Juvenile Justice Act | Children's Courts Empowered To Try Offences Under UAPA, Welfare Of Child Paramount: Jammu & Kashmir High Court

A bench comprising Acting Chief Justice Tashi Rabstan and Justice Puneet Gupta clarified,

“The provisions of the JJ Act will override any other provision of law for the time being in force which brings child in conflict with law and Section 1 (4) of the JJ Act speaks so in unmistakeable terms. The sanctity of non-obstante clause occurring in Section 1 (4) of the JJ Act has to be maintained and followed”

The ruling came in response to an appeal filed by the National Investigation Agency (NIA) against an order of the 3rd Additional Sessions Judge, Jammu (Designated Court under Section 22 of the NIA Act), which had referred the case of the juvenile, Abid Mushtaq Mir, to a Special Court designated under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

Mir, a juvenile from Pulwama, was accused of committing heinous offences under the UAP Act. The Juvenile Justice Board (JJB) declared him a juvenile but decided he should be tried as an adult due to the nature of the alleged crimes. The JJB forwarded the case to the Principal Sessions Judge, Jammu, citing the absence of a functional Children's Court in the Jammu province.

Subsequently, the Principal Sessions Judge transferred the case to the designated Special Court under the NIA Act. However, the NIA Court later passed an order directing that the trial be conducted by the Special Court under the POCSO Act, leading to the NIA's appeal.

The NIA, represented by Mr. Vishal Sharma, Deputy Solicitor General of India (DSGI), contended that the NIA Court had exclusive jurisdiction over offences under the UAP Act and that the POCSO Court lacked the authority to handle such cases. The agency argued that given the severity of the charges, the trial should not be transferred to the POCSO Court.

On the other hand, the counsel for the respondent, Mr. Wani Jahangir Ahmed, defended the transfer, stating that the POCSO Court was the appropriate forum given the provisions of the JJ Act and the fact that the respondent was to be tried as a juvenile.

Court's Observations:

Adjudicating the matter the Court emphasized that the Children's Court could try offences not only under the Indian Penal Code but also under any other law in force, including the UAPA. It noted that the JJ Act, which is a later statute, would take precedence over the NIA Act, and hence the trial should be conducted in accordance with the provisions of the JJ Act.

The Court highlighted that as per Section 2(20) of the JJ Act, the term “Children's Court” includes a court established under the Commissions for Protection of Child Rights Act, 2005 (CPCR Act) or a Special Court under the POCSO Act. Since no Children's Court had been established under the CPCR Act in Jammu, the POCSO Court was deemed the appropriate forum for the trial.

“The Court is of the view that Section 2 (20) of the JJ Act itself clarifies that either courts established under CPCR Act or Special Courts under POCSO Act shall be considered as Children‟s Court and where such courts have not been established the court of Sessions will try the offences under the Act. Of course, the concerned court of Sessions should have jurisdiction to try offences under the Act where the Special courts have not been established”, the bench opined.

Underscoring the sanctity of the non-obstante clause in Section 1(4) of the JJ Act, which mandates that the provisions of the JJ Act will have overriding effect over any other law where a child is involved the court said that the welfare of the child, as enshrined in the JJ Act, is to held paramount.

Rejecting the NIA's argument that the severity of the punishment under the UAPA should dictate the jurisdiction, the Court reiterated that the JJ Act, being beneficial legislation enacted after the NIA Act, must take precedence if there is any conflict between the two.

“The welfare of the child is paramount and the Act takes care of the same through special provisions and the Act being beneficial legislation cannot be by-passed and ignored in any manner. The JJ Act, 2015 being later in point of time to NIA Act, 2008, the same shall, therefore, have precedence over the later Act if there is any conflict between the provisions of two Acts”, the bench reasoned.

Dismissing the petition the High Court upheld the NIA Court's decision to transfer the trial to the POCSO Court, ruling that the Special Court designated under the POCSO Act has the jurisdiction to try the case.

Case Title: National Investigation Agency Vs Abid Mushtaq Mir

Citation: 2024 LiveLaw (JKL) 229

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