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[Supreme Court of India|ORG]
[Thirumoorthy|PERSON] vs State Represented By The Inspector Of ... on [22 March,
2024|DATE]
Author: [B.R. Gavai|PERSON]
Bench: B.R. [Gavai|PERSON]
2024 INSC 247 REPORTABLE
IN [THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).|ORG] OF [2024|DATE]

THIRUMOORTHY ….APPELLANT(S)

VERSUS

STATE REPRESENTED BY
THE INSPECTOR OF POLICE …RESPONDENT(S)

JUDGMENT
Mehta, J.
1. Leave granted.
[2|CARDINAL]. This appeal takes exception to the judgment dated [15th April, 2021|
DATE], passed by the learned Single Judge of [the High Court of Judicature at
Madras|ORG] dismissing the criminal appeal filed by the appellant herein under
Section 374(2) of [the Code of Criminal Procedure,|LAW] 1973 (hereinafter being
referred to as ‘[CrPC|LAW]’) and affirming the conviction of the appellant and
sentences awarded to him vide judgment and order dated [18th February, 2019|DATE],
passed by [the Court of Sessions Judge|ORG], [Mahila Court|ORG], [Salem|GPE]
(hereinafter being referred to as the ‘trial Court’) in Special Sessions Case No.
79 of [2016|DATE]. By the said judgment and order, learned trial Court convicted
and sentenced the appellant as below: -
Provision under Sentence
which convicted
[Section 363|LAW] IPC Sentenced to undergo [07 years|DATE]
rigorous imprisonment.
[Section 342 IPC|LAW] Sentenced to undergo [01 years|DATE]
rigorous imprisonment.
[Section 6 POCSO Act|LAW] Sentenced to undergo [10 years|DATE]
rigorous imprisonment.
[Section 302 IPC|LAW] Sentenced to undergo [10 years|DATE]
rigorous imprisonment.
[Section 201|LAW] read with [302|CARDINAL] Sentenced to undergo [07 years|
DATE]
IPC rigorous imprisonment.
[3|CARDINAL]. [The trial Court|ORG] in para [96|CARDINAL] of its judgment held as
under: -
“96. Accused is now [19 years 2 months old|DATE]. Therefore, according to [Section
20 Juvenile Justice (Care and Protection of Children|LAW] Act), Juvenile in
conflict with law shall be kept in a safe place in [Chengalpattu Juvenile Reform
School|ORG] till [the age of 21 years|DATE].
After that, the Probation Officer should evaluate the reformation of the said child
and send a periodic report about it to this Court. After the completion of [21
years|DATE], the said child shall be produced in this Court and after evaluating
whether the child has reformed, became a child who can contribute to the society,
the remaining sentence may be reduced and released, or if the child is not
reformed, the remaining sentence should be spent in jail after the child reaches
[the age of 21|DATE], considering the report of the Probation Officer and the
progress records. The decision will be based on the discipline that the child has
achieved and his behaviour.”
[4|CARDINAL]. Brief facts relevant and essential for disposal of the instant appeal
are noted hereinbelow.
5. The victim Ms. [D|PERSON], being the daughter of the [first|ORDINAL] informant-
Mr. G(PW-1) aged [6 years|DATE] went missing in [the evening of 2nd July|TIME],
2016. Mr. [G|PERSON] (PW-1) lodged a complaint at [P.S. Kolathur|FAC], District
[Salem|GPE] on [3rd July, 2016|DATE] at [7 ‘o clock in the morning|TIME] alleging,
inter alia that he had taken his daughter(victim) to a shop on [the previous
evening|TIME] at [around 6 o’ clock|TIME] and from there, he asked the child to
return home. However, when he reached his house [half an hour later|TIME] and made
an inquiry from his wife, he was told that the child had not returned by then. A
search was made in the locality but the child could not be traced out. Based on the
said complaint, [Crime No.|LAW] 174 of [2016|DATE] was registered and investigation
was undertaken by [S. Viswanathan|PERSON], Inspector of Police (PW-25).
6. The Investigating Officer (PW-25) recorded the statements of [Mylaswamy|PERSON]
(PW-10) and [Irusappan|PERSON] (PW-11) who stated that they had seen the accused
going into the compound of his house with the child victim being the daughter of
the [first|ORDINAL] informant-Mr. [G|PERSON] (PW-1). On this, the needle of
suspicion pointed towards the accused-appellant who was apprehended from his house
by the Investigating Officer (PW-25) while he was trying to run away. The accused
was interrogated in presence of Mr. [Arivazhagan|PERSON], Village Administrative
Officer (PW-15) and his assistant [Muthappan|PERSON].
