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2025 DIGILAW 353 (HP)

A v. State of H. P.

2025-03-12

RAKESH KAINTHLA

body2025
JUDGMENT : (Rakesh Kainthla, J.) The present appeal is directed against the judgment dated 25.5.2019, passed by learned Sessions Judge, Special Court (POCSO Act), Kinnaur, H.P., vide which the appellant (child in conflict with law ‘CCL’ before learned Trial Court) was convicted of the commission of offences punishable under Sections 376 and 342 of the Indian Penal Code ( IPC ) and Section 4 of Protection of Children from Sexual Offences Act (POCSO Act) and was sentenced as under:- Under Section 376 of IPC/Section 4 of POCSO Act. To suffer rigorous imprisonment for a period of seven years, pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for one year. Under Section 342 of IPC To suffer simple imprisonment for one year, pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further simple imprisonment for three months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the CCL for the commission of offences punishable under Sections 376 , 342 and 506 of IPC and Section 4 of the POCSO Act. It was asserted that the victim and her younger brother had gone to fetch water on 2.11.2016 at some distance from the village. The CCL came to the spot in a state of intoxication. He dragged the victim into a cowshed near the tap and raped her. He bolted the cowshed and went away from the spot. The victim’s sister searched for her. She found someone crying inside the cowshed. She opened the door. The victim reached her home and narrated the incident to her father. The police registered the FIR (Ex.PW13/F) and conducted the investigation. The police filed a charge sheet against the CCL after the completion of the investigation before the Juvenile Justice Board. 3. The Juvenile Justice Board found that CCL was more than 16 years of age but less than 18 years of age, and he had committed a heinous offence within the meaning of Section 2(33) of the Juvenile Justice (Care and Protection) Act, 2015 (JJ Act). Hence, the preliminary assessment was to be conducted. 3. The Juvenile Justice Board found that CCL was more than 16 years of age but less than 18 years of age, and he had committed a heinous offence within the meaning of Section 2(33) of the Juvenile Justice (Care and Protection) Act, 2015 (JJ Act). Hence, the preliminary assessment was to be conducted. Learned Principal Magistrate, vide order dated 28.2.2017, held that MLC of CCL shows that he had the physical capacity to commit the offence. He had passed 10+1 class. Thus, he was physically and mentally fit to commit the offence. There was nothing to show that he was unable to understand the consequence of his act. The CCL made a statement before the Board showing that he was physically and mentally fit to commit the offence. His counsel did not object to the case being committed to the learned Special Judge under Section 18(3) of the Juvenile Justice Act. Hence, the case was committed to the learned Special Judge. 4. Learned Special Judge framed the charges against the CCL for the commission of offences punishable under Sections 376 , 342 and 506 of IPC and Section 4 of the POCSO Act. The prosecution evidence was led. The learned Special Judge convicted and sentenced the CCL for the commission of the offences as aforesaid after the conclusion of the trial. 5. Being aggrieved from the judgment passed by the learned Trial Court, the CCL has approached this Court by filing the present appeal. 6. I have heard Ms Anu Tuli, learned counsel for the CCL and Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State. 7. Ms Anu Tuli, learned counsel for the CCL, submitted that the Juvenile Justice Board and the learned Special Judge failed to conduct proper proceedings. The case of the CCL could not have been sent to the learned Special Judge merely on the admission of the counsel without conducting the preliminary inquiry. Learned Special Judge was also bound to conduct the inquiry. The proceedings against the CCL are vitiated. CCL has undergone imprisonment awarded to him. The CCL is entitled to an acquittal because of the absence of the inquiry conducted by the learned Juvenile Justice Board and learned Special Judge. She relied upon the judgment of the Hon’ble Supreme Court in Thirumoorthy v. State , 2024 SCC OnLine SC 375 , in support of her submission. 8. Mr. CCL has undergone imprisonment awarded to him. The CCL is entitled to an acquittal because of the absence of the inquiry conducted by the learned Juvenile Justice Board and learned Special Judge. She relied upon the judgment of the Hon’ble Supreme Court in Thirumoorthy v. State , 2024 SCC OnLine SC 375 , in support of her submission. 8. Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State, submitted that the learned counsel for the CCL has himself consented to send the case to the learned Special Court for trial, and no grievance can be made by the CCL. He had committed a heinous offence and was rightly tried by learned Special Judge. There is no infirmity in the procedure adopted by the learned Courts below. Hence, he prayed that the present appeal be dismissed. 9. