HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Pronounced on: 29.07.2024

Case No. : Crl A (D) No. 1/2024

National Investigation Agency

Represented through

Mr. Rajiv Om Parkash Pande, IPS,

Superintendent of Police Cum Chief

Investigating Officer, Branch Office, Jammu. ...Appellant..

Through: - Mr. Vishal Sharma, DSGI with

Mr. Vipan Kalra, PP (NIA) &

Mr. Sumant Sudan, Advocate.

V/s

Abid Mushtaq Mir (Juvenile/CCL)

S/o Mushtaq Ahmad Mir

R/o Putrigam Pulwama

Presently lodged in

observation Home

R.S.Pura, Jammu. ... Respondent..

Through: - Mr. Wani Jahangir Ahmed, Advocate.

CORAM: HON’BLE THE CHIEF JUSTICE (ACTING)

HON’BLE MR JUSTICE PUNEET GUPTA, JUDGE

JUDGMENT

PER PUNEET GUPTA -J:

1. The appeal has been preferred against the order dated 07.11.2023

passed by the Court of learned 3

rd

Additional Sessions Judge,

Jammu (Designated Court under Section 22 NIA Act), whereby the

court submitted the case of the respondent herein-Abid Mushtaq

Mir for disposal under law to the Special Court constituted under

Serial No.29

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2 Crl A (D) No. 1/2024

the Protection of Children from Sexual Offences Act, 2012

(hereinafter called as “POCSO Act”).

2. Mr. Vishal Sharma, learned DSGI has argued that the NIA Court

has exclusive jurisdiction to deal with the offences under UA (P)Act

and not the court to which the case has been sent by the impugned

order. The Special Court designated under POCSO Act cannot deal

with the case of the respondent keeping in view the gravity of the

charges which have been raised against the respondent under

UA(P)Act. The Special court constituted under POCSO Act cannot

try the offences other than the one mentioned under the provisions

of the Act.

3. The learned counsel appearing for the respondent has submitted that

there is no flaw in the impugned order as the court has rightly

directed the trial of the respondent by the POCSO Court.

4. It is suffice to mention herein that the respondent has been declared

as Juvenile in terms of Section 2 (35) of the Juvenile Justice (Care

and Protection of Children) Act, 2015 (hereinafter called as “JJ Act,

2015”). The Juvenile Justice Board while holding the respondent as

juvenile further held that since the respondent was above 16 years

and alleged to have committed heinous offence he is to be tried as

an adult. The Board submitted the case to the learned Principal

Sessions Judge, Jammu on the ground that no Children‟s Court was

functional in the Jammu province. The court of Principal Sessions

Judge, Jammu vide order dated 10.03.2023 transferred the case to

the designated Special Court under the NIA Act, 2008 for trial. The

NIA court, however, has passed the impugned order directing the

trial of the respondent herein by the Special court constituted under

POCSO Act.

5. It is not in dispute that the respondent is to be tried as an adult in the

case arising out of RC03/2022/NIA/JMU, registered by NIA for

offences punishable under different provisions of UA(P)Act as the

finding of the Board has not been challenged. The only question 2024:JKLHC-JMU:2107-DB

3 Crl A (D) No. 1/2024

which arises for consideration is as to whether the respondent is to

be tried by the NIA Court which has passed the impugned order or

by some other court.

6. Section 11 of the NIA Act speaks of designation of Court of

Sessions as Special Court for trial of scheduled offences. The

offence under UA(P)Act is scheduled offence. Section 22 of the

said Act also gives power to the State to designate one or more

courts of Sessions as Special Courts for the trial of offences under

any or all the enactments specified in the Schedule. Sub-section 3 of

Section 22 ordains that the jurisdiction conferred by this Act on a

Special Court shall be exercised by the Court of Sessions of the

Division in which such offence has been committed till a Special

Court is designated by the State Government under Sub-Section (1).

The „Code‟ in the NIA Act means the Code of Criminal Procedure,

1973 (2 of 1974). It is, thus, clear that the designated court is to try

the scheduled offences and in case the Special Court is not

designated for trying those offences as mentioned under the

Schedule, the court of Sessions of the division in which such

offence has been committed will have jurisdiction in the matter.

7. Admittedly, the respondent is to be tried under the provisions of

JJ Act because the respondent is to be tried as an adult in terms of

the order passed by the Juvenile Board. The provisions of JJ Act

will have precedence over any other enactment.

