Jamir Sk vs The State Of Jharkhand .... .... ...
2025 Latest Caselaw 4552 Jhar

Jharkhand High Court

Jamir Sk vs The State Of Jharkhand .... .... ... on 4 April, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
            Cr. Appeal (DB) No.1251 of 2023
                         With
                 I.A. No.11430 of 2024
                                   ------
Jamir Sk., aged about 23 years, son of Babu Sk., resident of Village-
Jaikistopur (Narayan Khor), P.O. Pakur, P.S. Pakur (M), District-
Pakur (Jharkhand)                           ....     ....       Appellant
                                Versus
The State of Jharkhand                      ....   ....   Opposite Party

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
   HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                    ------
        For the Appellant           : Mr. Gautam Kumar, Advocate
                                      Mr. Abhinav Raj, Advocate
                                      Mrs. Savita Kumari, Advocate
        For the State               : Mr. Pankaj Kumar, P.P.
                                      Mrs. Lily Sahay, A.P.P.
                                   ------
CAV on 05.03.2025                         Pronounced on 04/04/2025

Per Sujit Narayan Prasad, J.

1. The instant application has been filed under Section 9(2) of the

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

before this Court to declare the appellant as juvenile/ child at

the time of date of alleged occurrence.

Factual Matrix

2. The prosecution case is based on written-report dated

28.06.2016 filed by the informant, the victim alleging inter-alia

that the accused/applicant Jamir Sk. of the same village on the

pretext of marrying her established sexual intercourse with her

on a regular interval, as a result of which she became pregnant

and was carrying a fetus of 6-7 months. The accused in

connivance with his father and mother got the fetus aborted

without her consent by administering some medicine.

3. She further alleges that when she came to know about the

same she informed her mother and her mother went to the

house of the accused with a proposal of her marriage with the

accused, but the parents of the accused rejected the proposal

and drove them out from their house. Thereafter, a panchayati

was also held in the village, but the accused and her parents

denied to perform the marriage of the accused with the victim.

4. Accordingly, the police case has been registered bearing

Pakur (Mufassil) P.S. Case No. 85 of 2016 against the present

applicant/appellant on the basis of written-report of the

informant.

5. In order to substantiate the prosecution case, prosecution has

examined altogether eight witnesses in Session Trial and the

learned trial court after appreciation of evidence has found the

charges levelled against the present applicant proved beyond

reasonable doubt and accordingly the present applicant has

been convicted for the alleged offence under Sections 376, and

Section 313 of the IPC and under Section 6 of the POCSO Act.

6. The instant interlocutory application has been preferred by the

applicant/under Section 9(2) of the Juvenile Justice (Care and

Protection) of Children Act, 2015 to declare the appellant as

juvenile/ child at the time of date of alleged occurrence.

Submission of the learned counsel for the appellant

7. It has been contended by the learned counsel for the appellant

that the statute is very specific that in case a person alleged to

have committed an offence claims before a court other than a

Board, that the person is a child or was a child on the date of

commission of the offence, or if the court itself is of the opinion

that the person was a child on the date of commission of the

offence, the said court shall make an inquiry, take such evidence

as may be necessary (but not an affidavit) to determine the age of

such person, and If the court finds that a person has committed

an offence and was a child on the date of commission of such

offence, it shall forward the child to the Board for passing

appropriate orders and the sentence, if any, passed by the court

shall be deemed to have no effect.

8. The fact about assessment could not have been brought at the

appropriate time but the law is well settled that the assessment of

age can be raised before any court and it shall be recognized at

any stage, even after final disposal of the case, therefore, the

present application has been filed.

9. In support of this limb of argument the learned counsel for the

appellant has relied upon the judgment rendered by the

Coordinate Bench of this Court in Death Reference No.02 of

2020 (State through informant Sadhu Rai Vrs. Mithu Rai &

Ors.).

10. On the aforesaid premise the learned counsel for the petitioner

has stated that the instant interlocutory application is fit to be

allowed.

Submission of the learned Public Prosecutor and learned APP for

the respondent-State

11. While on the other hand, Mr. Pankaj Kumar, learned Public

Prosecutor along with Mrs. Lily Sahay, learned APP for the

respondent-State has submitted that the fact about

realization/consequence of the offence having been committed as

per the allegation cannot be assessed even by the Board after

lapse of considerable period of about 10 years.

