Third and Fourth Periodic Report on CRC - Unicef

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<strong>Third</strong> <strong>and</strong> <strong>Fourth</strong> <strong>Periodic</strong> <strong>Report</strong> "66. Presumption <strong>and</strong> determination of age.-(1) Whenever a person whether charged with an offence or not, is brought before any criminal Court otherwise than for the purpose of giving evidence, <strong>and</strong> it appears to the Court that he is a child, the Court shall make an inquiry as to the age of that person <strong>and</strong>, for that purpose, shall take such evidence as may be forthcoming at the hearing of the case, <strong>and</strong> shall record a finding thereon, stating his age as nearly as may be." This section is, therefore the first <strong>and</strong> foremost procedural consideration when any criminal court is faced with a person brought before it, who appears to the Court to be a child. It comes even before the consideration of any offence, whether charged or not. In our view the m<strong>and</strong>ate of the section is indicative of the need to establish jurisdiction of the Court over the accused even before he is charged with any offence. It has been held in the Monir Hossain case (supra) referring to the Indian case of Sheela Barse <strong>and</strong> another vs The Union of India, AIR (1986) SC 1773 <strong>and</strong> also the case of Baktiar Hossain (supra) that when an accused claims to be below 16 years of age a duty is cast upon the Court to direct an enquiry to satisfy itself as to whether the accused is a child below 16 years of age on the day of framing charges against him. After ascertaining age, which Court? The case of Baktiar Hossain (supra) alleged an offence under section 19(a) <strong>and</strong> (f) Arms Act, which is included in the Schedule to the Special Powers Act, 1974 [Act XIX of 1974], which came into force on 9th February, 1974, <strong>and</strong> would be exclusively triable by the Special Tribunal. In that case the High Court hearing the matter upon a revisional application, sent the case on rem<strong>and</strong> directing that the age be determined on the basis of section 66 (1) of the Act <strong>and</strong> to, ‘send the accused petitioner to the Juvenile Court if he is found below 16 at the time of framing of the charge. If he is found to be 16 years of age the trial Court will proceed with Special Tribunal Case No.12/93 <strong>and</strong> dispose it of accordingly.’ Per K.M. Hasan,J. (as he then was).’ In the later case of Monir Hossain, cited above, the offence alleged was one under section 6(1) Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995. The High Court Division heard the matter on appeal after the accused was convicted <strong>and</strong> sentenced to life imprisonment. After allowing the appeal the case was sent on rem<strong>and</strong> upon referring to the cited cases, namely Bablu, 1981 BLD 454, Baktiar Hossain (supra) <strong>and</strong> Sheela Barse (supra), <strong>and</strong> observing as follows: "In all these cited decisions it has been held that when the question of age of the accused is claimed to be below 16 years of age, a duty is cast upon the Court to direct an enquiry to satisfy itself as to whether the accused is a child below 16 years of age on the day of framing charges against him. If the Court on enquiry finds the accused to be a child, it loses the jurisdiction to try him in the usual manner. If, on the other h<strong>and</strong>, the appellant is found above 16 years of age on the day of framing of the charges, the Court or Tribunal will reject the objection <strong>and</strong> try the accused as usual." It is noted that both the cases involved offences triable by the Special Tribunal <strong>and</strong> each of the enactments, namely the Special Powers Act <strong>and</strong> the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, has a non-obstante clause in s.26(1) <strong>and</strong> s.3 respectively reserving jurisdiction exclusively to the Special Tribunal <strong>and</strong> Nari-o-Shishu Nirjatan Daman Tribunal respectively, <strong>and</strong> yet this Court directed that the case be heard by the Juvenile Court in the event that the accused is found to be below 16 years of age. The same principle was followed in the case of Md Shamim vs State, 19 BLD 542, which was a case under the Arms Act <strong>and</strong> had culminated in conviction <strong>and</strong> sentence upon trial by the Special Tribunal. The High Court Division, having found the appellant to be a child, sent the case on rem<strong>and</strong> for fresh trial by the Juvenile Court in accordance with the provision of the Children Act, 1974. The case of Shukur Ali, on the other h<strong>and</strong> observed that section 3 of the Nario-Shishu Nirjatan Daman (Bishesh Bidhan) Ain ousted the jurisdiction of any other Court. We would respectfully suggest that the jurisdiction of the Tribunal was already taken away since the jurisdiction over the offender was given to the Juvenile Court. It was first given away in section 29B of the Code of Criminal Procedure with the exception of offences punishable with death or [imprisonment] for life <strong>and</strong> then by the Children Act with the exception of offences exclusively triable by the Court of Sessions. When the Children Act came into force the Special Powers Act <strong>and</strong> the Arms Act, for example, were already in force. But the legislature did not exclude the jurisdiction of the Juvenile Court in section 5(3), although the Special Power Act contains a non-obstante clause in section 26. 152
