Kerala High Court
Xxxxxx vs The State Of Kerala on 7 January, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
RPJJ NO. 3 OF 2024
NOORANADU POLICE STATION, ALAPPUZHA
CRIME NO.945OF YEAR 2023
ORDER DATED 20.07.2024 IN CC NO.5/2024,
JUVENILE JUSTICE BOARD, ALAPPUZHA
REVISION PETITIONER/CHILD IN CONFLICT WITH LAW:
XXXXX
AGED XXXX YEARS
XXXXX
BY ADVS. V.N.SANKARJEE
V.N.MADHUSUDANAN
R.UDAYA JYOTHI
M.M.VINOD
M.SUSEELA
KEERTHI B. CHANDRAN
VIJAYAN PILLAI P.K.
C.PURUSHOTHAMAN NAIR
SINEESH K.M.
SHILPA P.S.
RESPONDENTS/STATE AND COMPLAINANT:
1 THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM DISTRICT., PIN - 682031.
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-2-
2 THE INSPECTOR OF POLICE,
NOORANAD POLICE STATION, MAVELIKKARA TALUK,
ALAPPUZHA DISTRICT, PIN - 690504.
SRI R BINDU (SASTHAMANGALAM)-AMICUS CURIAE;
SRI P M SHAMEER-GP
THIS REV.PETITION(JUVENILE JUSTICE) HAVING COME UP
FOR ADMISSION ON 07.01.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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-3-
'C.R.'
ORDER
Devan Ramachandran, J.
The Juvenile Justice (Care and Protection of Children)
Act, 2000 [for brevity, 'the Act, 2000'] was enacted drawing
inspiration from the United Nations Convention on the Rights
of the Child, ratified by India on 11.12.1992. It was
embedded on the imperative constitutional provisions of
Article 15(3) of our Constitution, conferring powers on the
State to make special provisions for children; as also on the
stipulations in Articles 39(e) & (f), read with Articles 45 & 47,
which enjoins the State to ensure that all needs of children
are met and their basic human rights protected.
2. Though the afore Act did commendably well,
increasing cases of crimes committed by children in the age
group of 16 to 18 impelled a requirement for its
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comprehensive amendment, it being noticed that its provisions
were ill-equipped to tackle child offenders in that group. This
was fortified because, the data collected by the National
Crime Record Bureau indicated a rise in the number of
offenders in the age group of 16 to 18; particularly in
categories of crimes, which are defined as being heinous. This
led to the Juvenile Justice (Care and Protection of Children)
Act, 2015 [for brevity, 'the Act'].
3. One of the acme provisions in the 'Act' relating to
heinous offences committed by children in the age group of
16 to 18 is that, in certain specified circumstances and on the
enumerated criteria being attracted, such offenders would be
tried not as children, but as adults. The statutory provisions
empower the Juvenile Justice Board [for brevity, 'the Board'],
as also the Children's Court/Sessions Court in such regard.
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4. The petitioner in this case was charged in the year
2022, with offences alleged to have been committed by him
under Sections 354, 451, 342, 506, 376(3), 376(2)(n) of the
Indian Penal Code, 1860 [for brevity, 'the IPC'], along with
various Sections of the provisions of Protection of Children
from Sexual Offences Act [for brevity, 'the POCSO Act'], when
he was a mere 16 years in age. The "Board" of Alappuzha,
issued the impugned order, concluding that " the petitioner
had sufficient maturity to understand the act done by him and
the consequences of it" [sic]; and that "since no infirmity to
his mind and body is noticed, he should be tried as an adult
and not as a child" [sic]. It thereupon referred the matter to
the Children's Court for inquiry and this order is assailed by
him as being perverse, illegal and unlawful.