12. It has been submitted that if in such circumstances where the age

of the appellant is being admitted as per the birth certificate

issued by the competent authority which has also been found to

be genuine as per the report submitted by the committee

constituted by the Deputy Commissioner, as has been brought on

record by way of affidavit filed on behalf of the State and as such,

the age of the present appellant is in between 16 to 18 years and

hence, the forum will only be changed having no effect in the

quantum of punishment in view of the amendment incorporated in

the Juvenile Justice Act, 2015 .

13. It has been contended that the judgment rendered by the

Coordinate Bench of this Court in Death Reference No.02 of

2020 (State through informant Sadhu Rai Vrs. Mithu Rai &

IOrs.) is not applicable in the facts and circumstances of the

present case. It has been submitted that, reference of the

judgment rendered by the Hon'ble Apex Court in the case of

Karan @ Fatiya Vrs. State of Madhya Pradesh, (2023) 5 SCC

504 has been taken in the judgment passed by the Co-ordinate

Bench of this Court in Death Reference No.02 of 2020 (State

through informant Sadhu Rai Vrs. Mithu Rai & Ors.) but there

is no active consideration to that effect.

14. It has been contended that in the judgment rendered in the case

of Karan @ Fatiya (supra), the fact about possibility of

assessment of mental status of accused person is impossible to

be assessed after lapse of time period and in that view of the

matter, if the judgment passed by the learned trial Court is being

quashed then it will lead to miscarriage of justice.

15. It has been contended that rather in the facts and circumstances,

the judgment rendered by another Co-ordinate Bench passed in

Cr. Appeal (DB) No. 93 of 2022 will be applicable and in that

view of the matter, the present application is fit to be dismissed.

Analysis

16. We have heard learned counsel for the parties and considered

the submission made in their behalf.

17. At the outset it needs to refer herein that the earlier this Court

vide order dated 24.04.2024 has directed the Juvenile Justice

Board, Pakur to conduct an inquiry about the juvenility of this

applicant/appellant and send a report to this Court within four

weeks.

18. Pursuant to the aforesaid direction, the said report was submitted

to this Court which has been kept on record with the record of the

instant case. In the said report the appellant has been assessed

to be aged about 16 years 2 months and 13 days on the date of

the occurrence and the basis of the said assessment is the

School Leaving Certificate and the Certificate issued by the

Principal In-charge of the concerned school as appended as

Annexure-S series to the instant Interlocutory Application.

19. On the basis of the finding of the aforesaid report the present

applicant has preferred the instant interlocutory application under

Section 9(2) of the Act 2015 to declare the appellant as juvenile/

child at the time of date of alleged occurrence.

20. In the backdrop of the rival submission as made by the learned

counsel for the parties and taking in to factual aspects of the

instant case, this Court would like to refer the provisions of

Juvenile Justice Act 2015 in order to ascertain the strength of the

said submissions.

21. We are conscious with the settled legal proposition that the

plea of juvenility, if has not been taken before the Trial Court,

the same can be raised at the appellate stage or even before

the Hon'ble Apex Court. There is no iota of doubt regarding

aforesaid proposition of law.

22. Further the aforesaid settled legal position has also been stipulated

under proviso of sub-Section 2 of Section 9 wherein it has been

stipulated that claim of juvenility may be raised before any court and

it shall be recognized at any stage, even after final disposal of the

case, and such a claim shall be determined in accordance with the

provisions contained in this Act and the rules made thereunder even

if the person has ceased to be a child on or before the date of

commencement of this Act, for ready reference the aforesaid

Section i.e. Section 9 sub-clause is being quoted as under:

(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

23. It needs to refer herein that merely because a casual adjudication

has taken place, it does not mean that a plea of juvenility cannot be

raised subsequently. So long as the right of a party subsists, one

can never say that finality has been attained. In a case where a plea

has been raised, but not adjudicated upon, the decision rendered

thereunder would not amount to attaining finality. Likewise, when

such a plea is not treated as one under Section 9(2) of the 2015 Act

in compliance with the procedural mandate specified thereunder, an

order rejecting such a plea would not be termed as a final one.

