Central Bureau Of Investigation vs State Of Haryana And Others
- Court
- Punjab and Haryana High Court
CRM-M-24867-2018 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
268
CRM-M-24867-2018 (O&M)
Date of decision : 30.10.2026
Central Bureau of Investigation ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Prateek Gupta, Advocate
for the petitioner-CBI.
Mr. Neeraj Poswal, AAG, Haryana
for respondent No.1-State of Haryana.
Mr. Viraj Gandhi, Advocate
for respondent No. 2 (JCL Bholu).
None for respondents No. 3 and 4.
Mr. Sushil K. Tekriwal, Advocate
for the complainant.
MANISHA BATRA, J. (Oral)
1. This petition has been filed by the Central Bureau of Investigation
(for short 'CBI') under Section 482 read with Section 407 of the Code of
Criminal Procedure, 1973 (for short 'Cr.P.C.') for transfer of the trial of Sessions
Case No. 110 of 2018 titled as 'State versus Bholu' and other miscellaneous
matters arising out of FIR No. 250 dated 08.09.2017, registered under Sections
302 IPC, 25/54/59 of the Arms Act, 12 of the Protection of Children from Sexual
Offences Act, 2012 (for short ‘POCSO Act’) and 75 of the Juvenile Justice (Care
and Protection of Children) Act, 2015 (for short ‘JJ Act’) read with Section 34
IPC at Police Station Bhondsi, District Gurugram (re-registered by the CBI as
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RC-08(S)/2017/SC-III/New Delhi) from the Court of learned Additional
Sessions Judge-cum-Children's Court, Gurugram to the Court of learned Special
Judge, CBI, Panchkula.
2. Briefly stated, the case pertains to the murder of a seven year old
student of Class II, who has been given the imaginary name 'Prince'. The
occurrence took place on 08.09.2017 in the ground floor washroom of a school
at Gurugram, which has been given the imaginary name 'Vidyalaya'. The
aforementioned FIR No. 250 (Annexure P-3) was registered on the statement of
the father of the deceased at Police Station Bhondsi, District Gurugram. The
case was initially investigated by the Gurugram Police. On the same day, the
police arrested one Ashok Kumar, a conductor, on the allegation of having
committed the murder of Prince. Two officials of the school, namely Francis
Thomas and Jayesh Thomas (respondents No. 3 and 4), were also arrested by
the police in the same FIR for various lapses. They were granted bail by this
Court vide order dated 07.10.2017.
3. Vide notification dated 17.09.2017 (Annexure P-1), the
Government of Haryana accorded its consent under Section 6 of the Delhi
Special Police Establishment Act, 1946 (for short 'DSPE Act') to the extension
of the powers and jurisdiction of the members of the Delhi Special Police
Establishment to the State of Haryana for investigation of the case. Thereafter,
the Government of India issued a notification dated 22.09.2017 (Annexure P-2)
under Section 5(1) read with Section 6 of the DSPE Act. On the same day, the
CBI re-registered the FIR as RC-08(S)/2017/SC-III/New Delhi and took up the
investigation.
4. During investigation, the CBI apprehended respondent No. 2 on
07.11.2017. He was a student of Class XI in the same school and has been given
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the imaginary name 'Bholu'. He was below eighteen years of age on the date of
occurrence and was, thus, a child in conflict with law. As discernible from the
record, the Juvenile Justice Board, Gurugram, while making a preliminary
assessment under Section 15 of the JJ Act, vide order dated 20.12.2017,
observed that there was a need for trial of respondent No. 2 as an adult. The case
was accordingly sent to the learned Sessions Judge, Gurugram. On 22.12.2017,
the learned Sessions Judge, Gurugram transferred the case to the learned Special
Children's Court, Gurugram. The CBI filed the charge sheet against respondent
No. 2 under Section 302 IPC before that Court on 05.02.2018. In the same charge
sheet, the CBI prayed for discharge of Ashok Kumar, as no evidence was found
against him. He was, accordingly, discharged by the trial Court on 28.02.2018.
5. The order dated 20.12.2017, passed by the Board, was upheld in
appeal by the learned Children's Court, Gurugram on 21.05.2018. However, in
a petition bearing CRR-2366-2018 , this Court set aside both the orders on
11.10.2018 and remanded the matter to the Board for a fresh preliminary
assessment. The remand was upheld by the Hon'ble Supreme Court on
13.07.2022 in Barun Chandra Thakur v. Master Bholu and another, [2022]
10 S.C.R. 595 . On remand, the Board vide order dated 17.10.2022 again held
that respondent No. 2 was required to be tried as an adult. The appeal against
that order was dismissed by the learned Children's Court, Gurugram on
13.12.2022, and the revision petition bearing CRR-452-2023 filed by respondent
No. 2 was dismissed by this Court on 03.05.2023, with a direction to expedite
the trial.
6. The present petition has been filed by the CBI. It is submitted in
the petition that CBI has an exclusive Court of Special Judge at Panchkula
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having jurisdiction all over Haryana. There is also an exclusive Court of Special
Judicial Magistrate for CBI cases of Haryana at Panchkula. It is pleaded that the
present case has been investigated by the CBI and, therefore, the CBI Court at
Panchkula has exclusive jurisdiction to try it, in view of the different
notifications issued by the Registrar General of this Court and the Government
of Haryana. The notifications dated 08.02.2012 and 29.05.2013 have been
annexed as Annexure P-4 Colly . It is the stand of the CBI that no prejudice would
be caused to the accused by the transfer of trial to Panchkula.
7. During the pendency of the petition, the CBI filed an additional
affidavit vide application CRM-7657-2026 , whereby an alternative prayer has
been made for transfer of the trial to any other Children's Court in the Sessions
Division of Panchkula. The CBI has relied upon the existence of a Children's
Court at Panchkula under Section 25 of the Commissions for Protection of Child
Rights Act, 2005. It has also referred to the trial of the adult accused arising out
of the same FIR before the Special Court, CBI, Panchkula and to the
inconvenience in the movement of the record and the travel of the prosecution
team. Reliance has also been placed upon the observations made regarding the
conduct of respondent No. 2 and his family members in the order dated
06.10.2021 passed in CRA-S-443-2021 (Annexure P-9).