5. Dr.V.N.Sankarjee - learned Counsel for the
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petitioner, argued that the findings of the 'Board' are factually
impermissible, incorrect and misdirected; and that the offences
alleged against his client are baseless and without any factual
corroboration. He predicated that the impugned order is
peremptorily void because, it has been issued by the 'Board'
without taking the assistance of experienced Psychologists or
Psycho-social Workers and other experts, as is statutorily
mandated by the 'Act', under the proviso to Section 15
thereof. He then impelled an adscititious argument that his
client obtained no other option, but to have approached this
Court directly through a Revision because, the statutory
Appellate provision is reduced to being nugatory in his case
because, if he is to invoke it, it can only be preferred before
the Court of Sessions, which would render him without the
protection of the indispensable provisions of Section 19(1) of
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the 'Act', which provides for an inquiry by the 'Children's
Court', before he can be tried as an adult. He thus prayed
that the impugned order be set aside.
6. Adverting to the rather piquant legal issues that
are projected for our consideration, we requested Sri.Bindu
Sasthamangalam - learned Counsel of this Court, to assist us
as an amicus curiae. He has made available a meticulous
note, touching upon all the provisions of law; as also the
precedents that cover the field, which, we must say has been
of great assistance to us.
7. The learned amicus curiae pointed out that the
latter objection of the petitioner, as argued by his learned
Counsel, that had an Appeal been filed by his client against
the impugned order, it could have been preferred only before
the Court of Sessions and consequently that he would lose the
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beneficial umbra of the provisions of Section 19 of the 'Act' is
without any basis because, in Child in Conflict with Law
through his Mother v. State of Karnataka [2024 KHC 6268], it
has been clarified, beyond the pale of doubt, that wherever
the words 'Children's Court' or Court of Sessions is used in the
'Act', it shall be read interchangeably; and further that
wherever the former is available, all Appeals shall only be
instituted before it. He asserted that, this is the inviolable
corollary to the operational ambit of the 'Act' because,
whether it be the consideration of an Appeal, or the
assessment by the 'Board' under Section 15 thereof, before
finding the child deserving to be tried as an adult, the
'Children's Court' or the Sessions Court - as the case may be,
is enjoined to conduct an inquiry - which he emphasised was
mandatory in its tenor. He submitted that in such perspective,
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every such consideration automatically encompasses the
beneficial stipulation of Section 15 of the Act, including its
proviso, mandatorily requiring the obtention of assistance of
experienced Psychologist or Psycho-social Workers or other
experts. He showed us that, even going by Section 101(1) of
the 'Act' - which enumerates the appellate provisions - when
an Appeal is preferred against the order like the impugned
one, before the 'Children's Court' or the Court of Sessions - as
the case may be, the said Court is enjoined to take the
assistance of experienced Psychologists and Medical Specialists,
other than those whose assistance had been obtained by the
'Board'. He thus opined that, resultantly, an order akin to the
one impugned in this Revision ought to have been appealed
against by the petitioner before the 'Children's Court'/Court of
Session, since the provisions of Section 19 of the 'Act' would
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get automatically embedded to the consequential procedure to
be followed by it.
8. The learned Amicus Curiae then made submissions
qua the first limb of arguments of the learned Counsel for the
petitioner, namely that the impugned order is null and void
because, the proviso to Section 15 of the 'Act' has not been
followed by the 'Board', saying that this may not be tenable,
because the order impugned says that it had obtained "Social
Investigation Report and Counselling Report"; further to
which, it had conducted a personal assessment by itself. He
reiterated his opinion that, therefore, when the impugned
order is one issued by the 'Board' validly under Section 18(3)
of the 'Act' - thus referring the matter to the 'Children's
Court' for further action under Section 19 thereof - a Revision
against it is not maintainable and that the petitioner ought to
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have invoked his appellate remedy, as provided under Section
101 thereof.
9. Sri.P.M.Shameer - learned Government Pleader,
aligned his arguments more or less with that of the learned
Amicus Curiae, again referring to the various provisions of the
'Act', to contend that this Revision is not maintainable and
that the petitioner ought to have invoked his statutorily
alternative appellate remedy. The learned Government Pleader
argued that when a specific power of Appeal is provided in
the Statute itself, it was impermissible, and perhaps
unnecessary, for the petitioner to have approached this Court
directly because that would, in effect, denude him his
valuable right of having his case considered by a competent
Court of Session or ''Children's Court" - as the case may be;
and of then obtaining a further remedy, either before this
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Court, or other Forum, as may be permissible.