Convention on the Rights of the Child Hence, we are of the view that since the jurisdiction over the offences contained in the special laws are not specifically excluded by inclusion in section 5(3) of the Children Act, jurisdiction over offences committed by youthful offenders will be exercised by the Juvenile Court. Had the legislature intended otherwise an amendment could easily have been incorporated in section 5(3) giving jurisdiction over offences under the special laws to the respective Tribunals set up under those laws. This not having been done, we are of the view that the Children Act, being a special law in respect of, inter alia, trial of youthful offenders, preserves the jurisdiction over them in respect of all offences under any law, unless specifically excluded. In this regard support may also be taken from the Indian jurisdiction. In the case of In re: Sessions Judge, Kalpetta, 1995 Cri.L.J. 330 a juvenile below 15 years of age was charged under sections 450, 376 <strong>and</strong> 506(ii) of the (Indian) Penal Code <strong>and</strong> section 3(1)(xii) of the Scheduled Castes <strong>and</strong> Scheduled Tribes (Prevention of Atrocities) Act, 1989. It appears from the decision that, "Section 20 of the 1989 Act states that save as otherwise provided in the Act, the provisions of the Act shall have effect notwithst<strong>and</strong>ing anything inconsistent therewith contained in any other law for the time being in force…." The question posed on reference by the Sessions Judge to the High Court was whether this last noted provision would override the provisions of the Juvenile Justice Act, 1986 which states that a juvenile as defined in the 1986 Act who has been brought before the Sessions Court can only be proceeded against by a Juvenile Court established under the 1986 Act. The Court after deliberation reasoned that the 1989 Act aims at giving protection to the Scheduled Caste <strong>and</strong> Scheduled Tribe communities against whom atrocities are being committed. The Act was concerned with victims of the crimes <strong>and</strong> not the offenders. In their lordships’ view the overriding power given by section 20 of the Act cannot be extended to nullify the provisions contained in the 1986 Act. Their lordships concluded, "… it can safely be concluded that Parliament totally excluded the jurisdiction of ordinary courts in relation to juvenile offenders. In other words, jurisdiction of all other courts established under law is ousted <strong>and</strong> it is solely conferred on Juvenile Courts in so far as juvenile offenders are concerned." It is our view that the same reasoning would apply, <strong>and</strong> our Nari-o-Shishu Nirjatan Daman Ain would not override the provisions of the Children Act, 1974, so far as it relates to the prosecution of youthful offenders, since it encompasses the spirit of Article 28(4) of the Constitution. RELEVANT DATE FOR THE APPLICATION OF THE ACT Although in the facts of the case before us it is not in issue whether or not the accused was a child/youthful offender within the definition of the Act in order to obtain the benefits thereof, it is a matter which has given rise to considerable litigation in the past <strong>and</strong> still doubts are raised about the correctness of the interpretation of our Courts. The definition section of the Act simply says a child is any person under the age of 16 years. It is not clarified whether he should be below 16 years of age at the time of commission of the offence or at the time of framing the charge or commencement of the trial. The Child Justice Bill (2002) of the Republic of South Africa clearly spells out the relevant date, viz "4. (1) Subject to subsections (2) <strong>and</strong> (3), this Act applies to- (a) any person in the Republic of South Africa, irrespective of nationality, country of origin or immigration status, who is alleged to have committed an offence <strong>and</strong> who, at the time of the alleged commission of the offence, was under the age of 18 years;" The Child Law (1993) of the Union of Myanmar provides in Chapter X under Trial of Juvenile Cases: "41. The Juvenile Court: (b) have jurisdiction only in respect of a child who has not attained the age of 16 years at the time of committing the offence;" On the other h<strong>and</strong>, The Children <strong>and</strong> Young Persons Act 1993 of Singapore provides: "Jurisdiction of Juvenile Court 153
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Third and Fourth Periodic Report on CRC - Unicef

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