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Kidnapping of Child a Bailable offence under IPC becomes Non-Bailable under Ac! A discussion by Rakesh Kumar Singh """"""""""""""""""""
In the present paper, we will discuss the effect of newly enacted Juvenile Justice (Care and Protection of Children) Act, 2015 vis a vis offences related to idnappin! and a"duction as envisa!ed in IPC, 1#$0% &e now that idnappin! of a child "elow certain a!e (different for 'ale fe'ale) fro' lawful !uardian is an offence punisha"le upto years i'prison'ent "ut is a "aila"le offence% Pri'e issue herein is whether the enact'ent of new JJ Act which covers every persons under 1# years of a!e irrespective of !ender affects the nature of offence of idnappin!% A purposive readin! of JJ Act will !o to show that it really real ly affects the idnappin! provisions of IPC on crucial aspects%
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*here are so'e provisions of JJ Act such as +ection#-, #5, #$ which need consideration%
+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%
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*he issue is whether the section only refers to the provisions of IPC related to idnappin! 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 will also fall under +ection#-% &e have already accepted that +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%
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In +ection#- of JJ Act, followin! e6pressions need serious consideration. i%
or the purposes of this Act7
Kidnapping of child becomes non-bailable: A discussion by Rakesh Kumar Singh
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ii% +hall 'utatis 'utandis apply7 iii% All the provisions shall "e construed accordin!ly%
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8o one will dou"t that one of the purposes of the JJ Act is to punish a wron!doer whose
activity has in so'e 'anner adversely affected a person pers on under 1# years of a!e% *his purpose is easily supported "y the fact that JJ Act itself a full chapter for offences and penalties% 9idnappin! and a"duction of any person either si'plicitor si'pli citor 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 punishin! such activities, the JJ Act instead of idnappin! and a"duction 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 the +ection#- has done is to enact a provision throu!h referential le!islation% &e now that there are two types of referential le!islation i%e% "y reference and "y incorporation% +ection#- 'ay "e of either type "ut for the present purpose type itself is i''aterial% *ype "eco'es 'aterial when in a su"se:uent ti'e period the referred le!islation under!oes an a'end'ent and a :uestion arises as to whether the a'end'ent should "e read i n the law which has adopted the path of referential le!islation% ;oth types !ive different res ults 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%
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*he third e6pression /all the provisions shall "e construed accordin!ly3 'ay !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 accordin!ly% Clearly, only while readin! the JJ Act, those provisions need to "e construed accordin!ly and not while readin! the IPC independently% independently%
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*he 'ar!inal note of the +ection#- says that it relates to 9idnappin! and a"duction 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%
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nce we accept that +ection#- of JJ Act creates new offences relatin! to idnappin! and
a"duction of a person under 1# years of a!e irrespective of !ender, we 'ay proceed further to note Kidnapping of child becomes non-bailable: A discussion by Rakesh Kumar Singh
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the nature of offences% ffences are classified classi fied in section#$ which reads as under.
/#$% (1) &here an offence under this Act is punisha"le with i'prison'ent for a ter' 'ore than seven years, then, such offence shall "e co!ni=a"le, non"aila"le and tria"le "y a Children>s Court%
(2) &here an offence under this Act is punisha"le with i'prison'ent for a ter' of three years and a"ove, "ut not 'ore than seven years, then, such offence shall "e co!ni=a"le, non"aila"le and tria"le "y a 4a!istrate of irst Class%
() &here an offence, under this Act, is punisha"le with i'prison'ent for less than three years or with fine only, then, such offence shall "e nonco!ni=a"le, "aila"le and tria"le "y any 4a!istrate3%
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Apparently, Apparently, the aforesaid is "ased upon the part2 of the first schedule appended to CrPC% It
'aes classification on the "asis of i'prison'ent and first cate!ory is less than years, second cate!ory is years and upto years and third cate!ory is 'ore than years% 8ow, due to +ection#and #$, idnappin! and a"duction of a person under 1# years of a!e will "e !overned as under.
Sl# No# Sec!ion of
Cour! $hich $ill !ry
Bailable or no!
IPC %or IPC
%or Ac!
%or IPC
%or Ac!
1%
$
4a!istrate
4a!istrate
;aila"le
8on"aila"le
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
4a!istrate
Kidnapping of child becomes non-bailable: A discussion by Rakesh Kumar Singh
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#%
$$;
+essions court
Children?s court
8on"aila"le
8on"aila"le
%
$
+essions court
Children?s court
8on"aila"le
8on"aila"le
10%
$
4a!istrate
4a!istrate
8on"aila"le
8on"aila"le
11%
At this sta!e, sta!e, another another provision of JJ Act needs to "e "e noted% It It is +ection#5 and it 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 practitioner, then, such person shall "e lia"le to twice the penalty provided for such offence% @6planation% or the purposes of this Act, the 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) Participati on) Act, 153% 12%
Certainly, Certainly, in case of a disa"led child, punish'ent is twice the nor'al :uantu'% It 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 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 dis a"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 present conte6t, +ection$ IPC would "e an interestin! read% It !oes as under. /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%
Kidnapping of child becomes non-bailable: A discussion by Rakesh Kumar Singh
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8ow, 8ow, if we apply apply +ection#- JJ Act to the aforesaid, we will find that +ection$ is to apply
to any child or 'inor under 1# years of a!e and for the purposes of JJ Act, +ection$ has to "e 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 tri a"le "y 4a!istrate, the sa'e does not contradict the classification of +ection#
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*he aforesaid analysis shows that the JJ Act has si!nificantly i'proved the provisions of IPC
related to idnappin! and a"duction throu!h referential le!islation in followin! 'anner.
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Irrespective of !ender, if any person under 1# years of a!e is idnapped fro' lawful !uardian, the act will "e punisha"le whereas for IPC, the act i s not punisha"le if done a!ainst a 'ale of 'ore than 1$ years of a!e7
ii% *he idnappin! aforesaid "eco'es non"aila"le whereas it is "aila"le under IPC7 iii% 9idnappin! of a person under 1# years of a!e for "e!!in! "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, the act will "e punisha"le with twice the nor'al :uantu'7 v% In case of disa"led child under 1# years of a!e, the act aforesaid "eco'es tria"le "y a Children?s Court whereas in IPC there is no such di fferentiation on the !round of disa"ility7 vi% 9idnappin!Da"duction with intention to steal fro' person shall "e punisha"le even in respect of a child under 1# years of a!e whereas the t he IPC only covers a child upto 10 years% EEEEEEEEEEEEEEE
Kidnapping of child becomes non-bailable: A discussion by Rakesh Kumar Singh
