Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah,  J. dismissed the revision application as the order of the Juvenile Justice Board needed no interference.

The petitioner approached the Court under Section 102 of the Juvenile Justice (Care & Protection of Children) Act, 2015, against the order passed by the Additional Sessions Judge, Siwan by which the order of the  Juvenile Justice Board, Siwan, holding the petitioner to be more than 18 years on the date of occurrence, has been upheld.

The Juvenile Justice Board, Siwan, had called for a report of juvenility which opined that the petitioner was 20-21 years in August 2012. it was submitted by the petitioner that on their request before the Juvenile Justice Board that X-ray report and Dental report be also called for determining the age, the Board had sent for it, but in the order passed by it on 30-03-2016, it relied upon the first report holding the petitioner to be more than 18 years of age on the date of occurrence. The petitioner also relied on the entry in the school admission register of Class I which was produced in evidence but had not been relied upon by the Board on the ground that the name of the petitioner’s father was not mentioned in the register.

Jharkhandi Upadhyay, APP submitted that a report in regard to a number of teeth the petitioner had, which was a relevant factor in determining the age, was brought on record. Such a report was received holding that the petitioner had 32 teeth. Thus, the Board while correlating the first medical report with the fact that the petitioner had 32 teeth had rightly arrived at the conclusion that he was more than 18 years of age on the date of occurrence i.e. 27-04-2011.  It was also submitted that the teacher, who had deposed at the time of considering the admission register of Class I, had not stated either the date of birth or the name of the father of the petitioner and had also admitted that entry made in the said register at two places were in different ink.

The Court held that the Appellate Court had rightly not interfered with the order and there were no merits in the present application as the Juvenile Justice Board had correctly appreciated the facts and had given cogent reasons for the same.[Jitendra Mahto v. State of Bihar, 2019 SCC OnLine Pat 1908, decided on 04-11-2019]

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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]


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Delhi High Court: Sanjeev Sachdeva, J. declined to quash criminal proceedings pending against the petitioner even while holding that Section 19(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 was a mandatory provision and the Children’s Court did not comply with the same.

The petitioner was alleged to have committed penetrative sexual assault on the victim. He was booked under Sections 342 376 IPC, and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The Juvenile Justice Board completed the preliminary assessment in terms of Section 15 of the JJ Act and held the petitioner was required to face trial as an adult. The case was transferred to the Children’s Court which framed charges as aforementioned. The petitioner, represented by Harsh Prabhakar and Anirudh Tanwar, Advocates, contended that the Children’s Court failed to comply with the mandatory requirement of Section 19(1)of the JJ Act and as such, the proceedings were liable to be quashed. Per contra, Hiren Sharma, APP appearing for the State, opposed the petition.

The question before the High Court was as to whether Section 19(1) of the JJ Act is mandatory or directory and the effect of non-compliance thereof. Notably, in terms of Section 19(1), after receipt of the preliminary assessment from the Board under Section 15, Children’s Court is to decide: (i) as to whether there is need for trial of the child as an adult as per the provisions of CrPC, and/or (ii) there is no need for the trial of the child as an adult, in which case, it shall conduct an inquiry as a Board and to pass orders in accordance with Section 18.

The Court observed: “The expression used in Section 19(1) ‘may decide’. The expression ‘may’ used in Section 19 does not give an option to the Children’s Court to decide or not to decide in terms of Section 19, but the expression ‘may decide’ is an option to the Children’s Court to chose between option (i) and option (ii) i.e. as to whether there is need for trial of the child as an adult or there is no need for trial of the child as an adult.” It was held that this becomes clear when Rule 13 of the JJ Model Rules, 2016 is examined.

The Court held: “Reading of Rule 13 in conjunction with Section 19 of JJ Act clearly shows that it is obligatory on the part of the Children’s Court to take a decision after receipt of the preliminary assessment report from the Board as to whether there is need for trial of the child as an adult or as a child. Appropriate speaking order recording reasons for arriving at the conclusion is to be passed by the Children’s Court.”

