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2023 DIGILAW 1093 (BOM)

Kiran Dnyaneshwar v. State of Maharashtra

2023-05-02

R.G.AVACHAT

body2023
JUDGMENT/ORDER 1. This is an application for suspension of substantive sentence of imprisonment. The applicant/appellant has been convicted by learned Special Judge (POCSO), Aurangabad, vide order dtd. 17/1/2023 in Special Case (POCSO) No.161 of 2019, for the offences punishable under Ss. 376(2)(i) of Indian Penal Code and Sec. 4(2) of the Protection of Children from Sexual Offences Act and therefore, sentenced to suffer rigorous imprisonment for ten years and to pay fine, with default stipulation. 2. Heard learned counsel for the parties. 3. Learned counsel for the applicant would mainly submit that there is non-compliance of certain mandatory provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 ("Act of 2015") and therefore, the application deserves to be allowed. On merits of the case as well, he would submit it to be a fit case for suspension of substantive sentence of imprisonment. He adverted the Court's attention to the inconsistencies between the victim's statement to the police and her evidence before the Court. 4. Learned counsel representing the victim filed affidavit-inreply. The affidavit contained the reasons given by the trial Court with appreciation of the evidence in the case. According to learned counsel, the victim was of the age of 7 years at the material time. According to him, Sec. 19 of the Act of 2015 is not mandatory. The word "may" appearing in sub-sec. (1) was adverted to in support of his submissions. According to learned counsel, the applicant did not prefer appeal against the order passed under Sec. 15 of the Act. The applicant, therefore, could not be heard to say that there was non-compliance of Sec. 19 of the Act of 2015. The order passed by the Juvenile Justice Board about preliminary assessment had become final and then only, the applicant was tried. According to learned counsel, time is not ripe for release of the applicant on bail. Learned APP reiterated the submissions made by learned counsel representing the victim. 5. Considered the submissions advanced. Perused the impugned judgment and relevant provisions of the Act of 2015. 6. The applicant allegedly committed aggravated penetrative sexual assault on the victim, aged seven years at the relevant time. True, the applicant appears to have committed a heinous offence and he, therefore, may not be entitled for grant of application on factual merits of the case, but for non-compliance of certain mandatory provisions of the Act of 2015. 6. The applicant allegedly committed aggravated penetrative sexual assault on the victim, aged seven years at the relevant time. True, the applicant appears to have committed a heinous offence and he, therefore, may not be entitled for grant of application on factual merits of the case, but for non-compliance of certain mandatory provisions of the Act of 2015. It would, therefore, be necessary to reproduce the relevant provisions thereof. 7. Sec. 2(13) of the Act of 2015 defines the term "child in conflict with law", to mean - 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. Sec. 2(20) defines "Children's Court" to mean - a court established under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court under the Protection of Children from Sexual Offences Act, 2012 (32 of 2012), wherever existing and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act. Sec. 25 of the Commissions for Protection of Child Rights Act, 2005, reads :- Children's Courts.- For the purpose of providing speedy trial of offences against children or of violation of child rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify at least a court in the State or specify for each district, a Court of Session to be a Children's Court to try the said offences:- Provided that nothing in this Sec. shall apply if- (a) a Court of Session is already specified as a special court; or (b) a special court is already constituted, for such offences under any other law for the time being in force. In short, it is the Court of Session, which is competent to deal with/try heinous offence committed by a child. 8. Sec. 2(33) defines "heinous offences", as under:- < WXY>"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</ WXY> 9. Chapter II of the Act of 2015 speaks of general principles of care and protection of children. Sec. 3 reads :- < WXY>3. Chapter II of the Act of 2015 speaks of general principles of care and protection of children. Sec. 3 reads :- < WXY>3. General principles to be followed in administration of Act.