Paragraph numbers below are the court’s original numbering, recovered from the source text.
29. The provisions contained in Section 9(1) stipulate that when a Magistrate not empowered to exercise the power of the Board 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 having jurisdiction.
30. Sections 9(2) and 9(3) cast a burden that where the Court 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 1244 committed the offence was a child on date of commission of such offence, forward such person to the Board for passing appropriate orders and sentence, if any, passed by the Court shall be deemed to have no effect.
31. 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, and hence, even assuming that Sessions Court at Salem had been designated as a Children’s Court, there was no option for the said Court but to forward the child to the concerned Board for further directions.
32. 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) of the JJ Act. Section 15(1) 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, after conducting such assessment, may pass an order in accordance with the provisions of sub-section (3) of Section 18 of the JJ Act. Section 15(2) provides that where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial of summons case under CrPC. Under first proviso to this sub-section, the order passed by the Board is appealable under Section 101(2) of the JJ Act.
33. Section 18(3) provides that where the Board after preliminary assessment under Section 15 opines that there is a need for the said child to be tried as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.
34. By virtue of Section 19(1), the Children’s Court, upon receiving such report of preliminary assessment undertaken by the Board under Section 15 may further decide as to whether there is a need for trial of the child as an adult or not. [2024] 3 S.C.R. Thirumoorthy v. State Represented by the Inspector of Police
35. The procedure provided under Sections 15 and 19 has been held to be mandatory by this Court in the case of Ajeet Gurjar v. State of Madhya Pradesh3. In the said case, this Court considered the import of Section 19(1) of the JJ Act 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) provides that after examining the matter, if the Children’s Court comes to the conclusion that there is no need for trial of the child as an adult, instead of sending back the matter to the Board, the Court itself is empowered to conduct an inquiry and pass appropriate orders in accordance with provisions of Section 18 of the JJ Act. The trial of a child as an adult and his trial as a juvenile by the Children’s Court have different consequences.
36. It was further held that the Children’s Court cannot brush aside the requirement of holding an inquiry under Section 19(1)(i) of the JJ Act. Thus, all actions provided under Section 19 are mandatorily required to be undertaken by the Children’s Court.
37. 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. 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. In absence of a preliminary assessment being conducted by the Board under Section 15, and without an order being passed by the Board 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. Thus, it is evident that the procedure adopted by the Sessions Court in conducting the trial of the accused appellant is de hors the mandatory requirements of JJ Act.
40. Thus, on the face of the record, the proceedings undertaken by the Sessions Court in conducting trial of the CICL, convicting and sentencing him as above are in gross violation of the mandate of the Act and thus, the entire proceedings stand vitiated. 2023 SCC Online SC 1255 1246
41. It seems that pursuant to the trial being concluded, the trial Court 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 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. All the proceedings taken against the accused appellant are vitiated as being in total violation of the mandatory procedure prescribed under the JJ Act.
43. In the case of Karan Alias Fatiya(supra) relied upon by learned counsel for the State, this Court interpreted Section 9(3) and held that this sub-section does not specifically or impliedly provide that the conviction recorded by any Court 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 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. In the case of Pawan Kumar(supra), the plea of juvenility raised by the accused did not find favour of the Sessions Court as well as the High Court. 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 and the age of juvenility was 16 years as provided in the then prevailing Juvenile Justice Act, 1986. 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 and thus, the accused was entitled to be treated as a juvenile by virtue of the provisions of the JJ Act prevailing when the appeal was taken up. [2024] 3 S.C.R. Thirumoorthy v. State Represented by the Inspector of Police Since the accused had already undergone the maximum punishment of detention provided under the said Act, i.e., three years, it was directed that the accused therein be released forthwith.
45. In the above two referred cases, the situation presented was that the factum regarding the accused being a child within the meaning of the JJ Act 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. In the case of Ajeet Gurjar(supra), this Court remitted back the matter to the Sessions Court for complying with the requirements of Section 19(1) of the JJ Act. 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. At the cost of repetition, it may be reiterated that the charge sheet was filed against the accused appellant directly before the Sessions Court (statedly designated as a Children’s Court) and he was never presented before the Juvenile Justice Board as per the mandate of the JJ Act.
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.
48. 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.
49. 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, 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. 1248
50. 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. The appeal is allowed accordingly.
52. Pending application(s), if any, shall stand disposed of. Headnotes prepared by: Divya Pandey Result of the case: Appeal allowed.