Kiran Dnyaneshwar Khandagale vs The State Of Maharashtra And ...
2023 Latest Caselaw 4478 Bom

                                             Cri.Application No.425 of 2023.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                   CRIMINAL APPLICATION NO.425 OF 2023
                                   IN
                      CRIMINAL APPEAL NO.82 OF 2023

Kiran Dnyaneshwar Khandagale                           ..Applicant
      Vs.
The State of Maharashtra
and anr.                                               ..Respondents

                               ----
Mr.Chaitanya C. Deshpande, Advocate h/f. Mr.Suyog S. Rathi, Advocate
for applicant

Mr.A.A.Jagatkar, APP for respondent no.1

Mr.S.B.Raje-Bhosale, Advocate for respondent no.2

                                   ----

                          CORAM : R.G. AVACHAT, J.

RESERVED ON : APRIL 03, 2023 PRONOUNCED ON : MAY 02, 2023

ORDER :-

This is an application for suspension of substantive

sentence of imprisonment. The applicant/appellant has been convicted

by learned Special Judge (POCSO), Aurangabad, vide order dated

17.01.2023 in Special Case (POCSO) No.161 of 2019, for the offences

punishable under Sections 376(2)(i) of Indian Penal Code and Section

4(2) of the Protection of Children from Sexual Offences Act and

2 Cri.Application No.425 of 2023

therefore, sentenced to suffer rigorous imprisonment for ten years

and to pay fine, with default stipulation.

2. Heard learned counsel for the parties.

3. Learned counsel for the applicant would mainly submit

that there is non-compliance of certain mandatory provisions of the

Juvenile Justice (Care and Protection of Children) Act, 2015 ("Act of

2015") and therefore, the application deserves to be allowed. On

merits of the case as well, he would submit it to be a fit case for

suspension of substantive sentence of imprisonment. He adverted

the Court's attention to the inconsistencies between the victim's

statement to the police and her evidence before the Court.

4. Learned counsel representing the victim filed affidavit-in-

reply. The affidavit contained the reasons given by the trial Court

with appreciation of the evidence in the case. According to learned

counsel, the victim was of the age of 7 years at the material time.

According to him, Section 19 of the Act of 2015 is not mandatory.

The word "may" appearing in sub-section (1) was adverted to in

support of his submissions. According to learned counsel, the

applicant did not prefer appeal against the order passed under

3 Cri.Application No.425 of 2023

Section 15 of the Act. The applicant, therefore, could not be heard

to say that there was non-compliance of Section 19 of the Act of

2015. The order passed by the Juvenile Justice Board about

preliminary assessment had become final and then only, the

applicant was tried. According to learned counsel, time is not ripe

for release of the applicant on bail.

Learned APP reiterated the submissions made by learned

counsel representing the victim.

5. Considered the submissions advanced. Perused the

impugned judgment and relevant provisions of the Act of 2015.

6. The applicant allegedly committed aggravated

penetrative sexual assault on the victim, aged seven years at the

relevant time. True, the applicant appears to have committed a

heinous offence and he, therefore, may not be entitled for grant of

application on factual merits of the case, but for non-compliance of

certain mandatory provisions of the Act of 2015. It would, therefore,

be necessary to reproduce the relevant provisions thereof.

7. Section 2(13) of the Act of 2015 defines the term "child

in conflict with law", to mean - a child who is alleged or found to

4 Cri.Application No.425 of 2023

have committed an offence and who has not completed eighteen

years of age on the date of commission of such offence.

Section 2(20) defines "Children's Court" to mean - 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.

Section 25 of the Commissions for Protection of Child

Rights Act, 2005, reads :-

Children's Courts.- For the purpose of providing speedy trial of offences against children or of violation of child rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify at least a court in the State or specify for each district, a Court of Session to be a Children's Court to try the said offences:-

Provided that nothing in this section shall apply if-

                       (a)       a Court of Session is already
                                 specified as a special court; or
                        (b)      a special court is already constituted,

for such offences under any other law for the time being in force.