- The Central Government, the State Governments, the Board, the Committee or other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely: - - (i) Principle of presumption of innocence:- Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years. (ii) .......... (iii) Principle of participation:- Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child. (iv) Principle of best interest:- All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential (v) .......... (vi) .......... (vii) .......... (viii) .......... (ix) .......... (x) .......... (xi) .......... (xii) .......... (xiii) .......... (xiv) .......... (xv) .......... (xvi) Principles of natural justice : Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act. Sec. 14 speaks of inquiry by the Board regarding child in conflict with law. Sub-sec. (1) thereof reads :- (1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under Sec. s 17 and 18 of this Act. (2) .......... (3) A preliminary assessment in case of heinous offences under Sec. 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board. (4) .......... (5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:- (a) .......... (b) .......... (c) every child brought before the Board shall be given the opportunity of being heard and participate in the inquiry; (d) .......... (e) .......... (4) .......... (5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:- (a) .......... (b) .......... (c) every child brought before the Board shall be given the opportunity of being heard and participate in the inquiry; (d) .......... (e) .......... (f) inquiry of heinous offences,- (i) .......... (ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed under Sec. 15. Sec. 15 of the Act of 2015 reads :- 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 circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsec. (3) of Sec. 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 Sec. , 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-sec. (2) of Sec. 101: Provided further that the assessment under this Sec. shall be completed within the period specified in Sec. 14. Sec. 18(3) of the Act of 2015 reads :- 18. Orders regarding child found to be in conflict with law.- (1) ..... (2) ..... (3) Where the Board after preliminary assessment under Sec. 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. (2) ..... (3) Where the Board after preliminary assessment under Sec. 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. Sec. 19 of the Act of 2015 reads :- 19. Powers of Children's Court.- (1) After the receipt of preliminary assessment from the Board under Sec. 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 and pass appropriate orders after trial subject to the provisions of this Sec. and Sec. 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 Sec. 18. (2) ..... (3) ..... (4) ..... (5) ..... Sec. 21 of the Act of 2015 reads :- 21. Order that may not be passed against a child in conflict with law.- No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code or any other law for the time being in force. Sec. 101 of the Act of 2015 reads :- 101. Appeals.- (1) Subject to the provisions of this Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty days from the date of such order, prefer an appeal to the Children's Court, except for decisions by the Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District Magistrate: Provided that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time and such appeal shall be decided within a period of thirty days. (2) An appeal shall lie against an order of the Board passed after making the preliminary assessment into a heinous offence under Sec. 15 of the Act, before the Court of Sessions and the Court may, while deciding the appeal, take the assistance of experienced psychologists and medical specialists other than those whose assistance has been obtained by the Board in passing the order under the said Sec. . (3) ..... (4) ..... (5) Any person aggrieved by an order of the Children's Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973.</ WXY> 10. The Central Government, in exercise of powers conferred by proviso to sub-sec. (1) of Sec. 110 of the Act of 2015, has made model rules. Rule 11 thereof speaks of completion of inquiry of preliminary assessment under Sec. 15 of the Act of 2015. Rule 13 speaks of procedure in relation to Children's Court and Monitoring Authorities. Rule 13 needs to be reproduced below. < WXY>13. Procedure in relation to Children's Court and Monitoring Authorities.