Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 526 (ORI)

SUDHIRA MAHANTA v. STATE OF ORISSA

2016-07-15

S.K.SAHOO

body2016
ORDER S.K. Sahoo, J. - Heard learned counsel for the appellant Sudhira Mahanta and learned counsel for the State. 2. Perused the report dated 28.6.2016 of the Chief Judicial Magistrate-cum-Principal Magistrate, Juvenile Justice Board, Keonjhar. It seems that the Board has conducted enquiry in terms of the Central Rule-12 (3)(a) (ii) of Juvenile Justice (Care and Protection of Children) Rules, 2007 and Orissa Rule-22 (4)(b) (ii) of the Juvenile Justice (Care and Protection of Children) Rules, 2000 and during course of inquiry, the father of the appellant so also the Headmaster incharge of Kudapi Primary School were examined and basing on their statements as well as the entry of date of birth in the Admission Register, Juvenile Justice Board, Keonjhar opined that as on the date of the occurrence i.e., 20.07.2012, the age of the appellant was seventeen years two months and five days and therefore, he had not completed the age of 18 years on the alleged date of occurrence and he was a juvenile-in-conflict with law as per the definition under Section 2 (I) of the Juvenile Justice Act. 3. In this case, the appellant faced trial under sections 366(A)/376 of the Indian Penal Code for inducing the victim girl to have sexual intercourse with him and raped her without her consent. The learned Trial Court vide impugned judgment and order dated 8.7.2015 found the appellant guilty under section 376 of the Indian Penal Code and sentenced him to undergo R.I. for a period of 7 (seven) years and to pay a fine of Rs. 10,000/- (rupees ten thousand) and in default of payment of fine, to undergo R.I. fora period of one year more. 4. The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter "2015 Act") has been brought into force on 15.1.2016, vide S.O. 110 (E), dated 12.01.2016. There is no such term like "Juvenile in conflict with law" in the 2015 Act like section 2 (I) of the Juvenile Justice (Care and Protection of Children) Act, 2000. "Juvenile" has been defined in Section 2 (35) of the 2015 Act which means a child below the age of eighteen years. There is no such term like "Juvenile in conflict with law" in the 2015 Act like section 2 (I) of the Juvenile Justice (Care and Protection of Children) Act, 2000. "Juvenile" has been defined in Section 2 (35) of the 2015 Act which means a child below the age of eighteen years. Section 2(12) of the 2015 Act defines ?child' and 2 (13) of the 2015 Act defines ?child in conflict with law'which means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. 5. Under Section 2(33) of the 2015 Act "heinous offences" has been defined as follows: "2 (33) "heinous offences" includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more." 6. There is no dispute that the Section 376 of the Indian Penal Code prescribes such punishment and therefore, it comes within ??heinous offence". 7. In view of Section 15 of 2015 Act, preliminary assessment into the heinous offence by Board has been laid down wherein it is stated 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 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 the Board may pass an order in accordance with the provisions of Sub-section (3) of Section 18. The section further provides that the Board may take the assistance of experienced psychologists or psycho-social workers or other experts for making such assessment. Obviously, when 2015 Act has come into force and it was directed to the Juvenile Justice Board to conduct an enquiry vide order dated 03.05.2016, relevant provisions of Section 15 of 2015 Act should have been taken note of by the Board which has not been done. Section 111 of the 2015 Act clearly states that the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) has been repealed. 8. Section 111 of the 2015 Act clearly states that the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) has been repealed. 8. In view of the above, the report dated 28.6.2016 furnished by Chief Judicial Magistrate-cum-Principal Magistrate, Juvenile Justice Board, Keonjhar is not accepted. A fresh report be called for so as to reach this Court within three months. 9. Copy of the impugned judgment along with the copy of the Misc. Case No. 1747 of 2015, transfer certificate which has been annexed to the Misc. Case, the report dated 28.6.2016 furnished by the Juvenile Justice Board and the orders passed by this Court bn 03.05.2016 as well as today's order be sent to the Juvenile Justice Board for conducting necessary inquiry and report. 10. Put up this matter immediately after receipt of the report of the Juvenile Justice Board. 11. A free copy of the order be supplied to the learned counsel for the State.