7. It is alleged that the accused confessed to his guilt and his admission was
recorded in memo (Ex. P-20) and acting in furtherance thereof, the dead body of Ms.
[D|PERSON] was found concealed in a wide-mouthed aluminium vessel lying in the
prayer room of the house of the accused. The requisite spot inspection proceedings
were undertaken and the dead body of the child victim was sent to [the Salem
Government|ORG] [Mohan Kumaramangalam Medical College Hospital|ORG] for conducting
post mortem. The post mortem report (Ex. P-7) and final opinion of Doctor (Ex. P-8)
were received indicating that the death of the victim was homicidal in nature
having being caused by asphyxiation due to compression of neck along with injuries
to genitalia. Some incised wounds were also found on the body of the victim.
Incriminating articles viz., clothes of the accused, a blade, etc. were recovered
from the house of accused.
8. Right at the inception of investigation, the Investigating Officer(PW-25) had
gathered information to the effect that the accused was a juvenile since his date
of birth recorded in school documents is [30th May, 2000|DATE]. Thus indisputably,
the accused was a Child in Conflict with Law(in short ‘CICL’) as provided under
[Section 2(13)|LAW] of [the Juvenile Justice(Care and Protection of Children) Act|
LAW], [2015|DATE] (hereinafter being referred to as [the ‘JJ Act|LAW]’) and the
proceedings were required to be conducted in accordance with the mandatory
procedure prescribed under [the JJ Act|LAW]. Inspite thereof, charge sheet against
the accused was filed directly before [the Sessions Court|ORG] (portrayed to be a
designated Children’s Court, as per the counter affidavit filed by the [State|ORG]
in the SLP).
9. Charges were framed against the accused who pleaded not guilty and claimed
trial. The prosecution examined [25|CARDINAL] witnesses and exhibited [35|CARDINAL]
documents and [10|CARDINAL] material objects to prove its case. The accused was
questioned under [Section 313(1)(b)|LAW] of [CrPC|LAW] and was confronted with the
circumstances appearing against him in the prosecution case. He denied the
allegations levelled against him and claimed to be innocent. However, neither oral
nor documentary evidence was led in defence. [The trial Court|ORG] proceeded to
convict and sentence the accused as mentioned above, vide judgment and order dated
[18th February, 2019|DATE].
[10|CARDINAL]. The mother of the accused appellant filed a petition before [the
Special Court|ORG], [POCSO Act Cases|LAW], [Salem|GPE] praying that the sentence of
her son may be reduced and he may be considered for early release in view of his
good behaviour.
[11|CARDINAL]. [The Special Court|ORG], [POCSO Act Cases|LAW], [Salem|GPE] held an
inquiry; conducted psychological evaluation of the accused; procured reports from
the [Vellore|GPE] District [Social Security Department|ORG] Probation Officer and
Probation Officer of [Government Special Home|ORG] as well as the individual
evaluation report of the accused and after analysing the above reports, proceeded
to dismiss the application filed by the mother of the accused appellant vide order
dated [29th January, 2021.|DATE]
12. Being aggrieved by his conviction and the sentences awarded by the trial Court,
the accused appellant preferred an appeal being [CRLA No. 451|LAW] of [2019|DATE]
before [the High Court of Judicature at Madras|ORG] which came to be rejected vide
impugned judgment dated [15th April, 2021|DATE]. Hence this appeal by special
leave.
[13|CARDINAL]. Ms. [S. Janani|PERSON], learned counsel representing the accused
appellant vehemently urged that admittedly the accused appellant was a CICL on the
date of the incident since his date of birth as recorded in the school documents is
[30th May, 2000|DATE]. She contended that the entire series of events commencing
from the arrest of the accused appellant; the manner in which the investigation was
conducted; the filing of the charge sheet in [the Sessions Court|ORG]; the
procedure of trial right up to the conviction and sentencing of the accused
appellant is vitiated as the mandatory procedure provided under [the JJ Act|LAW]
was not followed and was rather blatantly flouted. It was submitted that the police
official who filed the charge sheet was not having the authority to conduct
investigation because investigation into an offence allegedly committed by [CICL|
ORG] has to be undertaken by [the Special Juvenile Police Unit(SJPU|ORG])
constituted under [Section 107(2)|LAW] of [the JJ Act|LAW] by the concerned State
Government.
