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PATNA HIGH COURT
Sudhir Singh, J.
Sumit Kumar – Petitioner
versus
State of Bihar – Opp. Party
Criminal Miscellaneous No.82844 of 2019
Decided on 5.2.2021
(A) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 9 – Protection of Children from Sexual Offences Act, 2012 – Section 34 – Indian Penal Code, 1860 – Section 376 – Criminal Procedure Code, 1973 – Sections 439 and 440 – Bail Application – Rape of minor girl – Court of Additional District and Sessions Judge 1st cum-Special Court, POCSO Act, after arriving at finding that petitioner was a child on date of commission of alleged offence, was under statutory obligation as per Section 9(3) of Juvenile Justice Act to forward petitioner alongwith records of case to Board – Court below did not forward petitioner and records of case to Juvenile Justice Board, rather exceeded its jurisdiction and usurped power vested in Board under Section 15 of Act and retained matter before it and held that petitioner be tried as an adult which is in gross contravention of Sections 15 and 18(3) of Juvenile Justice Act, 2015 – Once court finds that offender was child on date of commission of offence, in that case, sentence, if any, passed by court, shall be deemed a nullity – Any order relating to a juvenile passed by any court shall have no effect in eyes of law if the same be passed in non-conformity with provisions of Juvenile Justice Act, 2015 – Order rejecting prayer for bail of petitioner by Special Court, POCSO Act, shall be deemed to have no effect – Special Courts created under special laws, gain power from various provisions contained in enactments – They cannot and should not transgress jurisdiction prescribed under special laws – An order passed by court beyond its jurisdiction is a nullity. (Paras 11 and 16)
(B) Criminal Procedure Code, 1973 – Section 482 – Constitution of India – Article 227 – Inherent powers – In addition to powers conferred under Article 227 of Constitution of India to this Court, Section 482 of Code of Criminal Procedure, preserves inherent power of High Court which can be exercised ex-debito Justitiae, i.e., for doing real and substantial justice – Legislature is not capable of contemplating all possible circumstances which may arise in future – Saving of High Court’s inherent power is designed to achieve a salutary public purpose of securing justice and to prevent abuse of process of law – It cannot be said that courts having no power to do justice or redress a wrong simply because there is no express provision in the Code – Inherent powers are in addition to powers specifically conferred by legislation. Section 482 of Cr. P.C. is self explanatory that High Courts are not merely courts of law, but also courts of justice and possess inherent powers to undo injustice – Saving of High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose that a court proceedings should not be permitted to degenerate into a weapon of harassment and persecution – Ends of justice are higher than ends of mere law though justice has got to be administered according to laws made by legislature – Self-restraint can be lifted for suo-motu exercise of inherent jurisdiction contemplated under Section 482 of Cr. P.C. as to secure ends of justice by giving effect to provisions of POCSO Act and Juvenile Justice Act. (Paras 22, 24 and 27)
(C) Protection of Children from Sexual Offences Act, 2012 – Section 6 read with Section 34 – Indian Penal Code, 1860 – Section 376 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Sections 9(3) and 12 – Criminal Procedure Code, 1973 – Sections 439 and 440 – Bail Application – Rape of minor girl – Petitioner who was a child on date of commission of alleged offence, has not been dealt with under provisions of Juvenile Justice Act, 2015, and Special Court, POCSO, while passing order, has not taken conditions envisaged under Section 12 of Juvenile Justice Act, 2015, into consideration – Order is not sustainable in eye of law, accordingly, quashed – Since petitioner is in Observation Home since 18.08.2019 and unprecedented pandemic situation due to Covid-19 is still prevailing, Special Court, POCSO Act, directed to forward petitioner forthwith to Juvenile Justice Board as per Section 9(3) of Juvenile Justice Act, so that appropriate orders may be passed by Board. (Paras 29 and 30)
Result: Issues answered.