Admittedly, in the present case, there was non-compliance with the requirement of Section 19(1) by the Children’s Court. However, the Court was of the opinion that the same would not vitiate the proceedings thereafter undertaken, but would be an irregularity which was curable. The reason being, that in both eventualities, i.e. trial as an adult and trial as a child, the proceedings have to continue before the Children’s Court. In terms of Rule 13(7), in case the Children’s Court decides that there is no need for a trial of the child as an adult, then, it has to conduct an inquiry as if it were functioning as a Board and follow the procedure for trial of the summon cases. Whereas, in case the children’s Court decides to try the child as an adult, then, it has to conduct the trial following the procedure of trial by Sessions Court. in either eventually, charge/notice which is to be framed on the same set facts, would not be altered in so far as the offence is concerned. The only difference is as to the procedure to b followed by the Children’s Court for trial.

Finding support for the position taken by it from the Judgments of the Supreme Court in Willie (William) Slaney v. State of M.P., (1995) 2 SCR 1140 and Supdt. and Remembrancer of Legal Affairs v. Anil Kumar Bhunja(1979) 4 SCC 274, the High Court held that in the present case there was no prejudice caused to the petitioner. In such view of the matter, the Court found to the ground to interfere with the impugned order of framing charges or the proceedings conducted thereafter.

However, since the Children’s Court had not passed any order in terms of Section 19 read with Rule 13(1) and Rule 13(6), the children’s Court was directed to pass an order in terms thereof. The petition was disposed of accordingly.[CCL L.K v. State, 2019 SCC OnLine Del 9075, decided on 09-07-2019]

Bail Application
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Himachal Pradesh High Court: Tarlok Singh Chauhan, J. allowed a criminal revision petition filed by the State assailing the Judgment passed by Principal Magistrate whereby a juvenile was acquitted, holding the said order to be Coram non-judis.

The case was instituted on 28-09-2010 when the Juvenile Justice Act, 2000 was in operation; Section 4(2) whereof states that “A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973, on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as the Principal Magistrate.

Further, Section 5(3) of the JJ Act states “A Board may act notwithstanding the absence of any member of the Board, and no order made by the Board shall be invalid by reason only of the absence of any member during any stage of proceedings: Provided that there shall be at least two members including the principal Magistrate present at the time of final disposal of the case.”

The Court noted that while the JJ Act was amended in the year 2015, no changes were made with regard to the composition mentioned in Section 4(2) of the JJ Act, 2000. Reliance was placed on the judgment in Hasham Abbas Sayyad v. Usman Abbas Sayyad, (2007) 2 SCC 355, where it was held that an order passed by a magistrate beyond his jurisdiction would be considered void ab initio. It was opined that where a Court takes upon itself to exercise a jurisdiction it has not possessed its decision amounts to nothing”.

Since in the present case, the impugned order was passed by the Magistrate sitting singly, and without fulfilling the criteria of composition required for functioning of the Juvenile Justice Board (JJ Board), therefore the impugned order was set aside and the case was remanded to JJ Board for deciding the case afresh in accordance with law after hearing both the parties.[State of Himachal Pradesh v. Happy, 2019 SCC OnLine HP 700, decided on 28-05-2019]

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Delhi High Court: Chander Shekhar, J. refused to interfere with the order of the Juvenile Justice Board whereby it had directed that the two children in conflict with the law in the present cause shall not be treated as adults.

The petitioner was the father of the deceased, Mandeep. An FIR was registered under Sections 363, 302, 201 and 34 IPC in connection with Mandeep’s murder. After going through the material on record including the preliminary assessment reports prepared b experts, the JJ Board passed the order to treat the children in conflict with law as children and were ordered to be tried before the JJ Board as children. The petitioner challenged the order of the JJ Board, but the Additional Sessions Judge upheld the order. Aggrieved thereby, the petitioner filed the present revision petition.

Perusing the record, as well as relevant sections the Juvenile Justice (Care and Protection of Children) Act, 2015, the High Court was of the view that order of the JJ Board did not require interference. Discussing Section 15 and the proviso thereto, the court observed: “There is no doubt that the JJ Board may seek the opinion of an expert regarding the mental and physical capacity of CCL to commit an offence and it is not necessary that if an expert opined that the mental and physical capacity of CCL and his ability to understand the consequence of the offence are positive, then the JJ Board is bound by the expert opinion. It is well within the jurisdiction of the JJ Board to agree or disagree with the preliminary assessment report of the CCL submitted by such a psychologist to the JJ Board.” Having regard to the facts of the present case, it was held that the JJ Board had applied its mind before coming to the conclusion that the two children in conflict shall not be treated as adults. In such view of the matter, the petition was dismissed.[Pradeep Kumar v. State (NCT of Delhi), 2019 SCC OnLine Del 8251, decided on 15-04-2019]