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High Court Of Rajasthan
Judgename : DALIP SINGH
TARA CHAND - Appellant
Versus
STATE OF RAJASTHAN - Respondent
Cri. Misc. Bail Appln 3042 Of 2007
Decided On : 05/09/2007
u/s 341, 354 IPC and u/s 3(1)(xi) of SC and ST Act—Sessions Court rejected bail application on a view that Section 18 of SC and ST Act prevented applicability of Section 438 Cr.P.C.—Whether applicability of Section 438 Cr.P.C. was excluded by Section 18 of SC and ST Act in a case of Juvenile)? No.
Held: 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. (Para 14)
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.
In the light of the above, I 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 provisions 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.
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. (Paras 16 to 18)
Result: Application disposed of
( 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 (l) (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. P. C. 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, therefore, 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 Board.-
(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
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