The petitioner, Sumit Kumar, sought bail under Sections 439 and 440 CrPC in connection with Runnisaidpur P.S. Case No. 325 of 2019, registered under Section 376 IPC and Section 6 POCSO Act. (!) [5000302390002] The prosecution alleged that on 17.08.2019 around 12 P.M., the petitioner entered the victim's house where she was alone, committed rape upon her, and threatened her with a knife on her neck upon protest.[5000302390002] The petitioner has been in Observation Home, Muzaffarpur, since 18.08.2019.[5000302390003] On 01.10.2019, the Additional District Judge-Ist cum Special Court POCSO Act, Sitamarhi, inquired into the petitioner's age under Section 34 POCSO Act upon his claim of being a juvenile, determined his date of birth as 10.09.2001 (supported by school records), calculated his age as 17 years 11 months and 07 days on the date of the offence, declared him a child in conflict with law, but ordered him to be tried as an adult under the Juvenile Justice Act, 2015, and remanded him to Observation Home.[5000302390004] (!) (!) The Special Court rejected the petitioner's bail application on 14.11.2019.[5000302390006]
ORDER (CAV)
Sudhir Singh, J.—This application has been filed under Sections 439 and 440 of the Code of Criminal Procedure, for grant of bail to the petitioner, who is an accused in Runnisaidpur P.S. Case No. 325 of 2019 registered under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act.
2. The prosecution case, in brief, is that the petitioner on 17.08.2019 around 12 P.M. entered into the house of the victim (informant) where she was alone, and committed rape on her. On her protest, he threatened to kill her, with knife on her neck.
3. Learned counsel for the petitioner submitted that the petitioner has been declared juvenile by the Special Court, POCSO Act, vide order dated 01.10.2019, as his age on the alleged date of occurrence has been assessed as 17 years 11 months and 07 days. It has also been submitted that the petitioner is in the ‘Observation Home’, Muzaffarpur, since 18.08.2019.
4. A supplementary affidavit has been filed by the petitioner bringing on record the order dated 01.10.2019, passed by the learned A.D.J.-I, Sitamarhi. On 21.08.2019, a petition on behalf of the accused having been filed before the learned court below contending that on the date of the commission of the alleged occurrence, the accused had not completed eighteen years of age, thus, his case be transferred to the Juvenile Justice Board, Sitamarhi, for trial and disposal. Whereupon, the learned court below itself conducted an inquiry as prescribed under Section 34 of the POCSO Act and has determined the age of the petitioner to be 17 years 11 months and 07 days on the date of alleged occurrence, thus, declared him a ‘child in conflict with law’.
5. The relevant part of the said order dated 01.10.2019 passed by the Ist A.D.J., Sitamarhi is extracted hereunder:-
“From the record, it appears that the date of birth of the accused Sumit Kumar is 10.09.2001 (Ext. 1) which has also supported by the Xerox copy of S.L.C. of the said accused issued by the Headmaster of the Government Middle School, Bhale. Date of occurrence is 17.08.2019 and on calculation, the accused was 17 years 11 months and 07 days on the alleged date of occurrence. Thus, he appears to be more than 16 years and below 18 years, accordingly, he is declared ‘child in conflict with law’ (C.C.L.). The C.C.L. Sumit Kumar be tried as adult as per the provision of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Put up on 18.10.19, awaiting F.F. and C.C.L. Sumit Kumar is remanded back to the Jail, Sitamarhi, with a direction to the Superintendent of Jail, Sitamarhi, to send him to the ‘Observation Home’, Muzaffarpur, and also to produce him before this court on the date fixed.”
6. The petitioner moved for grant of bail before the Additional District and Sessions Judge Ist-cum-Special Court, POCSO Act, Sitamarhi, which was heard and rejected, vide order dated 14.11.2019. Thereupon, the petitioner has moved before this Court for grant of bail in connection with the said case, filing the instant application.
7. At this stage, in the facts and circumstances stated above, before delving into the merits of the case for the purpose of considering bail of the petitioner, this Court would primarily like to consider the issues involved, incidentally, in this case, which are as under:
(i) Whether the Special Court designated under POCSO Act, 2012, after determination of the age of the petitioner, thereupon, holding him ‘child in conflict with law’ was under statutory obligation to forward the child to the Juvenile Justice Board constituted under the Juvenile Justice (Care and Protection of Children) Act, 2015.
(ii) Whether the Children’s Court established under the Commission for Protection of Child Rights Act, 2005, or the Special Court, designated under POCSO Act, in absence of any order regarding preliminary assessment of a child by the Juvenile Justice Board as contemplated under sub section (3) of Section 18, of Juvenile Justice Act, 2015, can proce
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