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Madhya Pradesh High Court · body

2018 DIGILAW 942 (MP)

Sourabh v. State Of M. P.

2018-11-01

G.S.AHLUWALIA

body2018
JUDGMENT : 1. Considered I.A. No.404/2018 and I.A. No. 1442/2018. 2. I.A. No.404/2018 has been filed for suspension of sentence, whereas I.A. No. 1442/2018 has been filed under Section 9 of Juvenile Justice (Care and Protection of Children) Act, 2015. 3. The appellant No.2 Shivam has been convicted for offence under Sections 363 and 366 of I.P.C. and has been sentenced to undergo the rigorous imprisonment of 3 years and a fine of Rs. 500/- and rigorous imprisonment of 5 years and a fine of Rs.1000/- with default imprisonment, respectively. 4. I.A. No.1442/2018 has been filed by the both the appellants, claiming themselves to be juvenile on the date of incident. However, on 5-4-2018, the Counsel for the appellants, withdrew the application on behalf of the appellant no.1 Sourabh and accordingly, this Court by order dated 5-4-2018 passed the following order in respect of appellant no.2 Shivam. ''By relying on the mark-sheet of Class VIII of appellant No. 2 Shivam Sharma, it is submitted by the counsel for the appellants that the incident took place on 22/2/2017 and the date of birth of appellant Shivam Sharma is 5/4/2000 which clearly shows that he was juvenile on the date of incident. It is fairly conceded by the counsel for appellant No. 2 Shivam Sharma that no objection was raised by the appellant before the trial Court with regard to the age of appellant No. 2. In the light of the submissions made by the counsel for the appellants, the Juvenile Justice Board Shivpuri is directed to conduct an enquiry with regard to the age of appellant No. 2 Shivam S/o Jagdish Prasad Sharma. The pairokar of appellant No. 2 Shivam Sharma is directed to appear before the Juvenile Justice Board Shivpuri along with certified copy of this order as well as all the original documents in support of his age on 30th April, 2018. The State shall also appear before the Juvenile Justice Board, Shivpuri on 30th April, 2018. The Office is directed to send a copy of this order to the Juvenile Justice Board Shivpuri for necessary information and compliance. The Juvenile Justice Board is directed to submit the report as early as possible preferably within a period of three months from 30th April, 2018.'' 5. Accordingly, the JJB, Shivpuri submitted a report, that the appellant no. The Office is directed to send a copy of this order to the Juvenile Justice Board Shivpuri for necessary information and compliance. The Juvenile Justice Board is directed to submit the report as early as possible preferably within a period of three months from 30th April, 2018.'' 5. Accordingly, the JJB, Shivpuri submitted a report, that the appellant no. 2 Shivam was 16 years, 10 months and 17 days of age, on the date of incident, and thus he was minor. 6. Therefore, the question for determination is that whether this Court, should remand the matter back to JJB, Shivpuri to decide the question of sentence, while maintaining the conviction, or should set aside the conviction of the appellant no.2 Shivam, with a direction to proceed in accordance with Law. 7. Before proceeding further, this Court is of the considered opinion, that different provisions of Juvenile Justice (Care and Protection of Children), Act, 2015 (Act, 2015) may be considered. Section 9 of Act, 2015 reads as under :- ''9. Procedure to be followed by a Magistrate who has not been empowered under this Act.— (1) When a Magistrate, not empowered to exercise the powers of the Board under this 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. (2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be: Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made there under even if the person has ceased to be a child on or before the date of commencement of this Act. (3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect. (4) In case a person under this section is required to be kept in protective custody, while the person’s claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.'' Section 15 of the Act, 2015 reads as under :- ''15. Preliminary assessment into heinous offences by Board.— (1) 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 circumustances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of Section 18: Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts. Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. (2) 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 in summons case under the Code of Criminal Procedure, 1973 (2 of 1974): Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of Section 101: Provided further that the assessment under this section shall be completed within the period specified in Section 14.'' Section 18 of Act, 2015, reads as under :- ''18. Orders regarding child found to be in conflict with law.