- (1) Upon receipt of preliminary assessment from the Board the Children's Court may decide whether there is need for trial of the child as an adult or as a child and pass appropriate orders. (2) Where an appeal has been filed under subsec. (1) of Sec. 101 of the Act against the order of the Board declaring the age of the child, the Children's Court shall first decide the said appeal. (3) Where an appeal has been filed under subsec. (2) of Sec. 101 of the Act against the finding of the preliminary assessment done by the Board, the Children's Court shall first decide the appeal. (4) Where the appeal under sub-sec. (2) of Sec. 101 of the Act is disposed of by the Children's Court on a finding that there is no need for trial of the child as an adult, it shall dispose of the same as per Sec. 19 of the Act and these rules. (5) Where the appeal under sub-sec. (4) Where the appeal under sub-sec. (2) of Sec. 101 of the Act is disposed of by the Children's Court on a finding that there is no need for trial of the child as an adult, it shall dispose of the same as per Sec. 19 of the Act and these rules. (5) Where the appeal under sub-sec. (2) of Sec. 101 of the Act is disposed of by the Children's Court on a finding that the child should be tried as an adult the Children's Court shall call for the file of the case from the Board and dispose of the matter as per the provisions of the Act and these rules. (6) The Children's Court shall record its reasons while arriving at a conclusion whether the child is to be treated as an adult or as a child. (7) Where the Children's Court decides that there is no need for trial of the child as an adult, and that it shall decide the matter itself: (i) It may conduct the inquiry as if it were functioning as a Board and dispose of the matter in accordance with the provisions of the Act and these rules. (ii) The Children's Court, while conducting the inquiry shall follow the procedure for trial in summons case under the Code of Criminal Procedure, 1973. (iii) The proceedings shall be conducted in camera and in a child friendly atmosphere, and there shall be no joint trial of a child alleged to be in conflict with law, with a person who is not a child. (iv) When witnesses are produced for examination the Children's Court shall ensure that the inquiry is not conducted in the spirit of strict adversarial proceedings and it shall use the powers conferred by Sec. 165 of the Indian Evidence Act, 1872 (1 of 1872). (v) While examining a child in conflict with law and recording his statement, the Children's Court shall address the child in a child-friendly manner in order to put the child at ease and to encourage him to state the facts and circumstances without any fear, not only in respect of the offence which is alleged against the child, but also in respect of the home and social surroundings and the influence to which the child might have been subjected. (vi) The dispositional order passed by the Children's Court shall necessarily include an individual care plan in Form 7 for the child in conflict with law concerned, prepared by a Probation Officer or Child Welfare Officer or recognized voluntary organisation on the basis of interaction with the child and his family, where possible. (vii) The Children's Court, in such cases, may pass any orders as provided in sub-sec. s (1) and (2) of Sec. 18 of the Act.</ WXY> 11. Admittedly, the applicant was 16 years, 1 month and 5 days old, while he committed the offence in question. The Board conducted inquiry under Sec. 15 of the Act of 2015. It has been observed in paragraph 9 of the order dtd. 2/5/2018, as under:- < WXY>"09. Though there are no criminal antecedents of present C.C.L. If a boy of 16 years of age physically gets attracted towards the girl of his age, then it is quite natural conduct. In this case, the victim is of 7 years. Therefore, nature of allegations against C.C.L. and act alleged is perverse. Such perverse act of C.C.L. is harmful to the society at large and cannot be accepted. Such perverse behaviour is dangerous to the society as well as for the C.C.L. Moreover, as per the allegations C.C.L. took victim to dilapidated Z.P. School building and then sexually assaulted her. This shows that C.C.L. is well aware that such act could not be done in the place where people are present or has easy access. C.C.L. chose the place where no one easily come. These circumstances also shows that he is well aware that what kind of act he is going to commit. Thereafter, he committed such act. Medical examination report of C.C.L. shows that he is capable of performance for sexual intercourse. In these circumstances Board is of opinion that C.C.L. has mental and physical capacity to commit such offence. He has ability to understand consequences of offence and thereafter he allegedly committed offence of rape. Therefore, there is need of trial of C.C.L. as adult. Hence, it will be appropriate to transfer the case to the Children Court having jurisdiction to try such offence. Hence, Board pass following order:- ORDER 1. Case is transferred to Children Court, Aurangabad as per Sub Sec. 3 of Sec. 18 of Juvenile Justice (Care and Protection of Children) Act, 2015. 