8. Respondent No. 1-State has filed its reply by way of an affidavit
dated 22.07.2018 of Dinesh Kumar, HPS, Assistant Commissioner of Police,
Sohna, whereby it is submitted that the State has no objection if this Court comes
to the conclusion that the trial may be transferred to the Court of learned Special
Judge, CBI, Panchkula. Respondent No. 2 has filed a reply dated 30.10.2025
through his father, opposing the petition. He has also filed a reply dated
12.05.2026 to the additional affidavit filed by the CBI. Respondents No. 3 and
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4 have been exonerated by the investigating agency. Hence, there is no
representation on their behalf.
9. Learned counsel for the petitioner-CBI has argued that the
investigation of the case was entrusted to the CBI vide the notifications
Annexures P-1 and P-2 issued under Sections 5 and 6 of the DSPE Act. Once
the investigation has been taken over by the CBI, it becomes the prosecuting
agency for the case. The Court of Special Judge, CBI, Panchkula deals with the
CBI cases of the entire State of Haryana, as reflected in the notification
Annexure P-4 Colly. The trial of respondent No. 2 should, therefore, be
conducted by that Court. No prejudice would be caused to respondent No. 2 by
the transfer, as the Special Judge is also a Court of Session. In the alternative, a
Children's Court also exists at Panchkula under Section 25 of the Commissions
for Protection of Child Rights Act, 2005, and the trial can be transferred to that
Court.
10. Learned counsel for the CBI has further argued that the proceedings
against the adult accused, including police officials, arising out of the same FIR
are pending before the Special Court, CBI, Panchkula. The evidence in the two
cases is intertwined and the same record is required in both of them. The
movement of the record and the travel of the prosecution team to Gurugram is
causing inconvenience to the prosecution. Learned counsel has also referred to
the conduct of respondent No. 2 and his family members, as noticed in the order
dated 06.10.2021 (Annexure P-9). To buttress his arguments learned counsel for
the CBI has heavily relied upon the judgment of the Hon'ble Supreme Court in
Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 . On the
strength of this judgment, it is argued that the beneficial provisions of the
juvenile justice law do not override a special enactment, and that the 'ends of
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justice' mean justice to all the parties, including the society at large. On these
premises, it is argued that the petition deserves to be allowed.
11. Learned State counsel has argued, in line with the reply filed by
respondent No. 1, that the State has no objection to the transfer of the trial to the
Court of learned Special Judge, CBI, Panchkula.
12. Learned counsel for the complainant, who is the father of the
deceased, has supported the petition and has adopted the arguments advanced
on behalf of the CBI. It is argued that the trial of respondent No. 2 and the trial
of the adult accused arise out of the same occurrence and should be held by the
same Court. This would enable the entire evidence to be appreciated together,
and complete justice would be done to the family of the deceased.
13. Per contra , learned counsel for respondent No. 2 has argued that
respondent No. 2 was a child in conflict with law on the date of occurrence.
Once the Board directs the trial of such a child as an adult, the trial can be held
only by the Children's Court having jurisdiction under Section 18(3) of the JJ
Act. Section 1(4) of the JJ Act gives it an overriding effect over any other law,
including the Cr.P.C. and the DSPE Act. The notifications Annexures P-1 and
P-2 relate only to the power of investigation and cannot confer jurisdiction to try
the case. A Court of Special Judge, CBI is meant for trial of adults and lacks the
safeguards provided under Section 19 of the JJ Act. It provides no child friendly
environment and no individual care plan as mandated by the JJ Act. The forum
of trial is determined by the nature of the offence and the character of the
accused, and not by the identity of the investigating agency.
14. Learned counsel for respondent No. 2 has further argued that the
CBI itself filed the charge sheet before the Children's Court, Gurugram and
participated in the proceedings without any objection. It is, therefore, estopped
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from seeking transfer of the trial. Substantial number of prosecution witnesses
have already been examined and the trial is in progress. A transfer at this stage
may lead to a de novo trial and cause further delay. The occurrence took place
at Gurugram, and respondent No. 2, his family and the school officials are based
there. The inconvenience of the CBI is only administrative and is no ground for
transfer under Section 407 Cr.P.C.
15. Regarding the additional affidavit, learned counsel for respondent
No. 2 has argued that the alternative prayer has been raised for the first time after
the filing of the reply. It is an attempt to improve the case without any
amendment of the pleadings. The mere existence of a Children's Court at
Panchkula does not confer jurisdiction upon it. The witnesses cited against
respondent No. 2 are distinct from the witnesses in the case of the adult police
officials. Section 23 of the JJ Act itself bars joint proceedings of a child with a
person who is not a child. The existence of two separate trials is, therefore, a
statutory requirement and cannot be a ground for transfer. The observations
made in the bail proceedings were not findings on merits. They stood diluted by
the grant of interim bail by the Hon'ble Supreme Court vide order dated
20.10.2022 (Annexure P-11) in Special Leave to Appeal (Crl.) No. 8691 of
2021. They have no nexus with the forum of trial. It is also argued that a
composite petition under Sections 407 and 482 Cr.P.C. is not maintainable. To
buttress his arguments learned counsel has relied upon the authorities cited as
National Investigation Agency v. Amritpal Singh @ Amrit Singh, CRM-M-
19293-2021, decided on 26.07.2022 (P&H) ; CCL 'A' v. State (NCT of Delhi),
2020 SCC OnLine Del 2970 and Satya Narain Sharma v. State of Rajasthan,
(2001) 8 SCC 607 .
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16. This Court has heard the rival submissions at considerable length,
besides going through the material placed on record.
17. Two questions arise for consideration in this petition. The first is
whether the trial of a child in conflict with law, who has been directed to be tried
as an adult, can be transferred to the Court of Special Judge, CBI only because
the case has been investigated by the CBI? The second is whether any ground is
made out under Section 407 Cr.P.C. for transfer of the trial to a Children's Court
at Panchkula, as prayed in the alternative?
18. At the outset, it may be noticed that the Cr.P.C. has been replaced
by the Bharatiya Nagarik Suraksha Sanhita, 2023 with effect from 01.07.2024.
Since the present petition was pending immediately before that date, Section
531(2)(a) of BNSS expressly saves it for disposal in accordance with the
provisions of the Cr.P.C.
19. Coming to the first question, the entire case of the CBI rests upon
the notifications annexed as Annexure P-4 Colly. The first of them is the
notification dated 08.02.2012 issued by the Government of Haryana,
Administration of Justice Department, which reads as under:
"In exercise of the powers conferred by sub-section (1) of
section 3 of the Prevention of Corruption Act, 1988 (49 of
1988) and in supersession of Haryana Government,
Administration of Justice Department Notification No. S.O.