24. To put it differently, even assuming a plea of juvenility was raised

but not considered appropriately at the time of disposal of a Special

Leave Petition/Statutory Criminal Appeal, a Review Petition, or a

Curative Petition thereafter, it would not bar a competent Court from

deciding the said issue by following due procedure. But equally if an

adjudication is based on due determination, then there may not be

any room for another round of litigation. But, in a case where the

plea was not treated as an application under Section 9(2) of the

2015 Act and, the procedure mandated thereunder was not

followed, the principle as aforesaid would certainly apply as the right

of raising the plea of juvenility has not ceased and, therefore,

subsists, reference in this regard may be taken from the judgment

rendered by the Hon'ble Apex Court in the case of Om Prakash v.

Union of India, 2025 SCC OnLine SC 47.

25. Further, guidelines laying down the standards for evaluating the

claim of juvenility raised for the first time before the Hon'ble Apex

Court and the guideline were laid down by the Hon'ble Apex Court

in the case of Abuzar Hossain vs State of West Bengal (2012) 10

SCC 489, which are reproduced hereinbelow:-

"39. Now, we summarise the position which is as under:

39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the

first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court.

39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.

39.3. As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh [(2009) 7 SCC 415] and Pawan [(2009) 15 SCC 259] these documents were not found prima facie credible while in Jitendra Singh [(2010) 13 SCC 523] the documents viz.

school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such

documents for the purposes of Section 7-A and order an enquiry for determination of the age of the delinquent.

39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of the age of the delinquent.

39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.

40. The reference is answered in terms of the position highlighted in paras 39.1. to 39.6. The matters shall now be listed before the Bench(es) concerned for disposal."

26. It needs to refer herein that the Juvenile Justice (Care and

Protection of Children) Act which was enacted in 2000 to provide for

the protection of children and the same was amended twice in 2006

and 2011 to address gaps in its implementation and make the law

more child-friendly. During the course of the implementation of the

Act, several issues arose such as increasing incidents of abuse of

children in institutions, inadequate facilities, quality of care and

rehabilitation measures in Homes, high pendency of cases, delays

in adoption due to faulty and incomplete processing, lack of clarity

regarding roles, responsibilities and accountability of institutions

and, inadequate provisions to counter offences against children

such as corporal punishment, sale of children for adoption

purposes, etc. have highlighted the need to review the existing law.

27. Further, increasing cases of crimes committed by children in the age

group of 16-18 years in recent years makes it evident that the

current provisions and system under the Juvenile Justice (Care and

Protection of Children) Act, 2000, are ill equipped to tackle child

offenders in this age group. The data collected by the National

Crime Records Bureau establishes that crimes by children in the

age group of 16-18 years have increased especially in certain

categories of heinous offences.

28. Numerous changes are required in the existing Juvenile Justice

(Care and Protection of Children) Act, 2000 to address the above-

mentioned issues and therefore, it is proposed to repeal

existing Juvenile Justice (Care and Protection of Children) Act,

2000 and re-enact a comprehensive legislation inter alia to provide

for general principles of care and protection of children.

29. In fulfilment of the constitutional mandate and international

commitment, and being signatory to United Nations Conventions on

the Rights of the Child 1992, United Nations Standard Minimum

Rules for Administration of Juvenile Justice 1985, United Nations

Rules for Protection of Juveniles Deprived of Their Liberty 1990, the

Havana Convention on Protection of Children and Co-operation in

respect of Inter-country Adoption 1993 and other related

international instruments, Indian Parliament enacted the Juvenile

Justice (Care and Protection of Children) Act 2000 (56 of 2000). The

Act was repealed and another consolidated Act namely The

Juvenile Justice (Care and Protection of Children) Act 2015 (2 of

2016), called JJ Act 2015 hereinafter, replaced it. The Juvenile

Justice (Care and Protection of Children) Rules 2016 (JJ Rules

2016) were framed under the JJ Act 2015 and accordingly, The

Juvenile Justice (Care and Protection of Children) Rules 2016 (JJ

Rules 2016) were framed under the JJ Act 2015.

30. It requires to refer herein that as per section 2(35) of the JJ Act

2015, 'juvenile' means a child below the age of eighteen years.

Under the Act, Children have been divided into two categories,

namely, 'Child in conflict with law' (CCL) and 'Child in need of care

and protection'(CNCP). CCL means a child who is alleged or found

to have committed an offense and who has not completed eighteen

years of age. CNCP means a child who falls in any one of them (xii)

categories enumerated in section 2(14) of the JJ Act 2015.

31. In the aftermath of the Nirbhaya episode, the old JJ Act 2000 was

repealed and replaced by the new JJ Act 2015, paving way for a

separate classification of children, in the age group of 16 to 18

years, who are involved in heinous crimes. A separate scheme of

prosecution of such CCL as an adult has been prescribed under the

JJ Act 2015. Thus, 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 dint of the said Act.

