined under the Act of 2000.

9. Section 12 of the Act of 2000 (Act No. 56 of 2000), reads as under:

12. Bail to juvenile. - (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice.



10. A look at the above provisions goes to show that it deals with the situation (a) when a juvenile is arrested, or (b) when he is detained; or (c) he appears or is brought before a Board, then notwithstanding any thing contained in (i) the Code of Criminal Procedure; or (ii) in any other law for the time being in force, such person shall be released on bail. Thus, the provisions of Section 12 have an overriding effect over the provisions contained not only in the Code but over all other laws in force. It also takes care of the situation in which the case of a juvenile comes up before the Board (High Court/Court of Session) (i) after arrest; or (ii) in detention; or (iii) appears himself or is brought before the Board, then it is mandatory for the Board except in the circum stances enumerated in Section 12 on the Board being satisfied, to be released on bail.

11. As in the instant case, where a juvenile moves an application for being released on anticipatory bail, the case would be covered by the language "appears before...the Board" and his application under Section 438, Cr.P.C. would be maintainable.

12. However, having held so, in the instant case, as has been noticed by the learned Court below, the case against the accused petitioner has been registered under Section 3(1)(xi) of the Act of 1989 also in addition to Sections 341 and 354, IPC. The learned Sessions Judge has held that in terms of Section 18 of the Act, 1989, the application under Section 438, Cr.P.C. is not maintainable in the case of an accused against whom a case under the Act of 1989 has been registered.

13. Section 18 of the Act of 1989, reads as follows:

18. Section 438 of the Code not to apply to persons committing an offence under the Act. Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
14. A look at the above provision goes to show that the applicability of the provision of Section 438, Cr.P.C. has been excluded. However, unlike Sections 6 and 12 of the Act of 2000 relating to Juvenile, the words "or any other law for the time being in force" are conspicuous by their absence. Thus, the subsequent central legislation of the year 2000 enacted specially in relation to Juvenile after a review of the Juvenile Act, 1986, and more particularly Section 12 thereof in my view would have an overriding effect on Section 18 of the Act of 1989. The statement of objections and reasons of the Act of 2000, reads as follows:

Statement of Objects and Reasons. - A review of the working of the Juvenile Act, 1986 (53 of 1985) would indicate that much greater attention is required to be given to children in conflict with law or those in need of care and protection. The justice system as available for adults is not considered suitable for being applied to a juvenile or the child or any one on their behalf including the police, voluntary organisations, social workers, or parents and guardians, throughout the country. There is also an urgent need for creating adequate infrastructure necessary for the implementation of the proposed legislation with a larger involvement of informal systems specially the family, the voluntary organisations and the community.

2. In this context, the following further proposals have been made-

(i) to lay down the basic principles for administering justice to a juvenile or the child in the Bill;

(ii) to make the juvenile system meant for a juvenile or the child more appreciative of the developmental needs in comparison to criminal justice system as applicable to adults;

(iii) to bring the juvenile law in conformity with the United Convention on the Rights of the Child;

(iv) to prescribe a uniform age of eighteen year for both boys and girls;

(v) to ensure speedy disposal of cases by the authorities envisaged under this Bill regarding juvenile or the child within a time limit of four months;

(vi) to spell out the role of the State as a facilitator rather than doer by involving voluntary organisations and local bodies in the implementation of the proposed legislation;

(vii) to create special juvenile police units with a humane approach through sensitization and training of police personnel;

(viii) to enable increased accessibility to a juvenile or the child by establishing Juvenile Justice Boards and Chief Welfare Committees and Homes in each district or group of districts;

(ix) to minimise the stigma and in keeping with the developmental needs of the juvenile or the child, to separate the Bill into two parts-one for juveniles in conflict with law and the other for the juvenile or the child in need of care and protection;

(x) to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and aftercare of abandoned, destitute, neglected and delinquent juvenile and child.

15. It is with these objectives which are in consonance with the resolution of the United Nations adopted at the Convention on the Rights of the Child on 20th November, 1989 which was ratified by the Government of India on 11th December. 1992 that the present Act of 2000 (Act 56 of 2000) was enacted by the Parliament having an overriding effect on all existing on which would include the Act of 1989 as well as laid down in Sections 6 and 12 of the Act of 2000 in so far as juvenile persons are concerned.

16. I am of the view that Section 12 of the Act of 2000, is overriding in nature, inasmuch as, it provides that whenever a juvenile is arrested, detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any know criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. Thus, the Act of 2000 which is an Act, as per the aims and objects to consolidate and amend the law relating to "juvenile in conflict with law" and "children in need of care and protection", by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this Act. The Legislature has enacted the aforesaid Act of 2000 providing special procedure for dealing with juvenile.

17. In the light of the above, 1 am of the view that the provisions of Section 12 of the Act of 2000 shall have an overriding effect over the provisions of Section 18 of the Act of 1989 and a Juvenile who is brought before the Board or "appears" even by means of an application for being granting anticipatory bail, then notwithstanding the pro visions of Section 18 of the Act of 1989 could be dealt with by the Board/Court (in the light of Section 6(2) of the Act of 2000) as Section 12 is a special provision meant exclusively for juveniles as such the exclusion of Section 438, Cr.P.C. under Section 18 of the Act of 1989 shall not apply in the case of a juvenile who is to be governed by the Act of 2000 and dealt as such.

18. I am, therefore, of the view that in the case of a 'juvenile', as defined under Section 2(k) of the Juvenile Justice {Care and Protection of Children) Act. 2000, the exclusion of the provisions of Section 438, Cr.P.C. as provided under Section 18 of the Schedule Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 shall not apply.

19. Accordingly, this matter is remanded to the learned Sessions Judge to first determine whether the accused petitioner is a juvenile, as defined under Section 2(k) of the Act of 2000. If it is found that the accused petitioner is a juvenile, then in exercise of the powers under Section 6(2) of the Act of 2000 deal with the application of the accused petitioners provided under Section 12 of the Act of 2000. The accused petitioner is directed to appear before the learned Sessions Judge in this behalf on 14-5-2007. The accused petitioner shall not be arrested till the disposal of his application by the learned Sessions Judge.

Accordingly, the bail application filed under Section 438, Cr.P.C. by the accused petitioner Tarachand son of Shri Rekharam stands disposed of, as above.




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