39/C.A. 49/1988/S.3/2011, dated the 6th April, 2011, the
Governor of Haryana hereby appoints the Presiding Officer,
Central Bureau of Investigation Court, Panchkula as a
Special Judge for the trial of all the cases investigated by the
Delhi Special Police Establishment (Central Bureau of
Investigation), Government of India, involving offences
specified in clauses (a) and (b) of the said section
committed throughout the State of Haryana."
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20. The notification has been issued in exercise of the powers under
Section 3(1) of the Prevention of Corruption Act, 1988 (for short ‘PC Act’) . The
said provision reads as under:
"3. Power to appoint special Judges.- (1) The Central
Government or the State Government may, by notification in
the Official Gazette, appoint as many special Judges as may
be necessary for such area or areas or for such case or group
of cases as may be specified in the notification to try the
following offences, namely:-
(a) any offence punishable under this Act ; and
(b) any conspiracy to commit or any attempt to commit
or any abetment of any of the offences specified in clause
(a) ."
21. A conjoint reading of the notification and Section 3(1) of the PC
Act makes the position clear. The Presiding Officer of the CBI Court at
Panchkula has been appointed as a Special Judge only for the CBI cases
involving the offences specified in clauses (a) and (b) of Section 3(1). These are
the offences punishable under the PC Act and the conspiracy, attempt or
abetment of such offences. The notification does not appoint the Special Judge
for the trial of every case investigated by the CBI. An offence punishable under
Section 302 IPC, which is the only offence for which respondent No. 2 has been
charge sheeted, does not fall within its ambit. Para 10 of the petition also refers
to certain notifications issued by the Registrar General of this Court. None of
them has, however, been placed on record. No other provision of law has been
shown which vests exclusive jurisdiction in the Special Judge, CBI to try an
offence of murder merely because the case has been investigated by the CBI.
22. Section 4(3) of the PC Act also does not help the CBI. It provides
that when trying any case, a Special Judge may also try any offence, other than
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an offence specified in Section 3, with which the accused may, under the
Cr.P.C., be charged at the same trial. The provision, thus, presupposes that the
accused is being tried by the Special Judge for an offence under the PC Act.
Respondent No. 2 is not charged with any such offence, and he faces trial only
for the offence under Section 302 IPC. Section 4(3) cannot, therefore, be
invoked to bring his trial before the Special Judge.
23. The notifications Annexures P-1 and P-2 also do not advance the
case of the CBI. The notification dated 17.09.2017 (Annexure P-1) issued by the
Government of Haryana, Home Department reads as under:
"In exercise of the Powers conferred under section 6 of the
Delhi Special Police Establishment Act, 1946 (Act No. 25 of
1946), the Governor of State of Haryana, hereby accords
consent to the extension of powers and jurisdiction of the
members of the Delhi Special Police Establishment to the
whole of the State of Haryana for investigation of Case FIR
No. 250 dated 08.09.2017 u/s 302 IPC & 25/54/59 Arms Act,
12 Protection of Children from Sexual Offences (POCSO)
Act & 75 Juvenile Justice (J.J.) Act r/w Section 34 IPC
Police Station Bhondsi, Gurugram and attempts, abetments
and conspiracies in relation to or in connection with the
offences mentioned above and any other offence or offences
committed in the course of the same transaction or arising
out of the same facts."
24. Pursuant to the above consent, the Government of India issued the
notification dated 22.09.2017 (Annexure P-2) under Section 5(1) read with
Section 6 of the DSPE Act. By that notification, the powers and jurisdiction of
the members of the Delhi Special Police Establishment were extended to the
State of Haryana for investigation of the said FIR. Both these notifications deal
only with the power to investigate the case. Neither of them says anything about
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the forum of trial. The ordinary rule regarding the place of trial is contained in
Section 177 Cr.P.C., which reads as under:
"177. Ordinary place of inquiry and trial.- Every offence
shall ordinarily be inquired into and tried by a Court within
whose local jurisdiction it was committed ."
25. The offence in the present case was committed within the Sessions
Division of Gurugram. The transfer of investigation to the CBI does not shift the
trial to some other Sessions Division. In Nahar Singh Yadav and another v.
Union of India and others, (2011) 1 SCC 307 , the Hon'ble Supreme Court held
that once a notification is issued by a State Government under Section 6 of the
DSPE Act, the CBI steps into the shoes of the State police and assumes the role
of the investigating as well as the prosecuting agency for that particular case. It
is, however, nowhere held that the forum of trial also changes on that account.
Rather, in that very case, the prayer of the CBI for transfer of the trial from the
Court of Special Judge, CBI, Ghaziabad was declined, and the trial Court was
directed to proceed with the case expeditiously.
26. Further, respondent No. 2 is a child in conflict with law and the
forum of his trial is governed by the JJ Act. The relevant provisions of the JJ Act
are reproduced as under:
"1(4) Notwithstanding anything contained in any other
law for the time being in force , the provisions of this Act
shall apply to all matters concerning children in need of care
and protection and children in conflict with law, including:
(i) apprehension, detention, prosecution , penalty or
imprisonment, rehabilitation and social re-integration of
children in conflict with law;
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(ii) procedures and decisions or orders relating to
rehabilitation, adoption, re-integration, and restoration of
children in need of care and protection."
*
"2(20) "Children's Court" means 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;"
*
"18(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 ."
*
"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
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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."
*
"23. No joint proceedings of child in conflict with law and
person not a child.- (1) Notwithstanding anything contained
in section 223 of the Code of Criminal Procedure, 1973 (2 of
1974) or in any other law for the time being in force, there
shall be no joint proceedings of a child alleged to be in
conflict with law, with a person who is not a child .
(2) If during the inquiry by the Board or by the Children's
Court, the person alleged to be in conflict with law is found
that he is not a child, such person shall not be tried along with
a child."
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27. Section 1(4) of the JJ Act opens with a non obstante clause. It
applies the Act to all matters concerning children in conflict with law, and the
word 'prosecution' has been expressly included in it. Under Section 18(3), the
trial of a child directed to be tried as an adult is to be transferred to the Children's
Court having jurisdiction to try such offences. The legislature has not left the
choice of forum to the investigating agency. Section 19 lays down the manner
in which the Children's Court is to conduct such a trial. It has to keep in view
the special needs of the child, the tenets of fair trial and a child friendly
atmosphere. It has also to ensure an individual care plan, placement of the child
in a place of safety till the age of twenty-one years and an annual follow-up
report. These safeguards are specific to the Children's Court and are not attached
to the Court of a Special Judge, CBI. Section 23 further bars joint proceedings
of a child with a person who is not a child.
