Ajeet Gurjar vs The State Of Madhya Pradesh

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.3023 OF 2023 (Arising out of S.L.P.(Crl.) No.4493 of 2023)

AJEET GURJAR ... APPELLANT(S)

VS.

THE STATE OF MADHYA PRADESH ... RESPONDENT(S)

JUDGMENT

ABHAY S OKA,J.

Leave granted.

2. Heard the learned counsel appearing for the

parties.

3. The only issue involved in this appeal is regarding

non-compliance with the requirement of clause (i) of sub-

section 1 of Section 19 of the Juvenile Justice (Care and

Protection of Children) Act, 2015 (for short "JJ Act")by

the Children’s Court.

4. For the sake of completion, a brief reference to Signature Not Verified Digitally signed by relevant factual aspects will be necessary. A First Anita Malhotra Date: 2023.10.06 10:48:51 IST

Information Report was registered against the accused Reason: 1 persons including the present appellant alleging the

commission of offences punishable under Sections 302,

307, 147, 148, 149, 395 and 397 of the Indian Penal Code

(IPC), 11/13 of the Madhya Pradesh Dakaiti Aur Vyapharan

Prabhavit Kshetra Adhiniyam,1981 (MPDVPK Act) and

Section 25 and 27 of Arms Act,1959. The Charge sheet

was filed on 12th September 2016. On the basis of an order

passed under sub-section (3) of Section 18 of the JJ Act,

the Juvenile Justice Board transferred the case to the

jurisdictional Children’s Court. An application was made

by the appellant before the Children's Court (a Special

Court constituted for trials of offences under the MPDVPK

Act) seeking compliance with the requirements of Sub-

section 1 of Section 19 read with Sections 6 and 15 of

the JJ Act. Reliance was also placed in the said

application on the Juvenile Justice (Care and Protection

of Children) Model Rules, 2016 (for short, "JJ Model

Rules").

5. The Trial Court rejected the application. In fact,

the Trial Court directed that the trial shall proceed

further. Being aggrieved by the order of the Trial

Court, the appellant invoked the powers of the High Court

under Section 482 of the Code of Criminal Procedure, 1973

(Cr. P.C). The High Court rejected the petition. The

2 High Court noted that the charges have been framed

against the appellant by the Children's Court. The High

Court held that only after complying with the requirement

of making the assessment under Section 15 of the JJ Act,

an order was passed under sub-section (3) of Section 18

of the JJ Act. The High Court also noted the antecedents

of the appellant and the fact that the present age of the

appellant was 24 years. Moreover, the High Court held

that the Special Court constituted for the trials of the

offences under the MPDVPK Act is also a children's Court.

6. We may refer to section 15(1) of the JJ Act which

reads thus:

"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 sub- section (3) of section 18:

Provided that for such as assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

3 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."

(Emphasis added)

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 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.

8. Section 19 of JJ Act reads thus:-

"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 -

4 (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."

(Emphasis added)

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 Code of Criminal

Procedure, 1973. If the Court is satisfied that the

child needs to be tried as an adult as per the provisions

of Cr.P.C., 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

5 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.

12. The observation of the High Court that the order

passed under sub-section (3) of Section 18 has attained

finality completely ignores that the order under sub-

section (3) of Section 18 is not a final adjudication on

the question of trying the child as an adult. The reason

is that the order under sub-section (3) of Section 18 is

6 based on a preliminary assessment made under Section 15.

As such order is based only on a preliminary assessment,

the law provides for a further inquiry in terms of sub-

section (1) of Section 19 by the competent Children’s

Court. Hence, the Children’s Court cannot brush aside the

requirement of holding an inquiry under clause (i) of

sub-section (1) of Section 19.

13. The learned counsel appearing for the appellant

pointed out that the Special Court under the MPDVPK Act

at Gwalior, Madhya Pradesh is also trying the cases of

dacoity and similar serious offences. He pointed out

that in the Sessions Court at Gwalior, there is a Special

Court under the Protection of Children from Sexual

Offences Act, 2012 (for short, 'POCSO Act') which is also

empowered to act as a Children's Court. We direct the

learned Sessions Judge at Gwalior to examine this aspect,

and if the Special Court under the POCSO Act is a

Children's Court and is not already overburdened, he will

administratively transfer the case to the said Court.

14. By setting aside the impugned orders, we direct the

Special Court to comply with the requirement of sub-

section 1 of Section 19 of the JJ Act. We expect the

Special Court to decide the issue as expeditiously as

possible. While holding an inquiry as contemplated by

7 sub-section 1 of Section 19, the concerned Court shall

have regard to provisions of Rule 13 of the Modal Rules

framed under the JJ Act.

15. The appeal is allowed on the above terms.

..........................J. (ABHAY S.OKA)

..........................J. (PANKAJ MITHAL)

NEW DELHI;

September 26, 2023.

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