8. It is profitable to take note of Section 25 of the Commissions for

Protection of Child Rights Act, 2005 (hereinafter called as “CPCR

Act”). As per the said Section, the State Government may with the

concurrence of Chief Justice of the High Court specify atleast a

court in the State or specify for each District a court of Sessions to

be a Children Court to try the offences related to children or of

violation of child rights. It is further provided that nothing in the

Section shall apply if a court of Sessions is already specified as a

Special Court or a Special Court is already constituted for such 2024:JKLHC-JMU:2107-DB

4 Crl A (D) No. 1/2024

offences under any other law for the time being in force.

Admittedly, no such court has been established by the Government

in terms of Section 25 of the Act meaning thereby that in case

offences against children are to be tried, the court of Sessions which

is already specified as a Special Court shall try the offences

concerning the children. Another enactment which is relevant for

disposal of the present appeal is “Protection of Children from

Sexual Offences Act, 2012” (POCSO Act). Section 28 of the Act is

relevant for the purposes of discussion. The Section provides

constitution of Special Courts for trying the offences under the Act

and reads as under :

“28. Designation of Special Courts.–(1) For the purposes of

providing a speedy trial, the State Government shall in consultation

with the Chief Justice of the High Court, by notification in the

Official Gazette, designate for each district, a Court of Sessions to

be a Special Court to try the offences under the Act:

Provided that if a Court of Sessions is notified as a children‟s

court under the Commissions for Protection of Child Rights Act,

2005 (4 of 2006) or a Special Court designated for similar purposes

under any other law for the time being in force, then, such court

shall be deemed to be a Special Court under this section.”

9. The State Government has constituted Special Court for trying

offences under POCSO Act vide Government Order No. 2232-JK

LD (A) of 2020 dated 20.03.2020 read with Government Order No.

2333-JK (LD) of 2020 dated 03.09.2020. One such Special Court

has been constituted for Jammu. It is also relevant to take care of the

provisions of the JJ Act, 2015. The definition of Children‟s Court

has been provided under sub-section 20 of Section 2 of the JJ Act.

As per said provision Children‟s Court means Court established

under CPCR Act, 2005 or a Special Court under POCSO Act

wherever existing. The definition further provides that where such

courts have not been designated, the court of Sessions will have

jurisdiction to try offences under the Act. As mentioned above, the

Children‟s Court under CPCR Act, 2005 has not been established.

However, Special Courts under POCSO Act have been established 2024:JKLHC-JMU:2107-DB

5 Crl A (D) No. 1/2024

as mentioned above. 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 JJ Act, 2015 will apply for offence committed by

the child under any enactment. Section 2 (33) and Section 2 (54) of

the JJ Act provide definition of heinous offences and serious

offences respectively and include the offences committed under the

Indian Penal Code or any other law for the time being in force. It is

more than evident that the aforesaid provisions provide that the

Children‟s Court can try offences not only under Indian Penal Code

but offences committed under any other law which is in force and

thus will include the offences under UA(P) Act also. 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. Section 1 (4) of the JJ Act provides

applicability of the Act in matters including detention and

prosecution. 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

argument of learned counsel for the appellant that Section 11 and

Section 22 of the Act should prevail over the provisions of JJ Act

cannot be accepted. The severity of punishment under UA(P) Act

cannot be the reason to oust the jurisdiction of particular court 2024:JKLHC-JMU:2107-DB

6 Crl A (D) No. 1/2024

where the trial is required to be held in view of the Special

provisions of law.

10. The other argument of the appellant that Section 28 of the JJ Act is

not applicable in the present case as the Special Court under the Act

can try the offences under the POCSO Act only cannot be agreed to

by the court in view of the provisions of JJ Act and particularly

Section 2 (20) of the JJ Act.

11. In view of the provision of Section 2 (20) of the JJ Act and the fact

that the Special Court has been designated under the POCSO Act

which is to be deemed as Children‟s Court for the purposes of

JJ Act, 2015 and moreover as the present case stands registered

within the jurisdiction where the designated Special Court under

POCSO Act is also having jurisdiction, therefore, the designated

Special Court under POCSO Act at Jammu constituted vide

Government Order No. 2232-JK LD (A) of 2020 dated 20.03.2020

read with Government Order No. 2333-JK (LD) of 2020 dated

03.09.2020 shall have the jurisdiction to try the case against the

respondent herein.

12. The order impugned in the present appeal whereby the NIA Court

has directed the trial of the respondent by the POCSO Court,

Jammu is upheld. There is no force in the contention of the

appellant that the case of the respondent is required to be tried by

the Special NIA Court, Jammu. The appeal is without merit and is,

accordingly, dismissed.

(PUNEET GUPTA) (TASHI RABSTAN)

JUDGE CHIEF JUSTICE (ACTING)

JAMMU:

29.07.2024

Pawan Chopra

Whether the Judgment is speaking? Yes

Whether the Judgment is reportable? Yes

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