—(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,— (a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian; (b) direct the child to participate in group counselling and similar activities; (c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board; (d) order the child or parents or the guardian of the child to pay fine: Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated; (e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child’s well-being for any period not exceeding three years; (f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child’s well-being for any period not exceeding three years; (g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home: Provided that if the conduct and behaviour of the child has been such that, it would not be in the child’s interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety. (2) If an order is passed under clauses (a) to (g) of subsection (1), the Board may, in addition pass orders to— (i) attend school; or (ii) attend a vocational training centre; or (iii) attend a therapeutic centre; or (iv) prohibit the child from visiting, frequenting or appearing at a specified place; or (v) undergo a de-addiction programme. (3) Where the Board after preliminary assessment under Section 15 pass an order that there is a need for trial of the said child 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.'' Section 19 of Act, 2015, reads as under : ''19. Powers of Children’s Court.—(1) After the receipt of preliminary assessment from the Board under Section 15, the Children’s Court may decide that — (i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the provisions of this section and Section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere; (ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of Section 18. (2) The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow-up by the probation officer or the District Child Protection Unit or a social worker. (3) The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail: Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety. (4) The Children’s Court shall ensure that there is a periodic follow-up report every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form. (5) The reports under sub-section (4) shall be forwarded to the Children’s Court for record and follow-up, as may be required.'' 8. Thus, from the plain reading of Section 9 of Act, 2015, it is clear that where a person is found to be a juvenile on the date of commission of offence, then the Magistrate, who is not empowered to exercise the powers of the Board under this Act, has to forward the child, along with record of such proceedings to the Board having jurisdiction. Section 9(3) of the Act, 2015 provides that If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect. Section 15 of the Act, 2015 provides that the Board shall make preliminary assessment into henious offences and after conducting a preliminary assessment with regard to the mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which the child in conflict has allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of Section 18, and Section 18(3) of the Act, 2015 provides that Board after preliminary assessment under Section 15 may pass an order that there is a need for trial of the said child 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. 9. Therefore, now the question is that where an objection is raised for the first time before the Appellate Court, with regard to the juvenility of the accused, and if it is found that the appellant/accused was juvenile on the date of commission, then what course of action can be adopted by the appellant Court ? 10. 9. Therefore, now the question is that where an objection is raised for the first time before the Appellate Court, with regard to the juvenility of the accused, and if it is found that the appellant/accused was juvenile on the date of commission, then what course of action can be adopted by the appellant Court ? 10. It is clear that when a child in conflict is brought before the Board, that the Board shall first make a preliminary assessment into heinous offence, and may pass an order under Section 18(3) of the Act, 2015. Thereafter, the Children's Court, is further required to make an order under Section 19(1) of Act, 2015. 11. By referring to Section 9 (3) of the Act, 2015, it is submitted by the Counsel for the appellant no.2, that this Court, while maintaining the conviction, may remit the matter back to the JJB, for determination of question of sentence. 12. Per contra, it is submitted by the Counsel for the State, that the Court may pass appropriate orders in the matter. 13. The moot question for determination is that whether, the matter has to be remanded back to the JJB after setting aside the conviction also, or this Court, while maintaining the conviction, may remand the matter back to the JJB for consideration of question of sentence. 14. Prior to Act, 2015, there was no provision for trial of a Juvenile above the age of 16 years on the date of commission of offence, as an adult by the Children's Court. 15. Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2000 (In Short Act, 2000), reads as under : ''15. 14. Prior to Act, 2015, there was no provision for trial of a Juvenile above the age of 16 years on the date of commission of offence, as an adult by the Children's Court. 15. Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2000 (In Short Act, 2000), reads as under : ''15. Order that may be passed regarding juvenile.—(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit,— (a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile; (b) direct the juvenile to participate in group counselling and similar activities; (c) order the juvenile to perform community service; (d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money; (e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years; (f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years; (g) make an order directing the juvenile to be sent to a special home for a period of three years: Provided that the Boards may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.] (2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order. (3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law : Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home. (4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer.'' 16. It is clear from Section 15 of Act, 2000, that apart from passing other orders, the JJB under Section 15(1)(g) of Act, 2000, had a power to send a juvenile to a Special Home, for a period of three years or less then 3 years by recording the reasons. However, now the position has changed, and now after making preliminary assessment into heinous offence, the JJB may pass an order under Section 18(3) of Act, 2015. In the light of provisions of Section 9(1) of Act, 2015, only the JJB can pass an order under Section 18(3) of Act, 2015 after making preliminary assessment into heinous offence. 