Jharkhand High Court
Sobhnath Bhogta @ Somnath Pradhan (Age ... vs The State Of Jharkhand on 12 September, 2024
Author: Ananda Sen
Bench: Ananda Sen, Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 93 of 2022
1. Sobhnath Bhogta @ Somnath Pradhan (age 23 years), son of Chamru
Bhogta, resident of Village Chirudih Tilai Danr, P.O. & P.S. Palkot, District
Gumla
2. Madan Pradhan (age 22 years), son of Laldeo Pradhan, resident of
Village Soso Kadam Toli, P.O. + P.S. + District Gumla
.... .... .... Appellants
--Versus--
The State of Jharkhand .... .... .... Respondent
With
Criminal Appeal (D.B.) No. 295 of 2022
Yashwant Pradhan @ Baijnath @ Jaswant Pradhan aged about 22 years son of
Rantha Pradhan, resident of Chirudih Tilai Danr, P.O. & P.S. Palkot, District
Gumla .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
CORAM: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
For the Appellants : Mr. P.P.N. Roy, Sr. Advocate
Mr. Pandey Ashok N. Roy, Advocate
Ms. Pragati Prasad, Advocate
For the State : Mr. Pankaj Kumar, P.P.
Ms. Vandana Bharti, A.P.P.
------
Reserved On: 21.08.2024 Pronounced On:12.09.2024
Per Gautam Kumar Choudhary, J.
1. I.A. No.7803 of 2023 in Cr. Appeal (D.B.) No.93 of 2022 has been
filed on behalf of appellant- Sobhnath Bhogta @ Somnath Pradhan for being
released on bail in view of the age determination of the appellant by Juvenile
Justice Board recording a finding that the appellant was aged 17 years 10
months 23 days on the date of occurrence on 08.02.2017.
2. It is submitted by the learned counsel on behalf of the appellant that
earlier vide order dated 02.01.2023, the co-ordinate Bench of this Court had
referred the matter for age determination to the J.J. Board. In pursuant to the
direction, age of the appellant has been assessed and he has been found to be
child at the date of occurrence. In this view of matter, the judgment of
conviction and sentence was vitiated and is liable to be set aside, because the
appellant has been tried and convicted as an adult without following the
provisions of J.J. Act, 2015.
3. Learned A.P.P. has opposed the bail petition. It is submitted that the
appellant has been convicted for committing gang rape under Sections 376D,
341 and 342/34 of the IPC. The offence will come within the definition of
"heinous offences" as defined under Section 2(33) of the J.J. Act, 2015. In
view of the fact that the appellant was above 16 years and almost approaching
18 years, he was liable to be tried as an adult by the Children's Court as per
the provisions of the Cr.P.C. in terms of Sections 19 and 21 of J.J. Act, 2015. It
is also argued that this is not a case of a child below 16 years, where at any
stage when the age is determined to be below 16 years, matter is to be referred
to J.J. Board for enquiry. Once the child is found to be above 16 years, he has
to be tried as an adult as the offence involved is a heinous offence.
4. Having considered the submissions advanced on behalf of both sides
and the materials on record, the undisputed fact that emerges is that the
appellant- Sobhnath Bhogta @ Somnath Pradhan has been found guilty and
convicted for the offence under Section 376D of the IPC which is punishable
for minimum sentence of 20 years' imprisonment. It has been held by Hon'ble
Supreme Court in the case of Shilpa Mittal Versus State (NCT of Delhi) &
Another, (2020) 2 SCC 787 that offence is prescribed minimum sentence of
seven years or more can be regarded as heinous offence.
5. In order to refer the matter for adjudication by the Children's Court
three conditions need to be satisfied under Section 15 of the J.J. Act. The
conditions are: (i) Child is above 16 years, (ii) He should be accused of a
heinous offence and (iii) Board should have conducted a preliminary
assessment with regard to his mental and physical capacity that he had the
ability to understand the consequence of committing the said offence. In the
present case, the first two conditions have been satisfied, but since the plea
was not taken at the stage of trial, therefore, no psychological assessment
could be done by the Board. We find force in the argument advanced on behalf
of the State that in case of a child who has crossed the age of 18 years, it will
not be feasible for the Board to conduct psychological assessment of the child
regarding his capacity to understand the consequence of his act at the time of
commission of offence.
6. There exists a difference between a child below 16 years, and those
who are accused of or found guilty for a heinous offence and above 16 years.