5 Cri.Application No.425 of 2023

In short, it is the Court of Session, which is competent to

deal with/try heinous offence committed by a child.

8. Section 2(33) defines "heinous offences", as under:-

"heinous offences" includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more

9. Chapter II of the Act of 2015 speaks of general principles

of care and protection of children. Section 3 reads :-

3. General principles to be followed in administration of Act.- The Central Government, the State Governments, the Board, the Committee or other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:--

(i) Principle of presumption of innocence:- Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.

(ii) ..........

(iii) Principle of participation:- Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child.

6 Cri.Application No.425 of 2023

(iv) Principle of best interest:- All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential

(v) ..........

                        (vi)     ..........
                        (vii)    ..........
                        (viii)   ..........
                        (ix)     ..........
                        (x)      ..........
                        (xi)     ..........
                        (xii)    ..........
                        (xiii)   ..........
                        (xiv)    ..........
                        (xv)     ..........

(xvi) Principles of natural justice : Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.

Section 14 speaks of inquiry by the Board regarding child

in conflict with law. Sub-section (1) thereof reads :-

(1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under sections 17 and 18 of this Act.

                                              7                  Cri.Application No.425 of 2023



                               (2)   ..........

(3) A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board.

(4) ..........

(5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:--

                               (a)    ..........
                               (b)    ..........
                               (c)    every child brought before the

Board shall be given the opportunity of being heard and participate in the inquiry;

                               (d)    ..........
                               (e)    ..........
                               (f)    inquiry of heinous offences,--
                                      (i) ..........
                                      (ii) for child above the age of
                                      sixteen years as on the date of
                                      commission of an offence shall be

dealt with in the manner prescribed under section 15.

Section 15 of the Act of 2015 reads :-

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

8 Cri.Application No.425 of 2023

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 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 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 Code of Criminal Procedure, 1973 (2 of 1974)

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.

Section 18(3) of the Act of 2015 reads :-

18. Orders regarding child found to be in conflict with law.-

                     (1)       .....
                     (2)       .....

                     (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

9 Cri.Application No.425 of 2023

trial of the case to the Children's Court having jurisdiction to try such offences.

Section 19 of the Act of 2015 reads :-

19. Powers of Children's Court.- (1) After the receipt of preliminary assessment from the Board under section 15, the Children ś 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 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)       .....
                     (3)       .....
                     (4)       .....
                     (5)       .....

Section 21 of the Act of 2015 reads :-

21. Order that may not be passed against a child in conflict with law.- No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code or any other law for the time being in force.

10 Cri.Application No.425 of 2023

Section 101 of the Act of 2015 reads :-

101. Appeals.-

(1) Subject to the provisions of this Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty days from the date of such order, prefer an appeal to the Children's Court, except for decisions by the Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District Magistrate:

Provided that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time and such appeal shall be decided within a period of thirty days.

(2) An appeal shall lie against an order of the Board passed after making the preliminary assessment into a heinous offence under section 15 of the Act, before the Court of Sessions and the Court may, while deciding the appeal, take the assistance of experienced psychologists and medical specialists other than those whose assistance has been obtained by the Board in passing the order under the said section.

                      (3)      .....
                      (4)      .....
                     (5)    Any person aggrieved by an order of the

Children's Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973.

11 Cri.Application No.425 of 2023

10. The Central Government, in exercise of powers conferred

by proviso to sub-section (1) of Section 110 of the Act of 2015, has

made model rules. Rule 11 thereof speaks of completion of inquiry

of preliminary assessment under Section 15 of the Act of 2015. Rule

13 speaks of procedure in relation to Children's Court and Monitoring

Authorities. Rule 13 needs to be reproduced below.

13. Procedure in relation to Children's Court and Monitoring Authorities.-

(1) Upon receipt of preliminary assessment from the Board the Children's Court may decide whether there is need for trial of the child as an adult or as a child and pass appropriate orders.

