2021 2 BBCJ 128 ; 2021 2 BLJ 205 ; 2021 0 CrLJ 2542 ; 2021 1 PLJR 683 ; 2021 0 Supreme(Pat) 558
IN THE HIGH COURT OF JUDICATURE AT PATNA
SUDHIR SINGH, J.
SUMIT KUMAR - Petitioner
Versus
State of Bihar - Opposite Party
CRIMINAL MISCELLANEOUS No.82844 of 2019
Decided On : 05-02-2021
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 – Code of Criminal Procedure, 1973 – Sections 439 and 440 – Bail Application – Rape of minor girl – 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 – 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 Sections15 and 18(3) of Juvenile Justice Act, 2015 – Order passed by court beyond its jurisdiction is a nullity. (Paras 11, 16, 29 and 30)
Code of Criminal Procedure, 1973 – Section 482 – Constitution of India – Article 227 – 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 – 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 – 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 – 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)
2020)2 SCC 787; 2020 (1)PLJR SC 352; Criminal Appeal No. 1597 of 2018 ; 2019 SCC OnLine Kar 1835; (2020) 1 KCCR 649; 1990 (2) PLJR 693; (2004) 12 SCC 195; (2004) 12 SCC 195; A.I.R. 1977 SC 1489; (2006)3 SCC (Cri) 245; (2013) 3 SCC 330 – Relied.
(2003) 6 SCC 675 – Partly Overruled by(2015) 5 SCC 423
Act Referred :CONSTITUTION OF INDIA : Art.227, Art.227(2), Art.227(3)CRIMINAL PROCEDURE CODE : S.439, S.440, S.482INDIAN PENAL CODE : S.376JUVENILE JUSTICE ACT : S.18(3), S.9(2), S.9(3), S.15, S.18, S.19PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT : S.6, S.34, S.34(1), S.34(2)
Cases Referred:Advocates Appeared :For the Petitioner : Mr. Devendra Kumar, Advocate.For the Opposite Party : Mr. Rajeev Nayan, A.P.P.
JUDGMENT :
1. 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.
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