14. She urged that [Section 3(1)|LAW] provides for the principle of presumption of
innocence, but the said provision was totally ignored in conducting the prosecution
of the accused appellant and hence the entire trial is vitiated.
15. It was further submitted that the Sessions Judge who conducted trial was not
designated as [a Children’s Court|ORG] and thus, the trial of the accused appellant
is vitiated. Without prejudice to this submission, learned counsel submitted that
even assuming that [the Sessions Court|ORG] had been designated as [a Children’s
Court|ORG], the accused appellant could not have been tried by the said Court
without preliminary assessment being conducted by [the Juvenile Justice
Board(hereinafter being|ORG] referred to as ‘[Board|ORG]’) as postulated under
[Section 15|LAW] of [the JJ Act|LAW]. The section mandates an enquiry in form of
preliminary assessment to be conducted by the [Board|ORG] wherein the [CICL|ORG]
has a right to participate. Upon conclusion of enquiry, the [Board|ORG] has to pass
an order under [Section 18(3)|LAW] to the effect that there is a need to try the
child as an adult and only thereafter, the [Board|ORG] can transfer the case to
[the Children’s Court|ORG] for trial. The [CICL|ORG] has been given a right to
appeal against such order by virtue of [Section 101(2)|LAW] of [the JJ Act|LAW].
Even after the transfer of case under [Section 15|LAW], [the Children’s Court|ORG]
is required to apply its own independent mind to find out whether there is a
genuine need for trial of the [CICL|ORG] as an adult as provided by [Section 19(1)
(i)|LAW] of [the JJ Act|LAW]. However, none of these mandatory requirements were
complied with and thus, the trial is vitiated.
[16|CARDINAL]. Referring to the alleged confession of the accused appellant, the
learned counsel criticised the manner in which the investigation was conducted and
submitted that the confession recorded in presence of the police officer could not
have been allowed to be exhibited and admitted in evidence. She submitted that the
trial Court, not only allowed the confession to be exhibited but also placed
implicit reliance upon it basing the conviction of the accused appellant on such
inadmissible piece of evidence. The recording of confession of a CICL and placing
implicit reliance thereupon is contrary to the general principles laid out under
Section 3 of [the JJ Act|LAW] which provides the general principles to be followed
in the administration of the Act.
17. It was further urged that (PW-10) and (PW-11) whose depositions have been
relied upon to constitute the circumstance of last seen are as a matter of fact,
totally unreliable witnesses. Had these witnesses seen the child being taken away
by the accused, then their natural reaction would have been to promptly inform the
child’s father, the informant Mr. [G.|PERSON] (PW-1) about this important
circumstance and the same would definitely have been incorporated in the FIR which
was lodged on [the next day|DATE] of the incident.
18. It was also contended that the factum of recovery of the dead body from the
aluminium vessel preceded by the disclosure statement of the accused appellant has
not been proved by reliable evidence and hence, there does not exist cogent and
convincing circumstantial evidence on the record so as to establish the guilt of
the accused appellant.
[19|CARDINAL]. On these counts, learned counsel for the appellant implored the
[Court|ORG] to accept the appeal and set aside the impugned judgment and sought
acquittal for the accused appellant.
[20|CARDINAL]. Learned counsel representing the [State|ORG], vehemently and
fervently opposed the submissions advanced by the appellant’s counsel. It was
submitted that looking to the gruesome nature of the crime, the entire
investigation and trial cannot be held to be vitiated simply on account of
irregularity in the procedure of conducting investigation and trial. [The Sessions
Court|ORG] which conducted the trial had been designated as [a Children’s Court|
ORG]. The trial Court as well as [the High Court|ORG] have given due consideration
to the fact that the accused appellant was a juvenile on the date of commission of
the crime and accordingly, the sentence which has been awarded to the accused
appellant is commensurate with the provisions of [the JJ Act|LAW]. Not only this,
the trial Court undertook an exhaustive exercise for mental and psychological
assessment of the accused appellant after recording his conviction and only after
receiving an individual care plan had quantified the sentences to be awarded to the
accused which are strictly within the framework of [the JJ Act.|LAW]
21. In support of his contentions, learned counsel for the State placed reliance on
judgments rendered by this Court in the cases of [Karan alias Fatiya|PERSON] v.