28. The second notification forming part of Annexure P-4 Colly is the
notification dated 29.05.2013 issued by the Government of Haryana, Women
and Child Development Department, which designates the Children's Courts in
the State of Haryana, reads as under:
"In exercise of the powers conferred by Section 25 of the
Commission for Protection of Child Rights Act, 2005
(Central Act 4 of 2006) and in supersession of Haryana
Government, Women and Child Development Department.
Notification No. 92 SW (4)-2011, dated the 18th March,
2011 and Notification No. 205 SW (3)-2013, dated xxxth
March, 2013 and with the concurrence of the Chief Justice
of Punjab and Haryana High Court, the Governor of Haryana
hereby specifies all the Session Judges and Additional
Sessions Judges, except the Additional Session Judge
(Adhoc) Fast Track Courts, at each district headquarter,
to be the Children's Court , for the purpose of providing
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speedy trial of offences against children or violation of child
rights under the said Act.
Further, as per provision to Sub-section (1) of Section 28 of
the Protection of Children from Sexual Offences Act, 2012
(Central Act 32 of 2012), the Children's Court under the said
section of the Commission for Protection of Child Rights
Act, 2005 (Central Act 4 of 2006), shall also be a Special
Court under the Protection of Children from Sexual
Offences Act, 2012 to try offences, under the Act."
29. Thus, the CBI has itself placed on record a notification which
designates the Sessions Judges and Additional Sessions Judges at each district
headquarter as Children's Courts. These Courts are also Special Courts under the
POCSO Act. Therefore, they answer both the limbs of the definition of
'Children's Court' contained in Section 2(20) of the JJ Act. The Court of learned
Additional Sessions Judge-cum-Children's Court, Gurugram is the Children's
Court having jurisdiction over the present case. In view of the notification dated
29.05.2013, the Presiding Officer of the Court at Panchkula, being a Sessions
Judge or an Additional Sessions Judge at a district headquarter, may well also
be a Children's Court. However, the CBI seeks transfer of the case to that Court
in its capacity as a Special Judge under the Prevention of Corruption Act, 1988,
which has no relation to an offence under Section 302 IPC. Even if the transfer
is treated as one to that Court in its capacity as a Children's Court, the first prayer
merges with the alternative prayer for transfer to a Children's Court at
Panchkula. Such a transfer can be ordered only if a case is made out under
Section 407 Cr.P.C., which is considered hereinafter.
30. The scheme of Sections 15, 18 and 19 of the JJ Act was explained
by the Hon'ble Supreme Court in Barun Chandra Thakur's case (supra) , which
arose out of the preliminary assessment of respondent No. 2 himself. It was held
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that the order of preliminary assessment decides whether a child aged between
sixteen and eighteen years, alleged to have committed a heinous offence, is to
be tried by the Board or as an adult by the Children's Court. The Hon'ble
Supreme Court noticed the serious consequences which follow when a child is
tried as an adult by the Children's Court. The relevant observations are
reproduced as under:
"45. The order of preliminary assessment decides whether
the child in conflict with law, falling in the age bracket of
16-18 years and having committed heinous offence, is to be
tried as an adult by the Children's Court or by the Board
itself , treating him to be a child. There are two major
consequences provided in the Act, 2015, if the child is tried
as an adult by the Children's Court. First, that the sentence or
the punishment can go up to life imprisonment if the child is
tried as an adult by the Children's Court, whereas if the child
is tried by the Board as a child, the maximum sentence that
can be awarded is 3 years. The second major consequence is
that where the child is tried as a child by the Board, then
under section 24(1), he would not suffer any disqualification
attached to the conviction of an offence, whereas the said
removal of disqualification would not be available to a child
who is tried as an adult by the Children's Court, as per the
proviso to section 24(1)...
46. These consequences are serious in nature and have a
lasting effect for the entire life of the child. It is well settled
that any order that has serious civil consequences, reasonable
opportunity must be afforded..."
31. The Children's Court is, thus, the forum specifically chosen by the
legislature for the trial of such a child, along with the safeguards contained in
Section 19 of the JJ Act. Reference can also be made to CCL 'A's case (supra) ,
wherein the Delhi High Court observed that a child sent up for trial as an adult
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before a Children's Court does not become an adult. He continues to be a juvenile
in conflict with law, who is only to be treated differently on account of the
heinous nature of the offence alleged against him.
32. The mandatory nature of the procedure prescribed by the JJ Act for
the trial of a child in conflict with law has been emphasised by the Hon'ble
Supreme Court in Thirumoorthy v. State represented by the Inspector of Police,
2024 INSC 247 . In the said case, the charge sheet against a child in conflict with
law was filed directly before a Sessions Court, without any preliminary
assessment by the Board. The Hon'ble Supreme Court held that the procedure
under Sections 15 and 19 of the JJ Act is mandatory. As the trial had been
conducted de hors that procedure, the entire proceedings, right from the
investigation till the conviction, were held to be vitiated. The relevant
observations are reproduced as under:
"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 . 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...
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 .
xxx xxx xxx
40. Thus, on the face of the record, the proceedings
undertaken by the Sessions Court in conducting trial of the
CICL, convicting and sentencing him as above are in gross
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violation of the mandate of the Act and thus, the entire
proceedings stand vitiated .
xxx xxx xxx
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."
33. It is, thus, evident that the obligations cast upon the Children's
Court under Section 19 of the JJ Act are mandatory and are to be discharged by
the Children's Court alone. If the trial of respondent No. 2 were to be held by the
Court at Panchkula in its capacity as a Special Judge, CBI, as prayed by the CBI,
the mandatory procedure prescribed under Section 19 of the JJ Act would not be
followed. The very foundation of the proceedings would then be put in jeopardy.
The trial would then be open to challenge on the principle laid down in
Thirumoorthy's case (supra) . Such a course would defeat the very object of an
early and effective trial, for which the CBI seeks the transfer.
34. Reference can also be made to the recent judgment of the Hon'ble
Supreme Court in Sagar v. State of Haryana, 2026 INSC 692 , decided on
13.07.2026. In the said case, the Children's Court had proceeded with the trial
of a child in conflict with law as an adult, without passing an order under Section
19(1) of the JJ Act. Following Thirumoorthy's case (supra) , the Hon'ble
Supreme Court held that the requirement of Section 19(1) is mandatory and
substantive in nature, and its non-compliance vitiates the entire trial. The
conviction was, therefore, set aside and the appellant was acquitted. The Hon'ble
Supreme Court also directed that the first duty of the Children's Court, after
taking cognizance of a matter transferred to it under Section 18(3), is to pass a
reasoned order under Section 19(1) upon due assessment of the child in conflict
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with law. This judgment further underlines that the trial of such a child carries
statutory obligations which only a Children's Court can discharge.
