Karnataka High Court: K.N. Phaneendra, J. while allowing the present appeal against the order of the II Additional District and Sessions Judge directed the Sessions Judge to refer the matter to the Juvenile Justice Board as the said order passed by the Sessions Judge is not sustainable either in law or on facts.
Background
In the present case, petitioner had been charge-sheeted for the offence punishable under Sections 36 6A and 376 of Penal Code, 1860 and also under Section 6 of the Prevention of Children from Sexual Offences Act (POCSO Act).
An application was filed during the pendency of the above-stated proceedings, wherein it was stated that the accused was not of 18 years as on the date of the alleged incident and he was a Juvenile. The alleged incident was that the accused had kidnapped and abducted the victim girl and committed sexual intercourse with her, for which Sessions Judge passed an order that the accused was below the age of 18 years and above the age of 16 years. Therefore, the application filed by the accused was rejected.
The said order of the Sessions Judge was challenged before this Court and this Court through an order had allowed the said appeal while directing the Sessions Court to enquire into the claim regarding the age of the accused as to whether the matter is triable by the Juvenile Justice Board or by this Court in view of Sections 14, 15 and 18 of the JJ Act.
Sessions Judge passed the impugned order after the remand, in the said order, the age of the boy was considered under the provision of Section 34 of JJ Act and after perusal of the Aadhaar Card and Birth Certificate. Thus, the trial court came to the conclusion that, the accused was a minor on the date of the alleged incident.
It has also been observed that though Sessions Judge came to the conclusion that the accused was a minor but without referring to the provisions of Sections 15 and 18 of the JJ Act.
Adding to the above stated, Sessions Judge also stated that the accused committed heinous offence and it is purely conferred on the Special Court to decide the age under Section 34 of the JJ Act and therefore, the Sessions Court has jurisdiction to proceed with the trial. Accordingly, the said application was dismissed and against the order present appeal was preferred.
Observation and Conclusion
Sessions Judge did enquire into the matter and came to the conclusion that the accused was above the age of 16 years and below 18 years, but without referring to the Sections 15 and 18 of the Act, the provisions have been mechanically mentioned in its’ order. Only on the ground that the offence is heinous in nature, Sessions Judge got the power to proceed with the trial.
Now, noting the above-stated position, High Court meticulously looked at Section 15 and 18 of the JJ Act in order to consider whether the Sessions Judge has the power to pass such an order holding the offence heinous and that the accused can be tried by Sessions Court itself.
The Court thus stated that, if the Board is satisfied on preliminary assessment and arrived at a conclusion that the Board can on its own dispose of the case, then on such eventuality; board shall not send the Juvenile to Sessions Court for trial. Therefore, it is clear that such power is exclusively vested with the Board to pass such an order.
Therefore, Court held that Sessions Judge or the Special Judge or the Child-Friendly Court, presided over by the Sessions Judge have absolutely no power to pass any order under Section 15 of the Act. It is the statutory power vested with the Boards. [Puneet S. v. State of Karnataka, 2019 SCC OnLine Kar 1835, decided on 23-09-2019]
For further reading:
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Juvenile Cannot Be Transferred To Children’s Court If Crime Committed Not Heinous Offence Under JJ Act
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Del HC | JJ Board Not Bound By Expert Opinion In Preliminary Assessment, May Disagree With The Report And Not Treat CCL as Adult
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Del HC | S. 19(1) Of JJ Act Held Mandatory; However, Non-Compliance By Children’S Court Held Curable Irregularity
