2021 2 Crimes(HC) 107

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

IMPORTANT POINTS
(1) 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.
(2) 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.
(3) 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.

(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.

Act Referred :
CONSTITUTION OF INDIA : Art.227
CRIMINAL PROCEDURE CODE : S.439, S.440, S.482
INDIAN PENAL CODE : S.376
JUVENILE JUSTICE CARE AND PROTECTION OF CHILDREN ACT : S.9, S.9(3), S.15, S.18(3)
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT : S.34, S.6, S.12

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