(2) Where an appeal has been filed under sub- section (1) of section 101 of the Act against the order of the Board declaring the age of the child, the Children's Court shall first decide the said appeal.

(3) Where an appeal has been filed under sub- section (2) of section 101 of the Act against the finding of the preliminary assessment done by the Board, the Children's Court shall first decide the appeal.

(4) Where the appeal under sub-section (2) of section 101 of the Act is disposed of by the Children's Court on a finding that there is no need for trial of the child as an adult, it shall dispose of the same as per section 19 of the Act and these rules.

12 Cri.Application No.425 of 2023

(5) Where the appeal under sub-section (2) of section 101 of the Act is disposed of by the Children's Court on a finding that the child should be tried as an adult the Children's Court shall call for the file of the case from the Board and dispose of the matter as per the provisions of the Act and these rules.

(6) The Children's Court shall record its reasons while arriving at a conclusion whether the child is to be treated as an adult or as a child.

(7) Where the Children's Court decides that there is no need for trial of the child as an adult, and that it shall decide the matter itself:

(i) It may conduct the inquiry as if it were functioning as a Board and dispose of the matter in accordance with the provisions of the Act and these rules.

(ii) The Children's Court, while conducting the inquiry shall follow the procedure for trial in summons case under the Code of Criminal Procedure, 1973.

(iii) The proceedings shall be conducted in camera and in a child friendly atmosphere, and there shall be no joint trial of a child alleged to be in conflict with law, with a person who is not a child.

(iv) When witnesses are produced for examination the Children's Court shall ensure that the inquiry is not conducted in the spirit of strict

13 Cri.Application No.425 of 2023

adversarial proceedings and it shall use the powers conferred by section 165 of the Indian Evidence Act, 1872 (1 of 1872).

(v) While examining a child in conflict with law and recording his statement, the Children's Court shall address the child in a child-friendly manner in order to put the child at ease and to encourage him to state the facts and circumstances without any fear, not only in respect of the offence which is alleged against the child, but also in respect of the home and social surroundings and the influence to which the child might have been subjected.

(vi) The dispositional order passed by the Children's Court shall necessarily include an individual care plan in Form 7 for the child in conflict with law concerned, prepared by a Probation Officer or Child Welfare Officer or recognized voluntary organisation on the basis of interaction with the child and his family, where possible.

(vii) The Children's Court, in such cases, may pass any orders as provided in sub-sections (1) and (2) of section 18 of the Act.

11. Admittedly, the applicant was 16 years, 1 month and 5

days old, while he committed the offence in question. The Board

14 Cri.Application No.425 of 2023

conducted inquiry under Section 15 of the Act of 2015. It has been

observed in paragraph 9 of the order dated 02.05.2018, as under:-

"09. Though there are no criminal antecedents of present C.C.L. If a boy of 16 years of age physically gets attracted towards the girl of his age, then it is quite natural conduct. In this case, the victim is of 7 years. Therefore, nature of allegations against C.C.L. and act alleged is perverse. Such perverse act of C.C.L. is harmful to the society at large and cannot be accepted. Such perverse behaviour is dangerous to the society as well as for the C.C.L. Moreover, as per the allegations C.C.L. took victim to dilapidated Z.P. School building and then sexually assaulted her. This shows that C.C.L. is well aware that such act could not be done in the place where people are present or has easy access. C.C.L. chose the place where no one easily come. These circumstances also shows that he is well aware that what kind of act he is going to commit. Thereafter, he committed such act. Medical examination report of C.C.L. shows that he is capable of performance for sexual intercourse. In these circumstances Board is of opinion that C.C.L. has mental and physical capacity to commit such offence. He has ability to understand consequences of offence and thereafter he allegedly committed offence of rape. Therefore, there is need of trial of C.C.L. as adult. Hence, it will be appropriate to transfer the case to the Children Court having jurisdiction to try such offence. Hence, Board pass following order:-

ORDER

1. Case is transferred to Children Court, Aurangabad as per Sub Section 3 of Section 18 of

15 Cri.Application No.425 of 2023

Juvenile Justice (Care and Protection of Children) Act, 2015.