35. An identical question was considered by this Court in Amritpal
Singh's case (supra) , on which heavy reliance has been placed by learned
counsel for respondent No. 2. In that case, the National Investigation Agency
had sought transfer of the trial of a juvenile, who had been directed to be tried
as an adult, from the Children's Court, Tarn Taran to the Special NIA Court,
Mohali. Section 13(1) of the National Investigation Agency Act, 2008 expressly
provides that every scheduled offence investigated by the Agency shall be tried
only by the Special Court. This Court held that the non obstante clause in Section
13(1) of that Act gives it an overriding effect only upon the Cr.P.C. On the other
hand, Section 1(4) of the JJ Act, which is a later enactment, overrides any other
law for the time being in force. It was held that the JJ Act would, therefore,
prevail and the jurisdiction would vest in the Children's Court. It was further
held that the plea of speedy trial, similarity of procedure or the rank of the
Presiding Officer cannot confer jurisdiction upon a Court. The relevant
observations are reproduced as under:
"35. Another argument raised by the learned counsel for the
petitioner was that the Special Court constituted under the
NIA Act provides speedy trial and rather under Section 19 it
has been so provided that the trial by Special Court will have
precedence and the Special Court shall hold the trial on day-
to-day basis. However, the said argument although seems to
be attractive but does not cut any ice. The argument of
speedy trial, if any, cannot be given preference when
issue of jurisdiction of Court is involved. The jurisdiction
of a Court can neither be taken away nor vested in a
particular Court on the basis of aforesaid argument.
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36. ...The argument raised by the learned counsel for the
petitioner that in both the legislations the Court is held by
Presiding Officer of the rank of Sessions Judge/Additional
Sessions Judge and therefore, no prejudice would be
caused to the respondent is also not sustainable in view of
the fact that such a reasoning cannot become a ground
for conferring a jurisdiction upon a particular Court . In
the present case, the jurisdiction is vested in the Children's
Court under Section 18(3) of the JJ Act, 2015 and by virtue
of Section 1(4) of the Act, the provisions of the Act will have
an overriding effect upon any other law for the time being in
force...
xxx xxx xxx
40. After giving my thoughtful consideration to the aforesaid
facts and circumstances as well as the legal position
especially considering the effect of Section 1(4) of the JJ Act,
2015, it is held that when an FIR is registered under a
Scheduled Act prescribed under the NIA Act and a
juvenile has been directed to be tried as an adult by the
Children's Court, then the jurisdiction would vest in the
Children's Court and not in the Special Judge under the
NIA Act ."
36. In reaching the above conclusion, this Court relied upon the
judgments of the Hon'ble Supreme Court in Partap Singh v. State of Jharkhand
and another, (2005) 3 SCC 551 and Independent Thought v. Union of India
and another, (2017) 10 SCC 800 . In Partap Singh's case (supra) , a Constitution
Bench held that the juvenile justice law is a beneficial and remedial legislation.
It must be construed so as to advance the cause of those for whose benefit it has
been made. In Independent Thought's case (supra) , it was held that the statutes
concerning the rights of children are special laws on a special subject of
legislation. Such subject-specific legislations must prevail and take precedence
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over the provisions of a general law. This Court also considered Yakub Abdul
Razak Memon's case (supra) , wherein the Terrorist and Disruptive Activities
(Prevention) Act, 1987 was held to prevail over the Juvenile Justice Act, 2000.
That judgment was distinguished, as the TADA Act had been repealed long
before Section 1(4) was inserted in the Juvenile Justice Act, 2000 with effect
from 22.08.2006. The overriding clause could not, therefore, operate upon a law
which was no longer in force. In Amritpal Singh's case (supra) , as in the present
case, both the enactments were in force and the later one, i.e. the JJ Act,
contained a clear non obstante clause.
37. Reliance can also be placed upon National Investigation Agency
v. Abid Mushtaq Mir, Crl. A(D) No. 1 of 2024, decided on 29.07.2024 , wherein
the High Court of Jammu and Kashmir and Ladakh took the same view. In that
case, a juvenile directed to be tried as an adult for offences under the Unlawful
Activities (Prevention) Act, 1967 was held triable by the Special Court under
the Protection of Children from Sexual Offences Act, 2012, which is a Children's
Court, and not by the Special NIA Court. It was observed as under:
"9. ...The JJ Act, 2015 will apply for offence committed by
the child under any enactment... The provisions of the JJ
Act will override any other provision of law for the time
being in force which brings child in conflict with law and
Section 1 (4) of the JJ Act speaks so in unmistakeable terms.
The sanctity of non-obstante clause occurring in Section 1
(4) of the JJ Act has to be maintained and followed... The
severity of punishment under UA(P) Act cannot be the
reason to oust the jurisdiction of particular court where
the trial is required to be held in view of the Special
provisions of law. "
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38. As noticed above, learned counsel for the CBI has heavily relied
upon Yakub Abdul Razak Memon's case (supra) . In that case, the Hon'ble
Supreme Court noticed the contention of one of the appellants in the Bombay
bomb blasts case. He was 17 years and 3 months old on the date of the offence
and pleaded that his case ought to have been dealt with under the Juvenile Justice
Act, 2000, and not under TADA. The answer to this contention was given by the
Hon'ble Supreme Court in the following words:
"...The question does arise as to whether the statutory
provisions of JJ Act would have an over-riding effect over
the provisions of TADA which left long back and was
admittedly not in force on 22.8.2006 . Thus, the question
does arise as what is the meaning of the law for the time
being in force. This Court has interpreted this phrase to
include the law in existence on the date of commencement
of the Act having over-riding effect and the law which may
be enacted in future during the life of the Act having over-
riding effect...
Thus, we do not think that the JJ Act would have an over-
riding effect on TADA which was not in existence on the
date of commencement of the provisions of Section 1(4)
of JJ Act .
TADA, being a special act , meant to curb the menace of
terrorist and disruptive activities will have effect
notwithstanding the fact that JJ Act is general and
beneficial legislation . On perusal of aims and objects of
TADA, it is clear that the act is brought into the statute books
to deal with a special category of persons, viz., Terrorists."