State of Madhya Pradesh1 and [Pawan Kumar|PERSON] v. State of Uttar Pradesh & Ors2.
He contended that the (2023) 5 SCC 504 2023 SCC OnLine SC 1492 impugned judgment
does not warrant any interference by this Court.
[22|CARDINAL]. We have given our thoughtful consideration to the submissions
advanced at bar and have gone through the judgments on record.
[23|CARDINAL]. The fact regarding the accused appellant being a CICL on the date of
the incident, i.e., [2nd July, 2016|DATE] is not in dispute because the date of
birth of the accused as entered in the contemporaneous school record is [30th May,
2000|DATE][.|DATE]
[24|DATE]. We shall thus [first|ORDINAL] take up the issue whether the trial is
vitiated on the account of non-adherence to the mandatory requirements of [the JJ
Act|LAW].
25. At the outset, we may note that the fact regarding the accused appellant being
juvenile and thus a CICL on the date of commission of the incident was known to the
Investigating Officer(PW-25) right at inception of the proceedings. The
Investigating Officer(PW-25) categorically stated in his deposition that after
completing the investigation and preparing the final report against the “juvenile
in conflict with law”, he took opinion from the [Salem|ORG] [TTP|ORG], prepared a
model charge sheet and filed the same in the trial Court.
[26|CARDINAL]. [The trial Court|ORG] was also cognizant of this important aspect as
can be clearly discerned from the opening lines of para [2|CARDINAL] of the
judgment of the trial Court wherein it is mentioned that “[Thirumoorthy|PERSON]’, a
[17 year old|DATE] juvenile in conflict with law, lives with his mother in
[Telanganaur|GPE]”. It has also been recorded by [the trial Court|ORG] that on the
date of passing of the judgment, i.e., [18th February, 2019|DATE], the accused was
[19 years and 2 months old|DATE] and accordingly, he was required to be sent to a
place of safety as per [Section 20|LAW] of the JJ Act. The judgment passed by [the
Sessions Court|ORG] also records the fact that during the course of the trial, the
accused was kept in a child protection home. Further at para [32|CARDINAL] of the
judgment, [the trial Court|ORG] also noted that the Public Prosecutor himself
argued that [Thirumoorthy|PERSON] was a CICL who committed the offence upon the
child victim.
[27|CARDINAL]. Thus, there is no escape from the conclusion that even before the
result of investigation was filed, the fact regarding the accused being a CICL was
well known to the Investigating Officer(PW-25), the prosecution and the trial Court
as well.
[28|CARDINAL]. Before dealing with the rival contentions, we would now refer to
some of the relevant provisions of [the JJ Act|LAW] which are required to be
followed in a case involving prosecution of a CICL:-
“3. General principles to be followed in administration of [Act|LAW]. ––[The
Central Government|ORG], the State Governments, the [Board|ORG], and other
agencies, as the case may be, while implementing the provisions of this Act shall
be guided by the following fundamental principles, namely: ––
(i) Principle of presumption of innocence: Any child shall be presumed to be an
innocent of any mala fide or criminal intent [up to the age of eighteen years|
DATE].
(ii) Principle of dignity and worth: All human beings shall be treated with equal
dignity and rights.
(iii) Principle of participation: Every child shall have a right to be heard and to
participate in all processes and decisions affecting his interest and the child’s
views shall be taken into consideration with due regard to the age and maturity of
the child.
(iv) Principle of best interest: All decisions regarding the child shall be based
on the primary consideration that they are in the best interest of the child and to
help the child to develop full potential.
(v) Principle of family responsibility: The primary responsibility of care, nurture
and protection of the child shall be that of the biological family or adoptive or
foster parents, as the case may be.
(vi) Principle of safety: All measures shall be taken to ensure that the child is
safe and is not subjected to any harm, abuse or maltreatment while in contact with
the care and protection system, and thereafter.
(vii) Positive measures: All resources are to be mobilised including those of
family and community, for promoting the well-being, facilitating development of
identity and providing an inclusive and enabling environment, to reduce
vulnerabilities of children and the need for intervention under this Act.
(viii) Principle of non-stigmatising semantics:
Adversarial or accusatory words are not to be used in the processes pertaining to a
child.
