Full Judgment Text
2023INSC875
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
relevant factual aspects will be necessary. A First
Digitally signed by
Anita Malhotra
Date: 2023.10.06
10:48:51 IST
Reason:
Information Report was registered against the accused
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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
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was filed on 12 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
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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.
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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 -
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(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
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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
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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
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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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