In former case, any judgment or order passed is liable to be set aside if he
found to be below 16 years of age at any stage. Same is not the case with those
who have completed 16 years of age and are accused of heinous offence. They
are in case found to know the nature and consequence of their act, to be tried
as an adult under the provisions of Cr.P.C. If the plea of juvenility is not taken
at the stage of investigation, enquiry or trial and is taken for the first time at
the appellate stage, their mental capacity cannot be assessed and therefore,
there is no point in setting aside the judgment of conviction and referring the
matter to the Board under Section 15 for assessment into heinous offences. As
no psychological assessment can be done after the age of 18 years, such an
exercise will be an exercise in futility.
7. Appellant in the present case therefore cannot claim any prejudice for
the trial having been held not by a Children Court, but by an Additional
Sessions Judge under the provisions of Cr.P.C.
8. With regard to the petition for bail, this Court is of the view that
Section 12 of the J.J. Act will have no application after conviction for the
offence and Section 389 Cr.P.C. will apply. From a plain reading of Section 12
of the Act, it will be evident that it will apply in cases where a child is alleged
to have committed bailable or non-bailable offence and is apprehended or
detained by the police or appears before the Board. After conviction Section
12, will have no application.
Under the aforesaid facts and circumstance and for the reasons
discussed above, the interlocutory application of the appellant for grant of bail
under Section 12 of the Act, is rejected. Appellant shall be at liberty to prefer
application for suspension of sentence under Section 389 of the Cr.P.C.
I.A. No.7803 of 2023 filed in Cr. Appeal (D.B.) No.93 of 2022, is
hereby rejected.
9. I.A. No.4205 of 2022 has been filed in Cr. Appeal (D.B.) No.295 of
2022 on behalf of appellant- Yashwant Pradhan @ Baijnath @ Jaswant
Pradhan under Section 9(2) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 to carry out an enquiry regarding the determination of age
of the appellant on the date of occurrence.
10. It is submitted by learned counsel on behalf of appellant that the date
of birth as per the Admission Card issued by Jharkhand Academic Council,
Ranchi is 08.06.2001 and the incident had been taken place on 08.02.2017 and
therefore, on the date of incident the appellant was aged about 15 years 08
months.
11. In view of the aforesaid fact, we direct that the case of the appellant
be sent to the Juvenile Justice Board, Gumla for carrying out necessary
enquiry for determination of age of the appellant on the date of occurrence.
12. Let all the relevant materials be placed before the Juvenile Justice
Board, Gumla in order to verify the exact date of birth of the appellant on the
date of the occurrence.
Let a report on conclusion of enquiry be sent to this Court.
Let this case be listed immediately after receipt of the report under
the heading 'For Orders'.
I.A. No.4205 of 2022 stands allowed and disposed of.
Per Ananda Sen, J.
13. I have gone through the verdict of my brother Justice Gautam Kumar
Choudhary. I am entirely in agreement with the opinion expressed by my
brother, however, looking to the gravity of the issue involved, I also express
my views on the subject.
14. There are catena of decisions of Hon'ble Supreme Court, wherein it
has been held that plea of juvenility, if not taken before the Trial Court, can be
raised before the High Court at the appellate stage or even before the Hon'ble
Supreme Court. If the accused is adjudged as juvenile, an appropriate order
can be passed.
15. There is no doubt about the aforesaid proposition of law. But, in my
opinion, situation has changed a bit in view of the amendment of the Juvenile
Justice Act. Earlier, i.e., before the amendment of 2015, between 2000 and
2015, or before that, the child in conflict with law, if he was below 18 years,
was treated to be juvenile, and was tried accordingly by the Juvenile Justice
Board. The Board only had the jurisdiction in such circumstance. The
maximum punishment prescribed was 3 (three) years, no matter how heinous
the crime was. Thus, the child was kept in confinement for 3 years only.
16. After the Amendment Act of 2015, i.e., the Act No.2 of 2016, the age
of juvenility remains to be 18 years, but a sub classification has been created.
A child, who is below 18 years, is considered as a juvenile, however, some
changes have been introduced by virtue of the said Act. Irrespective of the
crime being heinous, if the child in conflict with law is less than 16 years,
proceeding would be conducted before the Juvenile Justice Board. In a case
where the child is above 16 years and is up to 18 years, if the offence is
heinous, as per Section 18 of the Act, a preliminary assessment has to be done
in terms of Section 15 of the Act. If a child above the age of 16 years, commits
a heinous offence, then the Board shall conduct preliminary assessment with
respect to his physical and mental ability and his ability to understand the
consequence of the offence and the circumstances under which he had
committed the offence and may pass an order in terms of Sub Section (3) of
Section 18 of the Act. Sub Section (3) of Section 18 provides that after
preliminary assessment under Section 15 of the Act, if the Board feels that the
child has to be tried as an adult, then the trial will be transferred to a
Children's Court having jurisdiction.
