Orissa High Court acquits man convicted in POCSO case after Children’s Court failed to independently decide whether he should be tried as an adult

The appellant was alleged to have repeatedly sexually assaulted the victim, who was about fourteen years old, between February 2015 and February 2016.

The prosecution treated the appellant, then about seventeen, as a child in conflict with law; the Juvenile Justice Board ordered on 8 November 2016 that he be tried as an adult and transferred the case to the Children’s Court.

The Children’s Court proceeded with an adult trial, framed charges and, on 5 March 2020, convicted him under Section 6 of the POCSO Act and Sections 450, 376(2)(i) and 376(2)(n) IPC.

In appeal, the appellant challenged the legality of the adult trial, particularly the absence of an independent determination by the Children’s Court under Section 19 of the Juvenile Justice Act, 2015.

1. Whether the Juvenile Justice Act, 2015 governed the proceedings where the alleged repeated offences extended beyond the Act’s commencement.

2. Whether the Children’s Court could proceed with an adult criminal trial without independently determining under Section 19(1) of the 2015 Act that the appellant needed to be tried as an adult.

3. Whether the failure to make that determination invalidated the conviction and sentence.

Sections 15, 18 and 19 of the Juvenile Justice (Care and Protection of Children) Act, 2015 establish safeguards for trying a child in conflict with law as an adult.

A Board’s preliminary assessment and transfer order under Section 18(3) do not automatically result in an adult trial: under Section 19(1), the Children’s Court must independently consider whether such a trial is needed; if not, it must conduct an inquiry as a Board and pass orders under Section 18.

In Sri Ganesh v. State of T.N., (2017) 3 SCC 280, the Supreme Court held that, for repeated alleged offences, juvenility is assessed by reference to the date of the last incident.

Ajeet Gurjar v. State of Madhya Pradesh, 2023 LiveLaw (SC) 857, and Barun Chandra Thakur v. Master Bholu, (2023) 12 SCC 401, affirm that the Children’s Court’s Section 19 inquiry is substantive and independent, not an empty formality.

The prosecution alleged repeated acts continuing until February 2016, after the 2015 Act came into force on 15 January 2016. Applying Sri Ganesh, the Court held that the Act governed the proceedings because the alleged last incident fell within its operation.

The record showed that the Board ordered an adult trial and transferred the case, but the Children’s Court proceeded to frame charges without recording any independent Section 19 determination.

The Court rejected the State’s contention that the omission was merely procedural: treating the Board’s transfer order as sufficient would eliminate the separate safeguard that Section 19 requires.

The failure was therefore a condition-precedent defect in the adult trial, not an error curable by relying on the evidence adduced at trial.

It set aside the conviction and sentence dated 5 March 2020, acquitted the appellant of the charges and allowed the appeal.