32. As per the JJ Act 2015, criminal offences are classified into three

categories i.e., 'petty offences', 'serious offences' and 'heinous

offences'. Petty offences include the offences for which maximum

punishment under the Indian Penal Code or any other law for the

time being in force is imprisonment up to three years. Serious

offences entail a punishment of imprisonment between three to

seven years. Heinous offences are those offences for which

punishment of imprisonment for seven years or more is prescribed.

33. It is evident from the JJ Act 2015 that children in conflict with law

(CCL), in the age group of sixteen to eighteen years, who is found

involved in a heinous offence, is classified as a separate category

for the purpose of enquiry, punishment, custody, and rehabilitation.

Accordingly, section 14(5)(f) of the JJ Act 2015 prescribes that

inquiry of heinous offences- (i) for children below the age of sixteen

years as on the date of commission of an offence shall be disposed

of by the Juvenile Justice Board by following the procedure for trial

in summon cases under the Code of Criminal Procedure, 1973. (ii)

for children above the age of sixteen years as on the date of

commission of an offence shall be dealt with the manner prescribed

under Section 15.

34. Thus, 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. For ready reference Section 15 of

the Act 2015 is being quoted as under:

"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 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."

35. Thus, Section 15(1) of the JJ Act 2015 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 sixteen years, the JJB 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 terms of

Sub Section (3) of Section 18 of the Act. For ready reference the

Sub Section (3) of Section 18 is being quoted as under:

"18. Orders regarding child found to be in conflict with law.--(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, [or a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under Section 15, disposed of the matter] then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,--

(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;

(b) direct the child to participate in group counselling and similar activities;

(c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board;

(d) order the child or parents or the guardian of the child to pay fine:

Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;

(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years;

(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any period not exceeding three years;

(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home:

Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.

(2) If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders to--

(i) attend school; or

(ii) attend a vocational training centre; or

(iii) attend a therapeutic centre; or

(iv) prohibit the child from visiting, frequenting or appearing at a specified place; or

(v) undergo a de-addiction programme.

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

36. Thus, 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.

37. It is evident 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.

38. In the case 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.

39. Thus, from aforesaid discussion it is evident that Section 15(1)

provides that in case where a heinous offence/s are alleged to have

been committed by a child who has completed or is above the age

of sixteen years, the Board shall conduct 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 committed the offence. The Board,

after conducting such assessment, may pass an order in

accordance with the provisions of sub-section (3) of Section 18 of

the JJ Act. 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 of summons case under CrPC. Under first proviso to this

sub-section, the order passed by the Board is appealable under

Section 101(2) of the JJ Act.

40. Section 18(3) provides that where the Board after preliminary

assessment under Section 15 opines that there is a need for the

said child to be tried 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.

41. In the aforesaid position it is to be more practical, if 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. At this stage, now the said

appellant/child in the mid-age and then he takes a plea that he was

juvenile at the time of occurrence as he was aged between 16 and

18 years which would also evident from enquiry report, the

assessment as prescribed in terms of Section 15 of the Act cannot

be possible and 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.

42. In the case of Karan Alias Fatiya (supra) relied upon by learned

counsel wherein the Hon'ble Apex Court interpreted Section 9(3) of

Act 2015 and held that this sub-section does not specifically or

impliedly provide that the conviction recorded by any Court with

respect to a person who has been subsequently, after the disposal

of the case found to be juvenile or a child, would lose its effect,

rather it is only the sentence if any passed by the Court would be

deemed to have no effect. The relevant paragraph of the aforesaid

Judgment is being quoted as under:

"33. ...................... According to sub-section (3) of Section 9 of the 2015 Act, the Court which finds that the person who committed the offence was a child on the date of commission of such offence would forward the child to the JJB for passing appropriate orders and sentence, if any, passed by the court shall be deemed to have no effect. This does not specifically or even impliedly provide that the conviction recorded by any court with respect to a person who has subsequently after the disposal of the case been found to be juvenile or a child, would also lose its effect; rather it is only the sentence if any passed by the court would be deemed to have no effect.

.................................................................