17. However, now the position has changed, and now after making preliminary assessment into heinous offence, the JJB may pass an order under Section 18(3) of Act, 2015. In the light of provisions of Section 9(1) of Act, 2015, only the JJB can pass an order under Section 18(3) of Act, 2015 after making preliminary assessment into heinous offence. 17. At this stage, it is submitted by the Counsel for the applicant, that this Court may also pass an order under Section 18(3) of Act, 2015, however, the submission made by the Counsel for the applicant, cannot be accepted, in the light of Section 9(1) of Act, 2015. 18. It is submitted by the Counsel for the appellant no.2, that while maintaining the conviction, this Court may remit the case back to the JJB for passing an order under Section 15 of Act, 2015. To buttress his contentions, the Counsel for the appellant no.2, has relied upon the judgments passed by the Supreme Court in the case of Ashwani Kumar Saxena Vs. State of M.P. reported in (2012) 9 SCC 750 , Jitendra Singh Vs. State of U.P. reported in (2013)11 SCC 193 . 19. The submission made by the Counsel for the appellant no.2 cannot be accepted. 20. As per the provisions of Section 15 of the Act, 2015, it is for the JJB to consider whether or not to pass an order under Section 18(3) of the Act, 2015. This discretion of the JJB cannot be taken away by this Court, and the discretion has to be exercised by the JJB only, that whether the child in conflict who was more than 16 years of age, on the date of commission of offence, should be tried as an adult by a Children's Court or not. 21. Further, even after the matter is transferred to the Children's Court, still the Children's Court has to pass an order under Section 19(1)(a) or (b) of Act, 2015. 21. Further, even after the matter is transferred to the Children's Court, still the Children's Court has to pass an order under Section 19(1)(a) or (b) of Act, 2015. Another discretion has to be exercised by the Children's Court, that whether there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the provisions of this section and Section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere or may pass an order holding that there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of Section 18. 22. Thus, it is clear that it is for the JJB to consider and make preliminary assessment into heinous offence, and then to pass necessary order under Section 15 /18(3) of the Act, 2015, and even if the JJB decides that the matter should be transferred to the Children's Court for trial as an adult, then still the Children's Court would be required to pass an order under Section 19(1) of the Act, 2015. 23. Thus, if this Court, maintains the conviction already recorded against the appellant no.2, then it would amount to taking away of the discretion vested in JJB and Children's Act under Section 15 and 19 of the Act, 2015. 24. So far as the judgments passed by the Supreme Court in the cases of Ashwani Kumar (Supra) and Jittendra Singh (Supra)are concerned, the same are distinguishable, because in those cases, the provisions of Juvenile Justice Act, 1986 and Act, 2000 were applicable, but in the present case, the offence has been committed on 22-2-2017, after coming into force of Act, 2015. 25. Thus, in the considered opinion of this Court in the light of provisions of Section 9, 15,18(3) and 19(1) of Act, 2015, this Court, has no option but to set aside the conviction and sentence recorded against the appellant no.2 Shivman and to remand the matter to JJB Shivpuri to proceed in accordance with law. 26. 25. Thus, in the considered opinion of this Court in the light of provisions of Section 9, 15,18(3) and 19(1) of Act, 2015, this Court, has no option but to set aside the conviction and sentence recorded against the appellant no.2 Shivman and to remand the matter to JJB Shivpuri to proceed in accordance with law. 26. Thus, as per the report of the JJB, Shivpuri, wherein the appellant no.2 Shivam was found to be juvenile, of the age of 16 years, 10 months and 17 days, on the date of occurrence, it is held that the appellant no.2 Shivam, was a juvenile on the date of incident, i.e., 22-2-2017 and accordingly, the conviction and sentence dated 11-12-2017 passed by 2nd Additional Sessions Judge, Karera, Distt. Shivpuri in S.T No.64/2017, qua the appellant no.2 Shivam is set aside. 27. The matter is remanded back to the JJB, Shivpuri, to proceed against the appellant no.2, Shivam, in accordance with law. 28. Accordingly, the appeal filed by the appellant no.2 Shivam, is finally disposed of. 29. The office is directed to transfer the record of the Trial Court, to the JJB Shivpuri, with a direction to the JJB, Shivpuri, to immediately send back the photo copy/scanned copy of the entire record of the Trial Court. 30. Under these circumstances, I.A. No. 404/2018, which is an application under Section 389 of Cr.P.C. is rejected as infructuous. I.A. No.1442/2018, also stands disposed of.