10. As we have said in the prefatory paragraphs of this
judgment, the scenario with which we are dealing with,
reflects a situation where a child of less than 18 years, but
more than 16, is alleged to have committed a 'heinous
offence'. This phrase is defined by Section 2(33) of the 'Act'
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;
11. After so defining the nature of the offence alleged,
Section 15 of the 'Act' provides that the Statutory Board will
conduct a preliminary assessment, with regard to the mental
and physical capacity of the child to commit such offence; his
ability to understand the consequence of the offence; and the
circumstances under which he has allegedly committed it; and
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only then, issue an order in accordance with Section 18(3) of
the Act. The proviso to Section 15 then mandates that, while
making such an assessment, the 'Board' may take the
assistance of experienced Psychologists, or Psycho Social
workers, or other experts.
12. Going to Section 18(3) of the "Act", after the
"Board" makes its preliminary assessment, it becomes
empowered to pass an order recommending the trial of the
child as an adult - if it enters into that view; and then order
transfer of the trial to the 'Children's Court', holding
jurisdiction.
13. This triggers a further set of consequences under the
'Act', namely, as are enumerated under Section 19 thereof,
which are extracted ut infra for ease of reference:
19. Powers of Children's Court- (1) After the
receipt of preliminary assessment from The 'Board' under
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Section 15, the Children's 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 (2 of 1974) 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) The Children's Court shall ensure that the
final order, with regard to a child in conflict with law,
shall include an individual care plan for the
rehabilitation of child, including follow up by the
Probation Officer or the District Child Protection Unit or
a social worker.
(3) The Children's Court shall ensure that the
child who is found to be in conflict with law is sent to
a place of safety till he attains the age of twenty-one
years and thereafter, the person shall be transferred to a
jail:
Provided that the reformative services including
educational services, skill development, alternative
therapy such as counselling, behaviour modification
therapy, and psychiatric support shall be provided to
the child during the period of his stay in the place of
safety.
(4) The Children's Court shall ensure that there is
a periodic follow up report every year by the Probation
Officer or the District Child Protection Unit or a social
worker, as required, to evaluate the progress of the
child in the place of safety and to ensure that there is
no ill-treatment to the child in any form.
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(5) The reports under sub-section (4) shall be
forwarded to the Children's Court for record and follow
up, as may be required.
14. It is thus ineluctable that, even when a 'Board'
passes an order under Section 18(3) of the Act - akin to the
order impugned in this Revision - the 'Children's Court'
cannot proceed to try the child as an adult, but must conduct
an inquiry to verify whether he can be so subjected to. Even
though Section 19 of the 'Act' employs the word 'may', the
Child in Conflict with Law through his Mother (supra) makes
it apodictic that it will have to be construed as 'shall'; and
that the 'Children's Court' must conduct an inquiry to arrive
at a decision whether the child deserves to be treated as an
adult, taking into account the totality of circumstances, as also
his/her special needs and tenets of fair trial. This inquiry is
imperative and can never be dispensed with by the 'Children's
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Court', since it is specifically designed to ensure that the child
is subjected to no prejudice; but adverting to the gravity of
the offence and his/her mental capacity to understand the
consequences of it, when he/she committed it.
15. Turning to Section 101 of the "Act", Appeals are
permitted against any order issued by the "Board" and fixes a
period of 30 days from such, to prefer it before the
"Children's Court".
16. However, Section 101(2) of the "Act" then provides
that an Appeal against an order of the 'Board' under Section
18(3) shall be made before the Court of Session and it is this
lacunae that is now sought to be projected by Dr.Sankarjee,
arguing that, if such an Appeal is preferred, the benefits of
provisions of Section 19(2) of the 'Act' - which, according to
him, authorises only the 'Children's Court' to conduct an
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inquiry - would be lost to his client.