2. Hence, it will be appropriate to transfer the case to the Children Court having jurisdiction to try such offence. Hence, Board pass following order:- ORDER 1. Case is transferred to Children Court, Aurangabad as per Sub Sec. 3 of Sec. 18 of Juvenile Justice (Care and Protection of Children) Act, 2015. 2. C.C.L. is directed to appear before Children Court, Aurangabad, on 14/5/2018."</ WXY> 12. Close reading of the order under Sec. 15 of the Act of 2015, indicates that there was no participation of the applicant therein. He appears to have not been given an opportunity of hearing. As such, it is a breach of the provisions of Sec. 3(iii) and (xvi) and Sec. 14(2) and 14(5)(c) of the Act of 2015. It also appears that a copy of the order passed under Sec. 15 of the Act of 2015 was not served to the applicant. As such, there is noncompliance of Rule 10-A(4) of the model Rules. For better appreciation, said Rules are reproduced below. 4) Where the Board, after preliminary assessment under Sec. 15 of the Act, passes an order that there is a need for trial of the said child as an adult, it shall assign reasons for the same and the copy of the order shall be provided to the child forthwith. 13. True, the applicant did not prefer an appeal under Sec. 101(2) against the order of preliminary assessment, passed under Sec. 15 of the Act of 2015. 14. The question is whether, provisions of Sec. 19(1) of the Act of 2015 are mandatory. Close reading of the said Sec. would indicate that the Children's Court has to take a call to decide, as to whether there is need for trial of a child as an adult, before proceeding to try him. 15. It appears that there is some anomaly in the provisions of Sec. 19 and Sec. 101(2) of the Act of 2015. After preliminary assessment, the Board is expected to refer the child to the Children's Court, if it finds him to be tried by the Children's Court, while Sec. 101(2) of the Act of 2015 indicates that it is the Court of Session, which is appellate authority against the order passed under Sec. 15. After preliminary assessment, the Board is expected to refer the child to the Children's Court, if it finds him to be tried by the Children's Court, while Sec. 101(2) of the Act of 2015 indicates that it is the Court of Session, which is appellate authority against the order passed under Sec. 15. True, for all practical purposes, in terms of the definition of the Children's Court stated herein above, it would be the Sessions Court, which is competent to decide the appeal and even try the child, who is alleged to have committed a heinous offence. In view of this Court, when the child could not prefer an appeal under Sec. 101(2) of the Act of 2015, it would be mandatory on the Children's Court to first decide, whether there was need or not for trial of the child as an adult. When, in the present case, the applicant did not prefer an appeal against the order of preliminary assessment, passed under Sec. 15 of the Act of 2015, it was obligatory on the part of the Children's Court to comply with the provisions under Sec. 19(1)(i) or (ii) before it tried the applicant as an adult and convicted him. It also appears that the Board could have availed assistance of a Psychiatrist or an expert before passing the order under Sec. 15. This Court, therefore, finds the applicant to have been prejudiced in exercise of its rights under the Act of 2015, particularly, participation in the proceedings under Sec. 15 and non-compliance of Sec. 19(1) of the Act of 2015. 16. Since the application for suspension of substantive sentence of imprisonment is being decided, it is observed that the aforesaid findings are tentative in nature. 17. It will take time for the appeal to come up for hearing on merits. It would, therefore, be desirable to list the appeal for final hearing on the next date. 18. During hearing of the appeal, if the Court finally comes to the conclusion consistent with the findings recorded in this application, situation can be remedied by remanding the matter back to the Board and/or the Children's Court to comply with the mandatory procedural aspect and then deal with the applicant in accordance with law. It is reiterated that post commission of the offence, the applicant was on bail. It is reiterated that post commission of the offence, the applicant was on bail. On his conviction by the Children's Court, he has been taken into custody and is behind the bars. At the time he committed the crime, he was 16 years and little over one month of age. 19. For all the aforesaid reasons, the application is allowed. During pendency of the appeal, the substantive sentence of imprisonment to stand suspended. The applicant be released on executing P.R. Bond in the sum of Rs.15,000.00 (Rupees Fifteen Thousand) with one surety in the like amount.