2. C.C.L. is directed to appear before Children Court, Aurangabad, on 14.05.2018."

12. Close reading of the order under Section 15 of the Act of

2015, indicates that there was no participation of the applicant

therein. He appears to have not been given an opportunity of

hearing. As such, it is a breach of the provisions of Section 3(iii)

and (xvi) and Section 14(2) and 14(5)(c) of the Act of 2015. It also

appears that a copy of the order passed under Section 15 of the Act

of 2015 was not served to the applicant. As such, there is non-

compliance of Rule 10-A(4) of the model Rules. For better

appreciation, said Rules are reproduced below.

4) Where the Board, after preliminary assessment under section 15 of the Act, passes an order that there is a need for trial of the said child as an adult, it shall assign reasons for the same and the copy of the order shall be provided to the child forthwith.

13. True, the applicant did not prefer an appeal under

Section 101(2) against the order of preliminary assessment, passed

under Section 15 of the Act of 2015.

16 Cri.Application No.425 of 2023

14. The question is whether, provisions of Section 19(1) of

the Act of 2015 are mandatory. Close reading of the said section

would indicate that the Children's Court has to take a call to decide,

as to whether there is need for trial of a child as an adult, before

proceeding to try him.

15. It appears that there is some anomaly in the provisions

of Section 19 and Section 101(2) of the Act of 2015. After

preliminary assessment, the Board is expected to refer the child to

the Children's Court, if it finds him to be tried by the Children's

Court, while Section 101(2) of the Act of 2015 indicates that it is the

Court of Session, which is appellate authority against the order

passed under Section 15. True, for all practical purposes, in terms of

the definition of the Children's Court stated herein above, it would be

the Sessions Court, which is competent to decide the appeal and

even try the child, who is alleged to have committed a heinous

offence. In view of this Court, when the child could not prefer an

appeal under Section 101(2) of the Act of 2015, it would be

mandatory on the Children's Court to first decide, whether there was

need or not for trial of the child as an adult. When, in the present

case, the applicant did not prefer an appeal against the order of

17 Cri.Application No.425 of 2023

preliminary assessment, passed under Section 15 of the Act of 2015,

it was obligatory on the part of the Children's Court to comply with

the provisions under Section 19(1)(i) or (ii) before it tried the

applicant as an adult and convicted him. It also appears that the

Board could have availed assistance of a Psychiatrist or an expert

before passing the order under Section 15. This Court, therefore,

finds the applicant to have been prejudiced in exercise of its rights

under the Act of 2015, particularly, participation in the proceedings

under Section 15 and non-compliance of Section 19(1) of the Act of

2015.

16. Since the application for suspension of substantive

sentence of imprisonment is being decided, it is observed that the

aforesaid findings are tentative in nature.

17. It will take time for the appeal to come up for hearing on

merits. It would, therefore, be desirable to list the appeal for final

hearing on the next date.

18. During hearing of the appeal, if the Court finally comes

to the conclusion consistent with the findings recorded in this

application, situation can be remedied by remanding the matter back

18 Cri.Application No.425 of 2023

to the Board and/or the Children's Court to comply with the

mandatory procedural aspect and then deal with the applicant in

accordance with law. It is reiterated that post commission of the

offence, the applicant was on bail. On his conviction by the

Children's Court, he has been taken into custody and is behind the

bars. At the time he committed the crime, he was 16 years and

little over one month of age.

19. For all the aforesaid reasons, the application is allowed.

During pendency of the appeal, the substantive sentence of

imprisonment to stand suspended. The applicant be released on

executing P.R. Bond in the sum of Rs.15,000/- (Rupees Fifteen

Thousand) with one surety in the like amount.

[R.G. AVACHAT, J.] KBP