17. The aforesaid provision means that in an offence, which is heinous,
the Board has to first decide, considering the para-meters mentioned therein as
to whether the child has to be tried as an adult or not. Once the Board finds
that the child has to be tried as an adult, the case has to be transferred to the
Children's Court, otherwise the Board will proceed with the matter. If the
child is treated as an adult, the case is tried accordingly before the Children's
Court, he can be punished as an adult, with a rider that the punishment should
not be death or of life imprisonment without the possibility of release.
18. As per Section 15 of the Act, if the Board finds that the child above
16 years is having a sound mental and physical capacity to commit the offence
and has ability to understand the consequences of the heinous crime and the
circumstances thereto, he has to be tried as an adult by the Children's Court.
19. Since there is a difference between pre-amended and amended Act,
by virtue of the Amended Act, the Board has to undertake a preliminary
assessment in terms of Section 15 of the Act, wherein the Board shall assess
with respect to his physical and mental ability and his ability to understand the
consequence of the offence and the circumstances under which he had
committed the offence.
20. I am of the opinion that to take benefit of the aforesaid provision, the
accused at the very initial stage of trial, has to take the plea of juvenility, i.e.,
the plea that he is between 16 years and 18 years, to invoke Section 15 of the
Act read with Section 18 of the Act. I am of the opinion that it is necessary
because, if the child attains the age of 21 years and then takes a plea that he
was juvenile at the time of occurrence as he was aged between 16 and 18
years, the assessment as prescribed in terms of Section 15 of the Act cannot be
done. It would be impossible to go back in time to assess his mental and
physical status and his capacity and his ability to understand the consequence
of the offence and the circumstances thereof. If the plea of juvenility, that he is
between 16 years to 18 years, is allowed to be taken at any point of time, it
will amount to misusing the provision of law, as in each and every case a child
between 16 and 18 years will purposely not take the plea of juvenility at the
time of occurrence, and will take such plea after he attains majority, and then
will further take a plea that he was not capable to understand the consequence
of the offence and the circumstances thereof, knowing fully well that it will be
impossible for the Board to come to a logical conclusion.
21. Allowing him to take this plea at a belated stage, that he is more than
16 years and below 18 years will amount to giving him license to misuse the
provision of law.
22. There is a concept of latent lack of jurisdiction and patent lack of
jurisdiction. If an authority lacks jurisdiction to the effect that the subject
matter is not amenable to his decision, the case is of patent lack of jurisdiction.
If a child, prior to amendment, since there was no sub-classification of age
between 16 years and 18 years and as per law, all children, who were less than
18 years, even in heinous offences, were tried by Juvenile Justice Board, any
other Court lacked jurisdiction to try the offence. Thus, even at any stage, if
the plea of juvenility is taken and he is held to be below 18 years, regular
Court lacked jurisdiction to hear the case. This patent lack of jurisdiction goes
to the root and thus, it was open to the accused to take the plea of juvenility at
any point of time.
23. Position changed after the amendment when the sub classification
was made and child in conflict with law, who is aged between 16 and 18 years
and committing heinous crime, is placed in a different category.
24. If the accused knew the fact that he was juvenile between 16 and 18
years, at the time of occurrence and he took a chance by not disclosing the
said fact and faced trial before the Children Court or a Regular Court as an
adult, then later on he cannot take the defence that the Court did not have the
jurisdiction and the plea about his mental ability and his ability to understand
the gravity of the offence and consequence of the offence. No one can be
allowed to take a chance to defeat the purpose of the Act.
25. In the instant case, admittedly on the date of occurrence, as claimed
by the appellant, age of the appellant was 17 years 10 months and few days
and the offence is of rape of minor girl and that too by threatening her with
fire arms along with others. This offence is heinous and considering the age of
this appellant, as claimed by him, which is few days short of 18 years, it
cannot be said that he did not have the mental and physical capability. Now
the age of the appellant is more than 25 years as he claims his date of birth to
be 15.03.1999. Thus, now it is impossible to assess what was his mental status
and ability when he was between 16 years and 18 years.
26. Thus, if a juvenile is seeking to take benefits and claiming himself to
be physically and mentally incapable and also not capable to understand the
consequence of committing heinous offence, and is between 16 and 18 years
on the date of occurrence, he has to take that plea immediately at the very first
instance. He cannot be permitted to take this plea at a later stage. The
provisions of the Act cannot be misused so as to allow the appellant to take the
said plea at a much later stage or at the appellate stage.
(Ananda Sen, J.)
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, 12th September, 2024
AFR/Anit
