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2018 DIGILAW 7 (SIK)

Lakpa Dorjee Tamang v. State of Sikkim

2018-03-09

BHASKAR RAJ PRADHAN, SATISH K.AGNIHOTRI

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JUDGMENT : SATISH K. AGNIHOTRI, J. 1. On allegation of having committed an offence under Section 3(a)/5(l) of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act, 2012), the appellant herein was arrested and produced before the Principal Magistrate, Juvenile Justice Board, South District at Namchi. The Principal Magistrate, Juvenile Justice Board, South District at Namchi, by Order dated 05.09.2015, placed the juvenile-appellant in the custody of Juvenile Observation Home, Gangtok, recording the age of juvenile as 15 years. It appears, in the course of investigation, the Investigating Officer (I.O.) came across a birth certificate of the said juvenile, wherein the date of birth recorded was 19.03.1997. The I.O., instead of bringing this fact into the notice of Juvenile Justice Board for appropriate order, made an application on 15.09.2015 in the Court of the Judicial Magistrate, South District at Namchi in connection with Jorethang PS Case No.49/2015. Learned Judicial Magistrate, by Order dated 15.09.2015, held, on the basis of birth certificate of the accused, that the accused was not a juvenile. Thus, the accused/ juvenile was removed from the Juvenile Observation Home, Gangtok and remanded to judicial custody. 2. Mr. Gulshan Lama, learned Counsel appearing for the Appellant, would contend that once a delinquent has been found juvenile by the Juvenile Justice Board, he could not be removed and placed in judicial custody without following proper procedure of law under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, JJ Act, 2015). Referring to Sections 7, 8 and 94 of the JJ Act, 2015, learned Counsel would further contend that the entire trial committed on the basis of the Order dated 15.09.2015 passed by the learned Judicial Magistrate, South District at Namchi, without verifying the age of the appellant under the provisions of the JJ Act, 2015, is vitiated and deserves to be set aside. 3. Mr. Karma Thinlay, learned Additional Public Prosecutor, fairly submits that custody of appellant was made over to judicial custody on the basis of birth certificate, which is conclusive. He further submits that no order was obtained from the Juvenile Justice Board. On the basis of an order passed by the learned Judicial Magistrate, the appellant was transferred/removed from the Juvenile Observation Home, Gangtok to judicial custody. 4. He further submits that no order was obtained from the Juvenile Justice Board. On the basis of an order passed by the learned Judicial Magistrate, the appellant was transferred/removed from the Juvenile Observation Home, Gangtok to judicial custody. 4. On examination of the pleadings and annexures thereto, it appear that the appellant, being a child in conflict with law, was produced before the Juvenile Justice Board, South District at Namchi. The Juvenile Justice Board, by Order dated 05.09.2015, placed the appellant in the Juvenile Observation Home, Gangtok. Section 7 of the JJ Act, 2015 contemplates that the Board shall observe all the rules in regard to the transaction of business at its meetings. It is further provided that in the event of having come to know that the child is an adult, the Board, comprising of atleast two members including the Principal Magistrate, shall pass the order under sub-section (3) of Section 18 of the JJ Act, 2015 that there is a need for trial of the said child as an adult and may direct transfer from the observation home to the appropriate place/custody. 5. On bare perusal of the provisions of the JJ Act, 2015, it is manifest that the Juvenile Justice Board alone is competent to determine the age of a child in conflict with law, who was initially held as juvenile by the Board. In the case on hand, the I.O. has not cared to bring into notice of the Juvenile Justice Board the fact of discovery of date of birth certificate of the said juvenile, which indicates that the said juvenile was more than 18 years of age at the time of commission of offence. The I.O. made an application with the birth certificate before the Judicial Magistrate on 15.09.2015. The learned Judicial Magistrate ignoring the scheme of the JJ Act, 2015, passed the order removing the appellant from the Juvenile Observation Home, Gangtok and placing him in judicial custody. Thereafter, the matter was committed and the trial of the appellant was held as an adult. 6. The learned Judicial Magistrate ignoring the scheme of the JJ Act, 2015, passed the order removing the appellant from the Juvenile Observation Home, Gangtok and placing him in judicial custody. Thereafter, the matter was committed and the trial of the appellant was held as an adult. 6. We are, therefore, of the considered opinion that in the process, the mandatory provisions, as contemplated under the JJ Act, 2015 when the appellant was held at juvenile at the initial stage, have not been complied with and as such, it is required that the Juvenile Justice Board, South District at Namchi be directed to examine the case further in respect of the age of the appellant and submit a report to this Court within a period of three weeks. 7. Registry of this Court is directed to send the complete case file to the Principal Magistrate, Juvenile Justice Board, South District at Namchi forthwith. 8. List it after receipt of report from the Principal Magistrate, Juvenile Justice Board, South District at Namchi.