(ix) Principle of non-waiver of rights: No waiver of any of the right of the child
is permissible or valid, whether sought by the child or person acting on behalf of
the child, or [a Board|ORG] or a [Committee|ORG] and any non-exercise of a
fundamental right shall not amount to waiver.
(x) Principle of equality and non-discrimination: There shall be no discrimination
against a child on any grounds including sex, caste, ethnicity, place of birth,
disability and equality of access, opportunity and treatment shall be provided to
every child.
(xi) Principle of right to privacy and confidentiality:
Every child shall have a right to protection of his privacy and confidentiality, by
all means and throughout the judicial process.
(xii) Principle of institutionalisation as a measure of last resort: A child shall
be placed in institutional care as a step of last resort after making a reasonable
inquiry.
(xiii) Principle of repatriation and restoration: Every child in the juvenile
justice system shall have the right to be re-united with his family at the earliest
and to be restored to the same socio-economic and cultural status that he was in,
before coming under the purview of this Act, unless such restoration and
repatriation is not in his best interest.
(xiv) Principle of fresh start: All past records of any child under the Juvenile
Justice system should be erased except in special circumstances.
(xv) Principle of diversion: Measures for dealing with children in conflict with
law without resorting to judicial proceedings shall be promoted unless it is in the
best interest of the child or the society as a whole.
(xvi) Principles of natural justice: Basic procedural standards of fairness shall
be adhered to, including the right to a fair hearing, rule against bias and the
right to review, by all persons or bodies, acting in a judicial capacity under this
Act.
9. Procedure to be followed by a Magistrate who has not been empowered under this
Act. –– ([1|CARDINAL]) When a Magistrate, not empowered to exercise the powers of
the [Board|ORG] under this Act is of the opinion that the person alleged to have
committed the offence and brought before him is a child, he shall, without any
delay, record such opinion and forward the child immediately along with the record
of such proceedings to the [Board|ORG] having jurisdiction. ([2|CARDINAL]) In case
a person alleged to have committed an offence claims before a court other than a
[Board|ORG], that the person is a child or was a child on the date of commission of
the offence, or if the court itself is of the opinion that the person was a child
on the date of commission of the offence, the said court shall make an inquiry,
take such evidence as may be necessary (but not an affidavit) to determine the age
of such person, and shall record a finding on the matter, stating the age of the
person as nearly as may be:
Provided that such a claim may be raised before any court and it shall be
recognised at any stage, even after final disposal of the case, and such a claim
shall be determined in accordance with the provisions contained in this Act and the
rules made thereunder even if the person has ceased to be a child on or before the
date of commencement of this Act.
([3|CARDINAL]) If the court finds that a person has committed an offence and was a
child on the date of commission of such offence, it shall forward the child to the
[Board|ORG] for passing appropriate orders and the sentence, if any, passed by the
court shall be deemed to have no effect.
([4|CARDINAL]) In case a person under this section is required to be kept in
protective custody, while the person’s claim of being a child is being inquired
into, such person may be placed, in the intervening period in a place of safety.
(emphasis supplied)
15. Preliminary assessment into heinous offences by [Board|ORG]. –– ([1|CARDINAL])
In case of a heinous offence alleged to have been committed by a child, who has
completed or is above the age of sixteen years, the [Board|ORG] shall conduct a
preliminary assessment with regard to his mental and physical capacity to commit
such offence, ability to understand the consequences of the offence and the
circumstances in which he allegedly committed the offence, and may pass an order in
accordance with the provisions of subsection ([3|CARDINAL]) of section [18|
CARDINAL]:
Provided that for such an assessment, the [Board|ORG] may take the assistance of
experienced psychologists or psycho-social workers or other experts.
Explanation. —For the purposes of this section, it is clarified that preliminary
assessment is not a trial, but is to assess the capacity of such child to commit
and understand the consequences of the alleged offence.
([2|CARDINAL]) Where the [Board|ORG] is satisfied on preliminary assessment that
the matter should be disposed of by the [Board|ORG], then the Board shall follow
the procedure, as far as may be, for trial in summons case under [the Code of
Criminal Procedure|LAW], [1973|DATE]:
Provided that the order of the [Board|ORG] to dispose of the matter shall be
appealable under sub-section (2) of section 101:
Provided further that the assessment under this section shall be completed within
the period specified in section [14|CARDINAL].”