39. A careful reading of the above paras shows that the decision turned
on features which are absent in the present case. Firstly, TADA had lapsed long
before Section 1(4) was inserted in the Juvenile Justice Act, 2000 with effect
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from 22.08.2006. The overriding clause could not, therefore, operate upon a law
which was no longer in force. In the present case, the offence was committed on
08.09.2017, when the JJ Act of 2015 was in force. Section 1(4) of that Act
expressly extends to the prosecution of children in conflict with law. Secondly,
TADA was a special statute enacted to deal with terrorists. It vested exclusive
jurisdiction in the Designated Courts and contained its own overriding clause in
Section 25. The offence alleged against respondent No. 2 is under Section 302
IPC, which is a general law. No statute vests the trial of such an offence in the
Special Judge, CBI, and the notification dated 08.02.2012 is confined to the
offences under the PC Act.
40. Thirdly, the Hon'ble Supreme Court observed that the Act of 2000
had itself carved out certain exceptions and could not, therefore, prevail over
TADA in all circumstances. Under the JJ Act of 2015, the legislature has itself
provided for the trial of a child aged between sixteen and eighteen years as an
adult in case of a heinous offence. At the same time, it has specifically chosen
the Children's Court as the forum for such a trial. The exception, therefore,
operates within the JJ Act and not outside it. In fact, the principle applied in
Yakub Abdul Razak Memon's case (supra) , that a special law will prevail over
a general law, supports respondent No. 2. The JJ Act is a special law on the
subject of children, as held in Independent Thought's case (supra) , while the
IPC and the Cr.P.C. are general laws. This is also the reason why Yakub Abdul
Razak Memon's case (supra) was distinguished by this Court in Amritpal
Singh's case (supra) .
41. In the same judgment, the Hon'ble Supreme Court also explained
the expression 'ends of justice', on which reliance has been placed by the CBI. It
was observed as under:
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"While dealing with such an issue, the court must not lose
sight of the fact that meaning of "ends of justice" essentially
refers to justice to all the parties. This phrase refers to the
best interest of the public within the four corners of the
statute . In fact, it means preservation of proper balance
between the Constitutional/Statutory rights of an individual
and rights of the people at large to have the law enforced.
The "ends of justice" does not mean vague and
indeterminate notions of justice, but justice according to
the law of the land. "
42. These observations do not advance the case of the CBI. The ends
of justice are to be served within the four corners of the statute and mean justice
according to the law of the land. The law of the land, contained in Section 18(3)
read with Section 1(4) of the JJ Act, places the trial of respondent No. 2 in the
Children's Court. Justice to all the parties also points the same way. The family
of the deceased, the witnesses and respondent No. 2 are all at Gurugram, and the
trial there is at an advanced stage. The interest of the society lies in an early
conclusion of the trial, and not in shifting it to another forum for the convenience
of the prosecuting agency. Thus, Yakub Abdul Razak Memon's case (supra) is
of no help to the CBI.
43. The present case stands on an even stronger footing. In Amritpal
Singh's case (supra) , the NIA Act expressly provided for the trial of scheduled
offences only by the Special Court, and the JJ Act was still held to prevail. In
the present case, there is no statutory provision vesting the trial of an offence
under Section 302 IPC investigated by the CBI exclusively in the Special Judge,
CBI. The notification dated 08.02.2012 is confined to the offences under the PC
Act. The arrangement relied upon by the CBI is, at best, an administrative one.
It cannot override the mandate of Section 18(3) read with Section 1(4) of the JJ
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Act. The plea of no prejudice also cannot vest jurisdiction in a Court, as held in
Amritpal Singh's case (supra) . Similarly, the no objection given by the State
cannot confer upon the Special Judge, CBI a jurisdiction which the law does not
give to it. It is settled since Kiran Singh and others v. Chaman Paswan and
others, [1955] 1 S.C.R. 117 that a defect of jurisdiction cannot be cured even by
consent of the parties, wherein the Hon'ble Supreme Court observed as under:
"It is a fundamental principle well-established that a decree
passed by a Court without jurisdiction is a nullity, and that
its invalidity could be set up whenever and wherever it is
sought to be enforced or relied upon, even at the stage of
execution and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial, or
whether it is in respect of the subject-matter of the action,
strikes at the very authority of the Court to pass any
decree, and such a defect cannot be cured even by consent
of parties. "
44. Though the above observations were made in a civil case, the
principle is of general application. The first prayer made in the petition is,
therefore, not sustainable.
45. Coming to the alternative prayer, respondent No. 2 has objected to
it being raised through an additional affidavit. The power of the High Court
under Section 407 Cr.P.C. is, however, wide. Under Section 407(2), it may be
exercised on the report of the trial Court, on the application of a party interested
or on the High Court's own initiative. The alternative prayer is, therefore, being
considered on merits, rather than being rejected on a technical ground. Section
407(1) Cr.P.C. reads as under:
"407. Power of High Court to transfer cases and appeals.- (1)
Whenever it is made to appear to the High Court-
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(a) that a fair and impartial inquiry or trial cannot be had
in any Criminal Court subordinate thereto , or
(b) that some question of law of unusual difficulty is likely
to arise , or
(c) that an order under this section is required by any
provision of this Code, or will tend to the general
convenience of the parties or witnesses, or is expedient
for the ends of justice ,
it may order-
(i) that any offence be inquired into or tried by any Court not
qualified under sections 177 to 185 (both inclusive), but in
other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or
appeals, be transferred from a Criminal Court subordinate to
its authority to any other such Criminal Court of equal or
superior jurisdiction;
(iii) that any particular case be committed for trial to a Court
of Session; or
(iv) that any particular case or appeal be transferred to and
tried before itself."
46. The scope of the power of transfer in relation to a case which, by
statute, is triable only by a particular class of Courts was explained by a three
Judge Bench of the Hon'ble Supreme Court in Gurcharan Dass Chadha v. State
of Rajasthan, [1966] 2 S.C.R. 678 . The case was triable only by a Special Judge
under the Criminal Law Amendment Act, 1952. It was held that the condition
requiring trial by a Special Judge is a sine qua non, which can be met only by
transferring the case to another Special Judge. The territorial condition, on the
other hand, merely distributes work among Special Judges and must yield to the
power of transfer. The relevant observations are reproduced as under:
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"There is no comparison between the first sub-section and
the second sub-section of s. 7. The condition in the second
sub-section of s. 7 is not of the same character as the
condition in the first sub-section. The first sub-section
creates a condition which is a sine qua non for the trial of
certain offences. That condition is that the trial must be
before a special Judge. The second sub-section distributes
the work between special Judges and lays emphasis on the
fact that trial must be before a special Judge appointed for
the area in which the offence is committed. This second
condition is on a par with the distribution of work
territorially between different Sessions Judges and
Magistrates. An order of transfer, by the very nature of things
must, some times, result in taking the case out of the
territory..."