35. The intention of the legislature was to give benefit to a person who is declared to be a child on the date of the offence only with respect to its sentence part. If the conviction was also to be made ineffective then either the jurisdiction of regular Sessions Court would have been completely excluded not only under Section 9 of the 2015 Act but also under Section 25 of the 2015 Act, provision would have been made that on a finding being recorded that the person being tried is a child, a pending trial should also be relegated to the JJB and also that such trial would be held to be null and void. Instead, under Section 25 of the 2015 Act, it is clearly provided that any proceeding pending before any Board or court on the date of commencement of the 2015 Act shall be continued in that Board or court as if this Act had not been enacted.

39. For all the reasons recorded above, it is ordered as follows: The conviction of the appellant is upheld; however, the sentence is set aside. Further as the appellant at present would be more than 20 years old, there would be no requirement of sending him to the JJB or any other child care facility or institution. The appellant is in judicial custody. He shall be released forthwith. The impugned judgment [Karan v. State of M.P., 2018 SCC OnLine MP 1849] shall stand modified to the aforesaid extent."

43. Further in the said judgment the appellant who claimed himself as

juvenile at the time of commission of the alleged crime was below

15 years of age and taken in to consideration the present age of

said appellant who is now 20 years of the age has observed that,

there would be no requirement of sending him to the JJB or any

other child care facility or institution. However, the said appellant is

directed to release forthwith.

44. It needs to refer herein 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.

45. Learned counsel for the appellant has relied upon the judgment

passed by the Coordinate Bench of this Court passed in Death

Reference No.02 of 2020 (State through informant Sadhu Rai Vrs.

Mithu Rai & Ors.).

46. While on the other hand, learned counsel appearing for the

respondent-State has also relied upon the order passed another

Coordinate Bench of this Court passed in Cr. Appeal (DB) No. 93 of

2022.

47. We have considered both the judgments.

48. It is evident from the judgments passed by the Coordinate Bench of

this Court in Death Reference No.02 of 2020 (State through

informant Sadhu Rai Vrs. Mithu Rai & Ors. that although, in the

aforesaid judgment, the judgment rendered by the Hon'ble Apex

Court in the case of Karan @ Fatiya (Supra) has been referred but

there is no specific consideration of the said judgment by coming to

the conclusion regarding the applicability of the said judgment in the

facts of the said case.

49. While, on the other hand, the judgment passed by another

Coordinate Bench of this Court in Cr. Appeal (DB) No. 93 of 2022

dated 12.09.2024 wherein the view has been expressed that due to

lapse of considerable period of time, it is quite impossible to assess

the mental status of the accused person with respect to the

assessment of consequence of commission of crime which has

been committed by accused.

50. This Court, on consideration of the aforesaid judgment, is of the

view that the judgment dated 12.09.2024 passed in Cr. Appeal (DB)

No. 93 of 2022 appears to be more applicable in the instant case.

51. Now in the backdrop the aforesaid settled legal position, this Court,

is now adverting to the facts of instant case. It is evident from the

record that in compliance of the order dated 24.04.2024 passed by

the Co-ordinate Bench of this Court the Juvenile Justice Board,

Pakur, has enquired the claim of juvenility of the appellant and the

report of the same has been submitted wherein it has been

mentioned that at the time of alleged occurrence, the said appellant

was Juvenile and was the age of 16 years and 2 months

approximately.

52. In the instant case, admittedly on the date of occurrence, as

claimed by the appellant, age of the appellant was 16 years and few

months and few days and the offence is of rape of minor girl and

that too by pretext of marriage with her, this offence is heinous and

considering the age of this appellant, as claimed by him, which is in

between 16 to 18 years, it cannot be said that he did not have the

mental and physical capability.

53. Now the age of the appellant is more than 25 years as he claims his

date of birth is 15.04.2000, thus, now it is not possible to assess

what was his mental status and ability when he was between 16

years to 18 years when he has alleged to be committed the said

occurrence.

54. Thus, on the basis of the discussion made hereinabove, this Court,

is of the view that no purpose will be achieved by allowing the

instant interlocutory application.

55. Before parting with the order, it needs to refer herein that the learned

counsel for the state has not disputed the said enquiry report dated

07.05.2024 since on record there is no affidavit has been filed in this

regard.

56. Accordingly, interlocutory application being I.A. No.11430 of 2024 is,

hereby, rejected.

(Sujit Narayan Prasad, J.)

I Agree

(Pradeep Kumar Srivastava, J.)

(Pradeep Kumar Srivastava, J.)

Rohit/- A.F.R.