18. Orders regarding child found to be in conflict with law.
––(1) Where a [Board|ORG] is satisfied on inquiry that a child irrespective of age
has committed a petty offence, or a serious offence, or a child below the age of
sixteen years has committed a heinous offence, then, notwithstanding anything
contrary contained in any other law for the time being in force, and based on the
nature of offence, specific need for supervision or intervention, circumstances as
brought out in the social investigation report and past conduct of the child, the
[Board|ORG] may, if it so thinks fit,—
(a) allow the child to go home after advice or admonition by following appropriate
inquiry and counselling to such child and to his parents or the guardian;
(b) direct the child to participate in group counselling and similar activities;
(c) order the child to perform community service under the supervision of an
organisation or institution, or a specified person, persons or group of persons
identified by the [Board|ORG];
(d) order the child or parents or the guardian of the child to pay fine:
Provided that, in case the child is working, it may be ensured that the provisions
of any labour law for the time being in force are not violated;
(e) direct the child to be released on probation of good conduct and placed under
the care of any parent, guardian or fit person, on such parent, guardian or fit
person executing a bond, with or without surety, as the Board may require, for the
good behaviour and child’s well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under
the care and supervision of any fit facility for ensuring the good behaviour and
child’s well-being for any period not exceeding three years;
(g) direct the child to be sent to a special home, for such period, not exceeding
three years, as it thinks fit, for providing reformative services including
education, skill development, counselling, behaviour modification therapy, and
psychiatric support during the period of stay in the special home:
Provided that if the conduct and behaviour of the child has been such that, it
would not be in the child’s interest, or in the interest of other children housed
in a special home, the [Board|ORG] may send such child to the place of safety.
([2|CARDINAL]) If an order is passed under clauses (a) to (g) of sub-section (1),
the Board may, in addition pass orders to—
(i) attend school; or
(ii) attend a vocational training centre; or
([iii|CARDINAL]) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a specified
place; or
(v) undergo a de-addiction programme.
([3|CARDINAL]) Where the [Board|ORG] after preliminary assessment under section 15
pass an order that there is a need for trial of the said child as an adult, then
the [Board|ORG] may order transfer of the trial of the case to [the Children’s
Court|ORG] having jurisdiction to try such offences.
[19|CARDINAL]. Powers of [Children's Court.—(1|ORG]) After the receipt of
preliminary assessment from the [Board|ORG] under [Section 15|LAW], [the Children's
Court|ORG] may decide that—
(i) there is a need for trial of the child as an adult as per the provisions of
[the Code of Criminal Procedure|LAW], [1973|DATE] ([2|CARDINAL] of 1974) and pass
appropriate orders after trial subject to the provisions of this section and
[Section 21|LAW], considering the special needs of the child, the tenets of fair
trial and maintaining a child friendly atmosphere;
(ii) there is no need for trial of the child as an adult and may conduct an inquiry
as a Board and pass appropriate orders in accordance with the provisions of
[Section 18.
(|LAW]2)-(5)..……..”
[29|CARDINAL]. The provisions contained in [Section 9(1)|LAW] stipulate that when a
Magistrate not empowered to exercise the power of the [Board|ORG] under the Act is
of the opinion that the person alleged to have committed the offence and brought
before him is a child, he shall, without any delay, record such opinion and forward
the child immediately along with the record of such proceedings to the [Board|ORG]
having jurisdiction.
[30|CARDINAL]. [Sections 9(2)|LAW] and 9(3) cast a burden that where the [Court|
ORG] itself is of the opinion that the person was a child on the date of commission
of the offence, it shall conduct an inquiry so as to determine the age of such
person and upon finding that the person alleged to have committed the offence was a
child on date of commission of such offence, forward such person to the [Board|ORG]
for passing appropriate orders and sentence, if any, passed by the [Court|ORG]
shall be deemed to have no effect.
[31|CARDINAL]. In the present case, the situation is very stark inasmuch as, even
when the charge sheet was filed, the Investigating Officer had clearly recorded
that the date of birth of the accused was [30th May, 2000|DATE], and hence, even
assuming that [Sessions Court|ORG] at [Salem|GPE] had been designated as [a
Children’s Court|ORG], there was no option for the said [Court|ORG] but to forward
the child to the concerned [Board|ORG] for further directions.