47. Section 18(3) of the JJ Act does not merely prescribe a territorial
forum. It specifically directs transfer of the trial to the Children's Court having
jurisdiction to try such offences. Applying the same reasoning, the requirement
of Section 18(3) of the JJ Act that the trial of a child directed to be tried as an
adult must be held by a Children's Court is a sine qua non. The power of transfer
under Section 407 Cr.P.C. can be exercised only within that limit. The trial can,
at the most, be transferred from one Children's Court to another Children's Court,
if a case for the same is made out. It cannot be transferred to a Court which does
not answer the description of a Children's Court. This is a further reason why
the first prayer of the CBI cannot be granted, even by invoking Section 407
Cr.P.C.
48. A Children's Court at Panchkula would be a Court of equal
jurisdiction and would also satisfy the above requirement. This Court can,
therefore, transfer the trial to it if a case is made out under Section 407 Cr.P.C.
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The principles governing transfer of criminal cases were laid down by the
Hon'ble Supreme Court in Abdul Nazar Madani v. State of Tamil Nadu and
another, (2000) 6 SCC 204 , wherein it was held that the apprehension of not
getting a fair trial must be reasonable and not imaginary. Convenience of the
parties and the witnesses is also a relevant consideration, but it means the
convenience of all concerned and not of the applicant alone. The relevant
observations are reproduced as under:
"7. The purpose of the criminal trial is to dispense fair and
impartial justice uninfluenced by extraneous considerations.
When it is shown that public confidence in the fairness of a
trial would be seriously undermined, any party can seek the
transfer of a case within the State under Section 407 and
anywhere in the country under Section 406 Cr.P.C. The
apprehension of not getting a fair and impartial inquiry
or trial is required to be reasonable and not imaginary,
based upon conjectures and surmises. If it appears that the
dispensation of criminal justice is not possible impartially
and objectively and without any bias, before any court or
even at any place, the appropriate court may transfer the case
to another court where it feels that holding of fair and proper
trial is conducive. No universal or hard and fast rules can be
prescribed for deciding a transfer petition which has always
to be decided on the basis of the facts of each case.
Convenience of the parties including the witnesses to be
produced at the trial is also a relevant consideration for
deciding the transfer petition. The convenience of the
parties does not necessarily mean the convenience of the
petitioners alone who approached the court on
misconceived notions of apprehension. Convenience for the
purposes of transfer means the convenience of the
prosecution, other accused, the witnesses and the larger
interest of the society. "
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49. The test of reasonable apprehension had, in fact, been laid down
much earlier in Gurcharan Dass Chadha's case (supra) , wherein it was
observed as under:
"The law with regard to transfer of cases is well-settled. A
case is transferred if there is a reasonable apprehension
on the part of a party to a case that justice will not be
done. A petitioner is not required to demonstrate that justice
will inevitably fail. He is entitled to a transfer if he shows
circumstances from which it can be inferred that he
entertains an apprehension and that it is reasonable in the
circumstances alleged. It is one of the principles of the
administration of justice that justice should not only be done
but it should be seen to be done. However, a mere allegation
that there is apprehension that justice will not be done in
a given case does not suffice. The Court has further to see
whether the apprehension is reasonable or not ..."
50. These principles were reiterated by the Hon'ble Supreme Court in
Nahar Singh Yadav's case (supra) . It was a case in which the CBI itself had
sought transfer of a trial pending before the Court of Special Judge, CBI,
Ghaziabad. The Hon'ble Supreme Court held that an order of transfer is not to
be passed as a matter of routine. It also laid down the broad factors which are to
be kept in mind while considering such a prayer. The relevant observations are
reproduced as under:
"24. Thus, although no rigid and inflexible rule or test could
be laid down to decide whether or not power under Section
406 of the Cr.P.C. should be exercised, it is manifest from a
bare reading of sub-sections (2) and (3) of the said Section
and on an analysis of the decisions of this Court that an
order of transfer of trial is not to be passed as a matter of
routine or merely because an interested party has
expressed some apprehension about the proper conduct
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of a trial . This power has to be exercised cautiously and in
exceptional situations, where it becomes necessary to do so
to provide credibility to the trial. Some of the broad factors
which could be kept in mind while considering an
application for transfer of the trial are:-
(i) when it appears that the State machinery or prosecution is
acting hand in glove with the accused, and there is likelihood
of miscarriage of justice due to the lackadaisical attitude of
the prosecution;
(ii) when there is material to show that the accused may
influence the prosecution witnesses or cause physical harm
to the complainant;
(iii) comparative inconvenience and hardships likely to
be caused to the accused, the complainant/the
prosecution and the witnesses , besides the burden to be
borne by the State Exchequer in making payment of
travelling and other expenses of the official and non-official
witnesses;
(iv) a communally surcharged atmosphere, indicating some
proof of inability of holding fair and impartial trial because
of the accusations made and the nature of the crime
committed by the accused; and
(v) existence of some material from which it can be inferred
that the some persons are so hostile that they are interfering
or are likely to interfere either directly or indirectly with the
course of justice."
51. In the same judgment, the Hon'ble Supreme Court quoted with
approval the following observations made in Maneka Sanjay Gandhi and
another v. Rani Jethmalani, (1979) 4 SCC 167 :
"Assurance of a fair trial is the first imperative of the
dispensation of justice and the central criterion for the
court to consider when a motion for transfer is made is
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not the hypersensitivity or relative convenience of a party
or easy availability of legal services or like mini-
grievances . Something more substantial, more compelling,
more imperilling, from the point of view of public justice and
its attendant environment, is necessitous if the Court is to
exercise its power of transfer..."
52. Reference can also be made to Captain Amarinder Singh v.
Prakash Singh Badal and others, (2009) 6 SCC 260 , wherein a three Judge
Bench of the Hon'ble Supreme Court held that a mere allegation of apprehension
does not suffice for transfer of a criminal case. The apprehension must not only
be entertained but must also appear to the Court to be reasonable. On the other
hand, in Mrudul M. Damle and another v. CBI, New Delhi, [2012] 5 S.C.R.