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 10. Section 15 of the Juvenile Justice Act deals with the procedure for conducting the preliminary assessment regarding the mental and physical capacity to commit the offence, the ability to understand the consequence of the offence and the circumstances in which the offence was committed. It 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 circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (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 a child to commit and understand the consequences of the alleged offence. 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 a 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 Criminal Procedure Code, 1973: 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.” 11. Section 18 (3) of the Juvenile Justice Act provides that when the Board is satisfied after the preliminary assessment that the child has committed a heinous offence, and there is a need for a trial of the said child as an adult, then the Board may transfer the trial of the case to children’s Court having jurisdiction. It reads as under: - 18. Orders regarding child found to be in conflict with law.—xxxx (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. 12. It was held in Barun Chandra Thakur v. Bholu , (2023) 12 SCC 401 that the order of preliminary assessment decides whether a CCL is to be tried as an adult by the Children’s Court or by the Board itself. These consequences are serious in nature. Therefore, a social investigation report and the report of the Psychologist are required to be called. The Board can conduct the inquiry by adopting any procedure, but it cannot determine the capacity to commit the crime simply on the basis of the education record. The word “may” in Section 15(1) of the Act regarding taking assistance from experienced psychologist, psycho-social workers or other experts has to be read as mandatory. It was observed:- “83. The Board can conduct the inquiry by adopting any procedure, but it cannot determine the capacity to commit the crime simply on the basis of the education record. The word “may” in Section 15(1) of the Act regarding taking assistance from experienced psychologist, psycho-social workers or other experts has to be read as mandatory. It was observed:- “83. Therefore, looking to the purpose of the 2015 Act and its legislative intent, particularly to ensure the protection of the best interest of the child, the expression “may” in the proviso to Section 15(1) thereof and the requirement of taking assistance of experienced psychologists or psycho- social workers or other experts would operate as mandatory unless the Board itself comprises of at least one member who is a practising professional with a degree in child psychology or child psychiatry. Moreover, in case the Board, in view of its own composition with at least one member, who is a practising professional with a degree in child psychology or child psychiatry, chooses not to take such assistance, it would record specific reasons therefor.” 13. Section 19 of the Juvenile Justice Act deals with the power of the Children’s Court and reads that after the receipt of the preliminary assessment from the Board, the Children’s Court may decide if there is a need for a trial of the child as an adult and pass an appropriate order considering the special needs of the child or may hold that there is no need for the trial of the child as an adult and may conduct an inquiry as a Board. It reads as under:- 19. Powers of Children's Court. — (1) After the receipt of the preliminary assessment from the Board under Section 15, the Children's Court may decide that— (i) there is a need for a trial of the child as an adult as per the provisions of the Criminal Procedure Code, 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 a 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)-(5)..……..” 14. (2)-(5)..……..” 14. It was laid down by the Hon’ble Supreme Court in Ajeet Gurjar v. State of M.P. , (2023) 15 SCC 678 , that an inquiry must be conducted by the Board regarding the mental and physical capacity of the juvenile in conflict with the law about his ability to comprehend the repercussions of the offence and the circumstances under which it was committed. The Children’s Court is also required to conduct a further inquiry under Section 19. It was observed:- “7. What is required to be done by the Juvenile Justice Board is holding an inquiry for making a preliminary assessment with regard to the mental and physical capacity of the juvenile in conflict with the law to commit such offence, ability to understand the consequences of the offence and circumstances in which the juvenile has allegedly committed the offence. Based on the preliminary assessment, sub-section (3) of Section 18 empowers the Juvenile Justice Board to pass an order for transferring the trial of the case to the Children's Court, which has jurisdiction to try such offences. Thus, the order of transfer is based on only a preliminary assessment. 9. There are two parts to sub-section (1) of Section 19. The first part requires the Children's Court to decide whether there is a need for trial of the child as an adult as per the provisions of the Criminal Procedure Code, 1973. If the Court is satisfied that the child needs to be tried as an adult as per the provisions of CrPC, the Children's Court can proceed with the trial and thereafter pass an appropriate order subject to the provisions of Sections 19 and 21 of the JJ Act. 10. Clause (ii) of sub-section (1) of Section 19 is very crucial which indicates that though the word “may” have been used in the opening part of sub-section (1) of Section 19, the same will have to be read as “shall”. Clause (ii) provides that after examining whether there is a need for a trial of the child as an adult, if the Children's Court comes to the conclusion that there is no need for the 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 Juvenile Justice Board has different consequences. 