Kidnapping of Child a Bailable offence under IPC becomes Non-Bailable under JJ Act A discussion by Rakesh Kumar ingh !!!!!!!!!!!!!!!!!!!!
In the present paper, we will discuss the effect of newly enacted Juvenile Justice (Care and Protect Protection ion of Childr Children) en) Act, 2015 2015 vis a vis offenc offences es related related to idnap idnappin pin! ! and a"ducti a"duction on as envisa!ed in IPC, 1#$0% &e now that idnappin! of a child "elow certain a!e (different for 'ale fe'ale) fro' lawful !uardian is an offence punisha"le upto years i'prison'ent "ut is a "aila"le offence% Pri'e issue herein is whether the enact'ent of new JJ Act which covers every persons under 1# years of a!e irrespective of !ender affects the nature of offence of idnappin!% A purposive purposive readin! readin! of JJ Act will !o to show that it really affects the idnappin! idnappin! provisions provisions of IPC on crucial aspects%
2%
*here *here are are so' so'ee prov provisi ision onss of JJ JJ Act Act suc such h as +ect +ectio ion# n#-, -, #5, #5, #$ #$ whic which h need need con consid sidera erati tion on%%
+ection#- deals with idnappin! of child and reads as under.
/or the purposes of this Act, the provisions of sections 5 to $ of the Indian Penal Code, shall 'utatis 'utandis apply to a child or a 'inor who is under the a!e of ei!hteen years and all the provisions shall "e construed accordin!ly3%
%
*he *he issue issue is is whet whethe herr the the sectio section n only only ref refers ers to to the the prov provisi ision onss of IPC IPC rela relate ted d to id idna napp ppin in! ! or
in reality creates an offence% &e have to "ear in 'ind that JJ Act is not an a'endin! law and also it nowhere clai's that it has "een enacted with one of the purposes of a'endin! any law% *herefore there cannot "e any dou"t that +ection#- does not want to a'end the idnappin! provisions of IPC% +ection$1 and $A provide for different standards for offences in respect of 'ale and fe'ale and apply to 'ale upto 1$ years and fe'ale upto 1# years% 4eanin! there"y that if a 'ale of 1 years of a!e is re'oved fro' lawful !uardian, the act shall not "e treated as idnappin!% n the other hand, +ection#- of JJ Act is !ender neutral and re'oval of 1 years old 'ale fro' lawful !uardian !uardian will also fall under +ection#-% +ection#-% &e have already accepted that +ection#+ection#- of JJ Act does not a'end the IPC% *herefore, it can "e said that "y virtue of +ection#-, differentiation "etween 'ale and fe'ale as 'ade in IPC does not !et o"literated%
-%
In +ec +ectio tion n##- of of JJ Act, fol follo lowi win! n! e6p e6pres ressio sions ns nee need d seri seriou ouss cons consid ider erati ation on.. i%
or or the the purp purpos oses es of this this Act7
Kidnapping of child becomes non-bailable" A discussion by Rakesh Kumar ingh
ii% +hall +hall 'utat 'utatis is 'utan 'utandis dis apply7 apply7 iii% All the provisions provisions shall shall "e construed construed accordin!ly accordin!ly%%
5%
8o one one wil willl dou" dou"tt that that one one of of the the purp purpos oses es of of the the JJ Act Act is is to pun punis ish h a wron wron!d !doe oerr whos whosee
activity has in so'e 'anner adversely affected a person under 1# years of a!e% *his purpose is easily supported supported "y the fact that JJ Act itself a full chapter for offences offences and penalties% penalties% 9idnappin! 9idnappin! and a"duction of any person either si'plicitor or for any other purpose will without any dou"t adversely affect that person and therefore it that person is under the a!e of 1# years, the JJ Act 'ay conte'plate a punishin! provision%
%$8ow 8ow, for for punis punishi hin! n! such such acti activi viti ties es,, the JJ Act Act inst instea ead d of idna idnapp ppin in! ! and a"du a"duct ctio ion n or its