919 , a CBI case was transferred to the place where 88 out of 92 witnesses were
located. It was held that expeditious disposal is a facet of fair trial and speedy
trial is a fundamental right. It was further observed that a trial in which the
witnesses have to travel from distant places is bound to linger on for years. The
convenience of the witnesses was thus treated as a reason for holding the trial
where the witnesses were, and not for taking it away from them.
53. Tested on the above principles, no case for transfer is made out. No
material has been placed before this Court to show that a fair and impartial trial
cannot be had at Gurugram. There is no allegation of bias against the trial Court,
nor is it alleged that the State machinery is acting in collusion with the accused.
No question of law of unusual difficulty is likely to arise in the trial. The
occurrence took place in a school at Gurugram and the FIR (Annexure P-3) was
registered there. The family of the deceased, respondent No. 2 and his family,
and the school are all located there. The trial is going on before the Children
Court at Gurugram. The CBI did not seek stay of the proceedings before the trial
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Court, and the trial has thus progressed for several years. The occurrence is of
the year 2017. Any transfer at this advanced stage would only delay the trial
further. It would not be in the interest of the prosecution, the family of the
deceased or respondent No. 2. The support extended by the complainant to the
petition does not alter this position. The joint appreciation of evidence sought
by him is barred by Section 23 of the JJ Act, and an early conclusion of the trial
at Gurugram would serve the cause of the family of the deceased far better than
a transfer at this stage. The comparative inconvenience of all concerned, which
is one of the factors noticed in Nahar Singh Yadav's case (supra) , is clearly
against the transfer.
54. The plea that the evidence is intertwined with the case of the adult
accused pending at Panchkula also does not help the CBI. Section 23 of the JJ
Act forbids joint proceedings of a child with a person who is not a child. The
two trials have to be held separately in any case, whether at Gurugram or at
Panchkula. If any witness is common to both the cases, he has to be examined
in each case separately. Documents can be produced through certified copies.
The difficulty regarding the movement of the record and the travel of the
prosecution team is administrative in nature. It is, at the most, a matter of the
relative convenience of the prosecution, which is not a ground for transfer, as
held in Maneka Sanjay Gandhi's case (supra) . It does not fall within any of the
grounds contained in Section 407(1) Cr.P.C. The CBI has, in fact, been
conducting the trial at Gurugram since the year 2018. Wherever permissible, the
evidence of official and outstation witnesses can also be recorded through video
conferencing.
55. CBI has also relied upon Central Bureau of Investigation v. State
of Haryana and others, CRM-M-5650-2022, decided on 24.01.2025 , wherein
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CRM-M-24867-2018 (O&M) 33
this Court dealt with the refusal of sanction for prosecution of certain police
officials, who were members of the Special Investigation Team constituted by
the Gurugram Police. It was observed that the evidence regarding the
involvement of respondent No. 2 and the false implication of Ashok Kumar is
intertwined and cannot be segregated. On that basis, it was further observed that
the said officials can be tried, by virtue of Section 223(d) Cr.P.C., in the same
trial as that of the offence under Section 302 IPC.
56. The above judgment also does not advance the case of the CBI.
That judgment was rendered in a different context. The question before this
Court was regarding the sanction for prosecution and the power of the CBI to
investigate the role of the police officials. The question presently arising,
namely, the forum for trial of a child in conflict with law who has been directed
to be tried as an adult, was not under consideration. Section 23 opens with the
words 'notwithstanding anything contained in section 223 of the Code of
Criminal Procedure, 1973', and expressly bars joint proceedings of a child
alleged to be in conflict with law with a person who is not a child. Even
otherwise, the trial of the offence under Section 302 IPC is pending before the
Children's Court, Gurugram. The observations made in that judgment, at the
most, contemplate the officials being tried along with that case, and not the trial
of respondent No. 2 being shifted to Panchkula. In State of Kerala v. Ayyappan
and others, (2006) 13 SCC 320 , relied upon in that judgment, the connected
accused were also directed to be tried by the Court trying the main offence. Thus,
the pendency of proceedings against the adult accused at Panchkula furnishes
no ground for transfer of the trial of respondent No. 2.
57. The observations made in the order dated 06.10.2021 (Annexure P-
9) regarding the conduct of respondent No. 2 and his family members were made
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while deciding his prayer for bail. They were not findings on the merits of the
case. Respondent No. 2 has also pointed out the order dated 20.10.2022
(Annexure P-11) passed by the Hon'ble Supreme Court granting him interim
bail. In any case, those observations do not show that a fair and impartial trial
cannot be held at Gurugram. They have no bearing on the question as to which
Court should try the case. If any apprehension regarding the witnesses arises in
future, the trial Court is competent to take appropriate measures in accordance
with law. The alternative prayer is, therefore, also without merit.
58. In view of the discussion as made above, it can be summarised that
the Court of Special Judge, CBI, Panchkula has not been vested with any
exclusive jurisdiction to try an offence under Section 302 IPC merely because it
has been investigated by the CBI. The notification dated 08.02.2012 (part of
Annexure P-4 Colly) is confined to the offences under the PC Act. The
notifications Annexures P-1 and P-2 deal only with the investigation of the case.
The trial of respondent No. 2, who has been directed to be tried as an adult, is to
be held by the Children's Court having jurisdiction under Section 18(3) read with
Section 1(4) of the JJ Act. This requirement is a sine qua non, and the power of
transfer under Section 407 Cr.P.C. cannot be used to take the trial to a Court of
a different character. No ground is made out under Section 407 Cr.P.C. for
transfer of the trial to a Children's Court at Panchkula either.
59. In view thereof, the present petition is dismissed. The learned
Additional Sessions Judge-cum-Children's Court, Gurugram shall proceed with
the trial of respondent No. 2 and make every endeavour to conclude it as
expeditiously as possible, preferably within a period of six months from the date
of receipt of a certified copy of this order, subject to cooperation by the parties.
The CBI shall ensure the presence of its witnesses on the dates fixed by the trial
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CRM-M-24867-2018 (O&M) 35
Court. The trial Court may record the evidence of official and outstation
witnesses through video conferencing in accordance with the applicable rules.
60. It is made clear that nothing observed herein shall be construed as
an expression of opinion on the merits of the case.
61. Before parting, this Court places on record its deep appreciation for
the diligent assistance rendered by my Secretary Mr. Waseem Ansari and Law
Researcher Ms. Shruti Dang in going through the voluminous record and
compiling the relevant statutory provisions and judgments on the point, which
greatly facilitated the consideration of the issues involved.
30.10.2026 (MANISHA BATRA)
Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari Waseem R. Ansari
JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
MOHAMMAD WASEEM ANSARI
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