11. Therefore, holding an inquiry in terms of clause (i) of sub-section (1) of Section 19 is not an empty formality. The reason is that if the Children's Court comes to the conclusion that there is no need to try the child as an adult, he will be entitled to be treated differently in the sense that action can be taken against him only in terms of Section 18 of the JJ Act.” 15. It was submitted that these judgments were delivered in the year 2023 whereas the trial was concluded in the year 2019 and the Juvenile Justice Board had passed the order in 2017. The judgment of a Court cannot be applied retrospectively. This submission is only stated to be rejected. It was laid down by the Hon’ble Supreme Court in Kanishk Sinha v. State of W.B., 2025 SCC OnLine SC 443 that law made by a legislature is always prospective, whereas the law interpreted by the Constitutional Court is always retrospective unless the judgment specifically states that it will operate prospectively. It was observed:- “Now the law of prospective and retrospective operation is absolutely clear. Whereas a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpreted by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. The prospective operation of a judgment is normally done to avoid any unnecessary burden to persons or to avoid undue hardships to those who had bona fidely done something with the understanding of the law as it existed at the relevant point of time. Further, it is done not to unsettle something which has long been settled, as that would cause injustice to many.” 16. Therefore, the submission that a judgment delivered in 2023 cannot be applied to the proceedings conducted in the years 2017 and 2019 is not acceptable. 17. Further, it is done not to unsettle something which has long been settled, as that would cause injustice to many.” 16. Therefore, the submission that a judgment delivered in 2023 cannot be applied to the proceedings conducted in the years 2017 and 2019 is not acceptable. 17. It was laid down by the Hon’ble Supreme Court in Thirumoorthy v. State , 2024 SCC OnLine SC 375 that where the Children’s Court had not conducted the inquiry, the proceedings were bad. The CCL cannot be asked to be retried as such an inquiry cannot be conducted because of his advanced stage. It was observed:- “32. There is no dispute on the aspect that the o with 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 the 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 the trial of summons case under CrPC. Under the 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. 35. 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. 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 Pradesh 2023 SCC OnLine SC 1255 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 a 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 the 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. 38. In the 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 the JJ Act. 40. Thus, on the face of the record, the proceedings undertaken by the Sessions Court in conducting a 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. 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. xxxxx 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. 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 the 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. 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.” 18. In the present case, the Juvenile Justice Board had not conducted any effective inquiry and relied upon merely the educational qualification of the juvenile without taking assistance of the psychologist. Learned Special Judge had also not conducted any inquiry as required under Section 19 of the JJ Act. Hence, the proceedings against the CCL are non-est. The CCL has also undergone the sentence imposed by learned Special Judge, and no fruitful purpose would be served by sending the matter to the Juvenile Justice Board to conduct the preliminary inquiry and thereafter to conduct a fresh trial. This would be a sheer abuse of the process of the Court because the CCL has already undergone the sentence imposed upon him by the learned Special Judge. This would be a sheer abuse of the process of the Court because the CCL has already undergone the sentence imposed upon him by the learned Special Judge. CCL would have to face the ordeal of trial without any fruitful purpose because of having undergone the sentence imposed upon him. Therefore, the proceedings are to be quashed as per the judgment in Thirumoorthy (supra). 19. Consequently, the present appeal is allowed, and the judgment and order dated 25.5.2019, passed by the learned Special Judge are ordered to be set aside. 20. The present appeal stands disposed of and so are the pending applications if any. 21. The record of the learned Courts below be returned with a copy of this order.