various for' or purpose has chosen to adopt the already defined scenario availa"le in IPC and therefore has referred to +ection5 to $ IPC indicatin! that those provisions shall 'utatis 'utandis apply% &hat &hat the +ection#- has done is to enact a provision throu!h referential le!islation% &e now now that there are two types of referential referential le!islation i%e% "y reference reference and "y incorporati incorporation% on% +ection#- 'ay "e of either type "ut for the present prese nt purpose type itself is i''aterial% *ype *ype "eco'es 'aterial when in a su"se:uent su"se:uent ti'e period the referred le!islation le!islation under!oes under!oes an a'end'ent a'end'ent and a :uestion arises as to whether the a'end'ent should "e read in the law which has adopted the path of referential le!islation% ;oth types !ive different results in such situation% &e are presently not re:uired to deal with any such situation and therefore we will not discuss the differential concept of two types aforesaid and will leave that topic for so'e other paper%
%
*he thir third d e6p e6press ressio ion n /all /all the the pro provisi vision onss shal shalll "e cons constr true ued d acco accord rdin in!l !ly y3 'ay !ive !ive an
i'pression that it a'ends the provisions of IPC% ;ut the i'pression is superficial% *his phrase co'es only after the fact that the provisions of IPC have "een applied to persons under 1# years of a!e and for the purposes of JJ Act% nce it is done, those provisions of IPC will "e construed accordi accordin! n!ly ly%% Clearly Clearly,, only only while while readin readin! ! the JJ Act, Act, those those provis provision ionss need need to "e constru construed ed accordin!ly and not while readin! re adin! the IPC independently%
#%
*he *he 'ar!i 'ar!ina nall note note of the the +ecti +ection on# #- says says that that it relat relates es to 9idn 9idnap appi pin! n! and and a"duc a"ducti tion on of
child% *he aforesaid provision falls within the Chapter I< titled as other offences a!ainst children% As such, we have to accept that +ection#- creates specific offence%
%
nce nce we acce accept pt that that +ect +ectio ion n##- of JJ JJ Act Act creat creates es new new offen offence cess relat relatin in! ! to idn idnap appi pin! n! and and
Kidnapping of child becomes non-bailable" A discussion by Rakesh Kumar ingh
a"duction of a person under 1# years of a!e irrespective of !ender, we 'ay proceed further to note the nature of offences% ffences are classified in section#$ which reads as under.
/#$% /#$% (1) (1) &her &heree an offe offenc ncee unde underr this this Act is puni punish sha" a"le le with with i'prison'ent for a ter' 'ore than seven years, then, such offence shall "e co!ni=a"le, non"aila"le and tria"le "y a Children>s Court%
(2) &here an offence under this Act is punisha"le with i'prison'ent for a ter' of three years and a"ove, "ut not 'ore than seven years, then, such offence shall "e co!ni=a"le, non"aila"le and tria"le "y a 4a!istrate of irst Class%
() &here an offence, under this Act, is punisha"le with i'prison'ent for less than three years or with fine only, then, such offence shall "e nonco!ni=a"le, "aila"le and tria"le "y any 4a!istrate3%
10%
Appare Apparently ntly,, the the aforesa aforesaid id is "ased "ased upon upon the the part2 part2 of the the first first schedu schedule le appen appended ded to CrPC% CrPC% It
'aes classification on the "asis of i'prison'ent and first cate!ory is less than years, second cate!ory is years and upto years and third cate!ory is 'ore than years% 8ow, due to +ection#and #$, idnappin! and a"duction of a person under 1# years of a!e will "e !overned as under.
l# l# No# ec ectio tion of
Court $hich $ill try
Bailable or not
IPC %or IPC
%or JJ Act
%or IPC
%or JJ Act
;aila"le
8on"aila"le
1%
$
4a!istrate
4a!istrate
2%
$A
4a!istrate
Children?s court
8on"aila"le
8on"aila"le
+essions court
Children?s court
8on"aila"le
8on"aila"le
%
$-
+essions court
Children?s court
8on"aila"le
8on"aila"le
-%
$-A
+essions court
Children?s court
8on"aila"le
8on"aila"le
5%
$5
4a!istrate
8on"aila"le
8on"aila"le
%$$$
+essions court
Children?s court
8on"aila"le
8on"aila"le
%
$$A
+essions court
Children?s court
8on"aila"le
8on"aila"le
#%
$$;
+essions court
Children?s court
8on"aila"le
8on"aila"le
%
$
+essions court
Children?s court
8on"aila"le
8on"aila"le
4a!istrate
Kidnapping of child becomes non-bailable" A discussion by Rakesh Kumar ingh
10%
11% 11%
$
4a!istrate
4a!istrate
8on"aila"le
8on"aila"le
At this this sta!e sta!e,, anoth another er prov provis isio ion n of JJ Act Act need needss to "e note noted% d% It is +ect +ectio ion# n#5 5 and it it reads reads as
