Third and Fourth Periodic Report on CRC - Unicef
Third and Fourth Periodic Report on CRC - Unicef
Third and Fourth Periodic Report on CRC - Unicef
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C<strong>on</strong>venti<strong>on</strong> <strong>on</strong> the Rights of the Child<br />
Hence, we are of the view that since the jurisdicti<strong>on</strong> over the offences c<strong>on</strong>tained in the special laws are not specifically<br />
excluded by inclusi<strong>on</strong> in secti<strong>on</strong> 5(3) of the Children Act, jurisdicti<strong>on</strong> over offences committed by youthful offenders will be<br />
exercised by the Juvenile Court. Had the legislature intended otherwise an amendment could easily have been incorporated<br />
in secti<strong>on</strong> 5(3) giving jurisdicti<strong>on</strong> over offences under the special laws to the respective Tribunals set up under those laws.<br />
This not having been d<strong>on</strong>e, we are of the view that the Children Act, being a special law in respect of, inter alia, trial of<br />
youthful offenders, preserves the jurisdicti<strong>on</strong> over them in respect of all offences under any law, unless specifically excluded.<br />
In this regard support may also be taken from the Indian jurisdicti<strong>on</strong>. In the case of In re: Sessi<strong>on</strong>s Judge, Kalpetta, 1995<br />
Cri.L.J. 330 a juvenile below 15 years of age was charged under secti<strong>on</strong>s 450, 376 <str<strong>on</strong>g>and</str<strong>on</strong>g> 506(ii) of the (Indian) Penal Code<br />
<str<strong>on</strong>g>and</str<strong>on</strong>g> secti<strong>on</strong> 3(1)(xii) of the Scheduled Castes <str<strong>on</strong>g>and</str<strong>on</strong>g> Scheduled Tribes (Preventi<strong>on</strong> of Atrocities) Act, 1989. It appears from the<br />
decisi<strong>on</strong> that, "Secti<strong>on</strong> 20 of the 1989 Act states that save as otherwise provided in the Act, the provisi<strong>on</strong>s of the Act shall<br />
have effect notwithst<str<strong>on</strong>g>and</str<strong>on</strong>g>ing anything inc<strong>on</strong>sistent therewith c<strong>on</strong>tained in any other law for the time being in force…." The<br />
questi<strong>on</strong> posed <strong>on</strong> reference by the Sessi<strong>on</strong>s Judge to the High Court was whether this last noted provisi<strong>on</strong> would override<br />
the provisi<strong>on</strong>s of the Juvenile Justice Act, 1986 which states that a juvenile as defined in the 1986 Act who has been brought<br />
before the Sessi<strong>on</strong>s Court can <strong>on</strong>ly be proceeded against by a Juvenile Court established under the 1986 Act. The Court<br />
after deliberati<strong>on</strong> reas<strong>on</strong>ed that the 1989 Act aims at giving protecti<strong>on</strong> to the Scheduled Caste <str<strong>on</strong>g>and</str<strong>on</strong>g> Scheduled Tribe<br />
communities against whom atrocities are being committed. The Act was c<strong>on</strong>cerned with victims of the crimes <str<strong>on</strong>g>and</str<strong>on</strong>g> not the<br />
offenders. In their lordships’ view the overriding power given by secti<strong>on</strong> 20 of the Act cannot be extended to nullify the<br />
provisi<strong>on</strong>s c<strong>on</strong>tained in the 1986 Act. Their lordships c<strong>on</strong>cluded, "… it can safely be c<strong>on</strong>cluded that Parliament totally<br />
excluded the jurisdicti<strong>on</strong> of ordinary courts in relati<strong>on</strong> to juvenile offenders. In other words, jurisdicti<strong>on</strong> of all other courts<br />
established under law is ousted <str<strong>on</strong>g>and</str<strong>on</strong>g> it is solely c<strong>on</strong>ferred <strong>on</strong> Juvenile Courts in so far as juvenile offenders are c<strong>on</strong>cerned."<br />
It is our view that the same reas<strong>on</strong>ing would apply, <str<strong>on</strong>g>and</str<strong>on</strong>g> our Nari-o-Shishu Nirjatan Daman Ain would not override the<br />
provisi<strong>on</strong>s of the Children Act, 1974, so far as it relates to the prosecuti<strong>on</strong> of youthful offenders, since it encompasses the<br />
spirit of Article 28(4) of the C<strong>on</strong>stituti<strong>on</strong>.<br />
RELEVANT DATE FOR THE APPLICATION OF THE ACT<br />
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<br />
the definiti<strong>on</strong> of the Act in order to obtain the benefits thereof, it is a matter which has given rise to c<strong>on</strong>siderable litigati<strong>on</strong> in<br />
the past <str<strong>on</strong>g>and</str<strong>on</strong>g> still doubts are raised about the correctness of the interpretati<strong>on</strong> of our Courts. The definiti<strong>on</strong> secti<strong>on</strong> of the Act<br />
simply says a child is any pers<strong>on</strong> under the age of 16 years. It is not clarified whether he should be below 16 years of age<br />
at the time of commissi<strong>on</strong> of the offence or at the time of framing the charge or commencement of the trial.<br />
The Child Justice Bill (2002) of the Republic of South Africa clearly spells out the relevant date, viz<br />
"4. (1) Subject to subsecti<strong>on</strong>s (2) <str<strong>on</strong>g>and</str<strong>on</strong>g> (3), this Act applies to-<br />
(a) any pers<strong>on</strong> in the Republic of South Africa, irrespective of nati<strong>on</strong>ality, country of origin or immigrati<strong>on</strong> status, who is<br />
alleged to have committed an offence <str<strong>on</strong>g>and</str<strong>on</strong>g> who, at the time of the alleged commissi<strong>on</strong> of the offence, was under the age<br />
of 18 years;"<br />
The Child Law (1993) of the Uni<strong>on</strong> of Myanmar provides in Chapter X under Trial of Juvenile Cases:<br />
"41. The Juvenile Court:<br />
(b) have jurisdicti<strong>on</strong> <strong>on</strong>ly in respect of a child who has not attained the age of 16 years at the time of committing the<br />
offence;"<br />
On the other h<str<strong>on</strong>g>and</str<strong>on</strong>g>, The Children <str<strong>on</strong>g>and</str<strong>on</strong>g> Young Pers<strong>on</strong>s Act 1993 of Singapore provides:<br />
"Jurisdicti<strong>on</strong> of Juvenile Court<br />
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