Gauhati High Court
Mahabur Islam @ Mahabur Eslam @ Rahman vs The State Of Assam And Anr on 25 November, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
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GAHC010011512022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./11/2022
MAHABUR ISLAM @ MAHABUR ESLAM @ RAHMAN
S/O MD. ALI AHMED
VILLAGE BARKUR,
PS DALGAON, DIST DARRANG, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:MISS BANESA KHATON
D/O MATLEB ALI
VILLLAGE BARKUR
PS DALGAON
DIST DARRANG
ASSAM
78411
Advocate for the Petitioner : MR H R A CHOUDHURY, MR. I U CHOWDHURY,MR. A AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
25.11.2025
(M. Zothankhuma, J)
Heard Mr. I.U. Chowdhury, learned counsel for the appellant and Ms. S.H.
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Bora, learned Addl. P.P., Assam. No one appears for the respondent No.2.
2. The appellant has made a challenge to the impugned judgment and order
dated 23.12.2021, passed by the learned Special Judge, Darrang, Mangaldai in
Special (POCSO) Case No.24/2018, by which he has been convicted under
Section 4 of the POCSO Act, 2012 and sentenced to undergo R.I. for 20 years
with a fine of Rs.10,000/-, in default, to undergo S.I. for 4 months.
3. During the pendency of the present appeal, the appellant filed I.A. (Crl.)
No.360/2023, raising a plea of juvenility for the first time. Taking note of the
plea of juvenility, this Court vide order dated 11.05.2023, directed the learned
Special Judge, Darrang, Mangaldai to conduct an enquiry on the age of the
appellant. As per the report dated 23.08.2023 submitted by the learned Special
Judge, Darrang, Mangaldai, the appellant was 16 years 10 months on the date
of the occurrence of the crime, which took place on 01.02.2017.
4. The age of the appellant had been determined by the learned Special
Judge, Darrang, Mangaldai on the basis of the school admission register,
counterfoil of the transfer certificate as well as the oral testimony of the
Headmaster of Dharanipur L.P. School. Though the learned A.P.P. for the State
had objected to the determining of the age of the appellant on the basis of the
school register and counterfoil of transfer certificate, on the ground that the
same could not be a basis on which the age could be determined, in terms of
Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in
short 'the 2015' Act), this Court vide order dated 08.12.2023 held that the same
could be the basis for determining the age of the appellant, as the same had
been corroborated by the Headmaster of the school, which would be in line with
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the law laid down by the Hon'ble Supreme Court in the case of State of
Chhattishgarh Vs. Lekhram reported in (2006) 5 SCC 736 and in the case
of Rishipal Singh Solanki Vs. State of U.P. reported in (2022) 8 SCC 602.
5. This Court, vide order dated 08.12.2023, had also directed the release of
the appellant on bail, with a direction to appear before the jurisdictional Juvenile
Justice Board within 15 days. The Juvenile Justice Board was thereafter required
to pass an order governing the future course of action to be taken with respect
to the appellant.
6. No report has been produced before us, which has been issued by the
Juvenile Justice Board, in terms of the order dated 08.12.2023 passed by this
Court. There is also nothing to show that the appellant has appeared before the
concerned Juvenile Justice Board. Be that as it may, we are of the view that on
a consideration of the provisions of the 2015 Act, the jurisdictional Juvenile
Justice Board may not be the proper authority to decide which course of action
is to be taken in respect of the appellant at this stage, as much water has
flowed under the bridge.
7. Section 14 of the 2015 Act provides that where any child alleged to be in
conflict with law is produced before the Board, the Board shall hold an inquiry in
accordance with the provisions of the 2015 Act and may pass such orders in
relation to such child, as it deems fit under Sections 17 and 18 of the Act. It
also states that 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. Section 14(5)(f)
(ii) provides that an inquiry of heinous offences in relation to a child above the
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age of 16 years, as on the date of commission of an offence, shall be dealt with
in the manner prescribed under Section 15.
8. Section 15 of the 2015 Act provides that in case of a heinous offence
alleged to have been committed by a child, who has completed or is above the
age of 16 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.
Section 15(2) provides that 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. Thus, Section 15 of the 2015 Act provides for
two courses to be followed in case of commission of heinous offence by a child,
who has completed 16 years of age. Either the Board passes an order in
accordance with Section 18(3) or takes up the matter by itself for trial as per
the Code of Criminal Procedure for trial in summons cases.
9. Section 18(3) of the 2015 Act provides that where the Board, after
preliminary assessment under Section 15, passes 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.
10. Section 2(20) of the 2015 Act defines "Children's Court'' to mean a Court
established under the Commissions for Protection of Child Rights Act, 2005 or a
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Special Court under the Protection of Children from Sexual Offences Act, 2012,
wherever existing and where such Courts have not been designated, the Court
of Sessions having jurisdiction to try offences under the Act.
11. Section 21 of the 2015 Act also provides that 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 the 2015 Act or IPC
or any other law for the time being in force.
12. In the case of Satya Deo alias Bhoorey Vs. State of Uttar Pradesh,
reported in (2020) 10 SCC 555, the Hon'ble Supreme Court has relied upon
another of it's judgment passed in Mumtaz Vs. State of U.P., reported in
(2016) 11 SCC 786 and held that in terms of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (as amended by Amendment Act 33 of 2006)
(hereinafter referred to as 'the 2000 Act'), in all cases where the accused was
above 16 years but below 18 years of age on the date of occurrence, the
proceedings pending in the Court would continue and be taken to it's logical
end, subject to an exception that upon finding the juvenile to be guilty, the
Court would not pass an order of sentence against him, but the juvenile would
be referred to the Board for appropriate orders under the 2000 Act.
13. In the present case, the appellant has already been tried by the Special
Court established under the POCSO Act and has been convicted as such. There
was no question of invocation of Sections 14, 15 or 18(3) of the 2015 Act,
inasmuch as, the appellant had not taken the plea of juvenility at any time
before his trial before the learned Trial Court and even prior to it. Thus, when he
has not taken any stand that he was a juvenile before the learned Trial Court,
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there was no violation of any of the appellant's rights and no prejudice can be
said to have been caused to him, due to him having been tried by the learned
Trial Court, which is empowered to do so under Section 18(3) of the 2015 Act.
As such, we are of the view that at this point of time, there is no requirement
for the jurisdictional Juvenile Justice Board to decide as to the course to be
taken in respect of the appellant, in terms of Section 15 of the 2015 Act, as the
hands of time cannot be turned back.
14. Accordingly, we hold that the direction passed vide order dated
08.12.2023 would have to be recalled in terms of Section 528 BNSS, as the
concerned Juvenile Justice Board would not be able to pass an appropriate
order at this stage in terms of Section 15 of the 2015 Act. Further, the
appellant's counsel submits that he does not want to withdraw the appeal.
Accordingly, the direction for the jurisdictional Juvenile Justice Board to pass an
order for the future course of action to be taken in respect of the appellant's
case, vide order dated 08.12.2023, is recalled.
15. The paper book having been provided to the counsels for the parties, list
the matter for hearing on 09.12.2025.
JUDGE JUDGE
Comparing Assistant