[32|CARDINAL]. There is no dispute on the aspect that the offences of which the
accused appellant was charged with, fall within the category of ‘heinous offences’
as defined under [Section 2(33)|LAW] of [the JJ Act|LAW]. [Section 15(1)|LAW]
provides that in case where a heinous offence/s are alleged to have been committed
by a child who has completed or is above the age of sixteen years, the Board shall
conduct a preliminary assessment with regard to his mental and physical capacity to
commit such offence, ability to understand the consequences of the offence and the
circumstances in which he committed the offence. The [Board|ORG], after conducting
such assessment, may pass an order in accordance with the provisions of sub-section
([3|CARDINAL]) of [Section 18|LAW] of [the JJ Act|LAW]. [Section 15(2)|LAW]
provides that where the [Board|ORG] is satisfied on preliminary assessment that the
matter should be disposed of by the [Board|ORG], then the [Board|ORG] shall follow
the procedure, as far as may be, for trial of summons case under [CrPC|LAW]. Under
[first|ORDINAL] proviso to this sub- section, the order passed by the [Board|ORG]
is appealable under [Section 101(2)|LAW] of [the JJ Act|LAW].
[33|CARDINAL]. [Section 18(3)|LAW] provides that where the [Board|ORG] after
preliminary assessment under [Section 15|LAW] opines that there is a need for the
said child to be tried as an adult, then the [Board|ORG] may order transfer of the
trial of the case to [the Children’s Court|ORG] having jurisdiction to try such
offences.
[34|CARDINAL]. By virtue of [Section 19(1)|LAW], [the Children’s Court|ORG], upon
receiving such report of preliminary assessment undertaken by the [Board|ORG] under
[Section 15|LAW] may further decide as to whether there is a need for trial of the
child as an adult or not.
[35|CARDINAL]. The procedure provided under Sections [15|CARDINAL] and [19|
CARDINAL] has been held to be mandatory by this Court in the case of [Ajeet Gurjar|
PERSON] v. State of Madhya Pradesh3. In the said case, this Court considered the
import of [Section 19(1)|LAW] of [the JJ Act|LAW] and held that the word ‘may’ used
in the said provision be read as ‘shall’. It was also held that holding of an
inquiry under 19(1)(i) is not an empty formality. [Section 19)(1)(ii)|LAW] provides
that after examining the matter, if [the Children’s Court|ORG] comes to the
conclusion that there is no need for trial of the child as an adult, instead of
sending back [2023|DATE] SCC Online SC 1255 the matter to the [Board|ORG], the
Court itself is empowered to conduct an inquiry and pass appropriate orders in
accordance with provisions of [Section 18|LAW] of [the JJ Act|LAW]. The trial of a
child as an adult and his trial as a juvenile by [the Children’s Court|ORG] have
different consequences.
[36|CARDINAL]. It was further held that [the Children’s Court|ORG] cannot brush
aside the requirement of holding an inquiry under [Section 19(1)(i)|LAW] of [the JJ
Act|LAW]. Thus, all actions provided under [Section 19|LAW] are mandatorily
required to be undertaken by [the Children’s Court|ORG].
[37|CARDINAL]. As can be seen from the facts of the present case, there has been a
flagrant violation of the mandatory requirements of Sections 15 and 19 of [the JJ
Act|LAW]. Neither was the charge sheet against the accused appellant filed before
the Board nor was any preliminary assessment conducted under Section 15, so as to
find out whether the accused appellant was required to be tried as an adult.
[38|CARDINAL]. In absence of a preliminary assessment being conducted by the
[Board|ORG] under Section 15, and without an order being passed by the [Board|ORG]
under Section 15(1) read with Section 18(3), it was impermissible for the trial
Court to have accepted the charge sheet and to have proceeded with the trial of the
accused.
[39|CARDINAL]. Thus, it is evident that the procedure adopted by [the Sessions
Court|ORG] in conducting the trial of the accused appellant is de hors the
mandatory requirements of [JJ Act.|LAW]
40. Thus, on the face of the record, the proceedings undertaken by [the Sessions
Court|ORG] in conducting trial of the [CICL|ORG], convicting and sentencing him as
above are in gross violation of the mandate of the Act and thus, the entire
proceedings stand vitiated.
[41|CARDINAL]. It seems that pursuant to the trial being concluded, [the trial
Court|ORG] realized the gross illegality in the proceedings and thus, in an attempt
to give a vestige of validity to the grossly illegal proceedings conducted earlier,
an exercise was undertaken to deal with the accused appellant as per the provisions
of [the JJ Act|LAW] on the aspect of sentencing. However, ex facie, the said action
which seems to be taken by way of providing an ex post facto imprimatur to the
grossly illegal trial does not stand to scrutiny because the very foundation of the
prosecution case is illegal to the core.