under. /#5% &hoever co''its any of the offences referred to in this Chapter on any child who is disa"led as so certified "y a 'edical 'edical practitioner, practitioner, then, such person shall "e lia"le to twice the penalty provided for such offe offenc nce% e% @6pl @6plan anat atio ion% n% or or the the purp purpos oses es of this this Act, ct, the the ter' ter' /disa"ility3 shall have the sa'e 'eanin! as assi!ned to it under clause (i) of section 2 of the Persons with isa"ilities(@:ual pportunities, Protection of Bi!hts and ull Participation) Act, 153% 12% 12%
Cert Certai ainl nly y, in case case of a disa disa"l "led ed child child,, puni punish sh'e 'ent nt is twic twicee the the nor' nor'al al :uant :uantu' u'%% It will will
definitely create so'e chan!es% ;e it noted that IPC does not have any prescription% If we see the aforesaid ta"le, we will find that so far the nature of offences is concerned, all the aforesaid offences are non"aila"le for the purposes of JJ Act% *herefore, there will "e no chan!e in respect of a disa"led child% owever, there are three offences i%e% $, $5 $ which are tria"le "y a 4a!istrate% 8ow, in respect of a disa"led child, the offences under +ection$, $5 $ will "eco'e punisha"le upto 1- years (twice (twic e the !eneral :uantu')% In ter's of +ection#$ of JJ Act, all offences punisha"le for 'ore than years i'prison'ent are to "e tried "y a Children?s Court% As such, if the offence descri"ed under any of the sections i%e% $, $5 $ of IPC is in respect of a disa"led person under the a!e of 1# years, the sa'e will "e a non"aila"le offence and will "e tria"le "y a Children?s Court% 1%
In the the prese present nt cont conte6t e6t,, +ecti +ection on$ $ IPC would would "e "e an interes interestin tin! ! read% read% It !oes !oes as unde under. r. /9idnappin! or a"ductin! child under ten years with intent to steal fro' its person%&hoever idnaps or a"ducts any child under the a!e of ten years with the intention of tain! dishonestly any 'ova"le property fro' the person of such child, shall "e punished with i'prison'ent of either description for a ter' which 'ay e6tend to seven years, and shall also "e lia"le to fine3%
1-%
8ow, 8ow, if if we appl apply y +ectio +ection# n#- JJ Act Act to the the afore aforesaid said,, we will will find find that that +ectio +ection n$ $ is is to apply apply
to any child or 'inor under 1# years of a!e and for the purposes of JJ Act, +ection$ has to "e Kidnapping of child becomes non-bailable" A discussion by Rakesh Kumar ingh
construed accordin!ly% As such, instead of 10 years, +ection$ has to "e construed as if it applies to every person under 1# years of a!e% *he section "ein! already indicated as non"aila"le and tria"le "y 4a!istrate, the sa'e does not contradict the classification of +ection#
%$15% 15%
*he *he aforesa aforesaid id analy analysis sis show showss that the the JJ Act Act has si!ni si!nifi fican cantly tly i'pr i'prov oved ed the the provi provisio sions ns of
IPC related to idnappin! and a"duction throu!h referential le!islation in followin! 'anner.
i%
Irres Irrespe pecti ctive ve of !end !ender er,, if any any person person under under 1# year yearss of a!e is idn idnap appe ped d fro' fro' lawfu lawfull !uardian, the act will "e punisha"le whereas for IPC, the act is not punisha"le if done a!ainst a 'ale of 'ore than 1$ years of a!e7
ii% *he idnappi idnappin! n! aforesaid aforesaid "eco'es "eco'es non"aila"l non"aila"lee whereas it is "aila"le "aila"le under under IPC7 iii% 9idnappin 9idnappin! ! of a person under under 1# years of a!e for "e!!in! "eco'es "eco'es tria"le "y a Children?s Court whereas in IPC, the sa'e is tria"le "y a 4a!istrate7 iv% If such person is disa"led, disa"led, the the act will "e punisha"le punisha"le with twice the nor'al nor'al :uantu'7 :uantu'7 v% In case of disa" disa"le led d chil child d unde underr 1# years years of a!e, a!e, the act afor aforesa esaid id "eco' "eco'es es tria"l tria"lee "y a Children?s Court whereas in IPC there is no such differentiation on the !round of disa"ility7 vi% 9idnappin!Da"duction with intention to steal fro' person person shall "e punisha"le even in respect of a child under 1# years of a!e whereas the IPC only covers a child upto 10 years% EEEEEEEEEEEEEEE
Kidnapping of child becomes non-bailable" A discussion by Rakesh Kumar ingh