[42|CARDINAL]. All the proceedings taken against the accused appellant are vitiated
as being in total violation of the mandatory procedure prescribed under [the JJ
Act|LAW].
43. In the case of [Karan Alias Fatiya(supra|PERSON]) relied upon by learned
counsel for the [State|ORG], this Court interpreted [Section 9(3)|LAW] and held
that this sub-section does not specifically or impliedly provide that the
conviction recorded by any [Court|ORG] with respect to a person who has been
subsequently, after the disposal of the case found to be juvenile or a child, would
lose its effect, rather it is only the sentence if any passed by the [Court|ORG]
would be deemed to have no effect. The said judgment is clearly distinguishable
because in the present case, the fact that the accused was a child on the date of
the incident was clearly known to the Investigating Officer, the prosecution and
the trial Court and thus, there is no possibility of saving the illegal proceedings
by giving them an ex post facto approval.
[44|CARDINAL]. In the case of [Pawan Kumar(supra|PERSON]), the plea of juvenility
raised by the accused did not find favour of [the Sessions Court|ORG] as well as
[the High Court|ORG]. However, in the appeal before this Court, a report was
submitted by the Additional Sessions Judge, wherein it was opined that the
appellant was a juvenile at the time of commission of alleged offences. The
incident in the said case occurred on [1st December, 1995|DATE] and the age of
juvenility was [16 years|DATE] as provided in the then prevailing Juvenile Justice
Act, [1986|DATE]. In the peculiar facts of the said case, this Court held that by
virtue of subsequent amendments, the age of juvenility had been raised to [18
years|DATE] and thus, the accused was entitled to be treated as a juvenile by
virtue of the provisions of [the JJ Act|LAW] prevailing when the appeal was taken
up. Since the accused had already undergone the maximum punishment of detention
provided under the said Act, i.e., [three years|DATE], it was directed that the
accused therein be released forthwith.
45. In the above [two|CARDINAL] referred cases, the situation presented was that
the factum regarding the accused being a child within the meaning of [the JJ Act|
LAW] came to light at a very late stage i.e. after final decision of the cases and
hence both these cases are clearly distinguishable from the case at hand.
[46|CARDINAL]. In the case of [Ajeet Gurjar(supra|PERSON]), this Court remitted
back the matter to [the Sessions Court|ORG] for complying with the requirements of
[Section 19(1)|LAW] of [the JJ Act|LAW]. However, in the present case, there is yet
another hurdle which convinces us that it is not a fit case warranting de novo
proceedings against the accused appellant by taking recourse to the provisions of
[the JJ Act|LAW]. At the cost of repetition, it may be reiterated that the charge
sheet was filed against the accused appellant directly before [the Sessions Court|
ORG] (statedly designated as [a Children’s Court|ORG]) and he was never presented
before [the Juvenile Justice Board|ORG] as per the mandate of [the JJ Act|LAW].
47. The accused appellant being a CICL was never subjected to preliminary
assessment by the Board so as to find out whether he should be tried as an adult.
Directing such an exercise at this stage would be sheer futility because now the
appellant is [nearly 23 years of age|DATE].
[48|CARDINAL]. At this stage, there remains no realistic possibility of finding out
the mental and physical capacity of the accused appellant to commit the offence or
to assess his ability to understand the consequences of the offence and
circumstances in which he committed the offence in [the year 2016|DATE].
[49|CARDINAL]. Since we have held that the entire proceedings taken against the
appellant right from the stage of investigation and the completion of trial stand
vitiated as having been undertaken in gross violation of the mandatory requirements
of [the JJ Act|LAW], we need not dwell into the merits of the matter or to
reappreciate the evidence available on record for finding out whether the
prosecution has been able to prove the guilt of the appellant by reliable
circumstantial evidence.
[50|CARDINAL]. Thus, we are left with no option but to quash and set aside the
impugned judgment and direct that the appellant who is presently lodged in jail
shall be released forthwith, if not required in any other case.
[51|CARDINAL]. The appeal is allowed accordingly.
52. Pending application(s), if any, shall stand disposed of.
………………………….J. (B.R. GAVAI) ………………………….J. (SANDEEP MEHTA) [New Delhi|GPE];
[March 22, 2024|DATE].