17. However, as we have already said above, and as
rightly argued by the learned Amicus Curiae, in Child in
Conflict with Law through his Mother (supra), the Honourable
Supreme Court has declared, leaving no doubts, that the
'Children's Court' and the Court of Session are one and the
same; with the former to be preferred wherever it is
established. Viewed from such standpoint, the argument of
Dr.Sankarjee regarding the efficacy and the beneficial umbra
of Section 19 of the 'Act', while the 'Children's Court'/Court
of Session exercises jurisdiction in its appellate mode, loses its
significance and pales into redundancy.
18. We are persuaded to hold so also because, even
though Dr.Sankarjee says that only a 'Children's Court' under
Section 19(1) can cause an inquiry, as per Section 15 of the
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'Act', as to whether a child requires to be treated as an adult,
it is inescapable from Section 101(2) thereof that, when the
'Children's Court'/Sessions Court acts as an Appellate Court, it
is imperatively required to take the assistance of experienced
Psychologists and Medical Specialists, who shall be different
from those whose assistance were sought by the 'Board' by
passing its order under Section 18(3).
19. We do not think that any further safeguard is
required in such forensic scheme; and are convinced that the
Statute has certainly provided for the best protection to be
available to a child, viz a viz the gravity of offence committed
by him/her and his/her mental capacity, and such other
criteria.
20. To paraphrase, when the 'Children's Court'/Sessions
Court acts, either under Section 19 or Section 101(2) of the
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'Act', it is bound to act in express conformity with the
inviolable safeguards and requirements embedded in the
proviso to Section 15, as also Section 19 and 101(2); and thus
to cause necessary inquiry, involving Psychologists, Medical
Specialists, Psycho Social Workers or other experts, with the
singular necessity of verifying and convincing itself that it is a
fit case where the child can be construed to be an adult, for
the purpose of subjecting him to a trial under the provisions
of Section 19 of the Act.
21. We draw support for our opinion as afore from the
provisions of the Juvenile Justice (Care and Protection of
Children) Model Rules, 2016, in which, Rule 13(3) provides
that where an Appeal is filed invoking Section 101 of the
'Act' against the finding of the preliminary assessment of the
'Board' under Section 18 (3), the 'Children's Court' shall first
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decide that Appeal, and only then proceed to take any further
steps. It, therefore, becomes unnecessary for restatement that
the operational perimeter and functional ambit of the
'Children's Court'/Court of Session, while considering both the
Statutory Appeal and/or the reference made to it by the
'Board' under Section 18(3) of the 'Act' is analogous, if not
identical.
22. Understood thus, it becomes unnecessary for further
expatiation that the apprehension of the petitioner, that he
would lose the benefit of the inquiry mentioned above, if he
is to invoke his appellate remedy before the 'Children's
Court', is without any legs to stand on. We, therefore, repel
such, with the afore clarifications.
23. Now, coming to the first limb of the argument of
Dr.Sankarjee - that the present Revision is maintainable
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before this Court because the impugned order is perverse and
illegal and has been issued by the 'Board' in violation of law,
thus being null and void - it is perspicuous that he impels
this argument on the assertion that the 'Board' has not abided
by the proviso to Section 15 of the "Act". As we have
already mentioned above, the said proviso enjoins the 'Board'
to take the assistance of experienced Psychologists or Psycho
Social Workers or other experts, before it takes a decision
under the provisions of Section 18(3) of the 'Act'; and if this
had not been done, then there would surely be force in the
argument that such an order would fall foul of the Statutory
requirements, consequently liable to be declared null.
However, when one examines the impugned order, and as
again correctly pointed out by the learned Amicus Curiae, the
'Board' has crystally recorded that is has relied upon a 'Social
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Investigation Report' and 'Counselling Report'; and to have
then conducted a personal assessment, to ascertain whether
the petitioner is deserving of being treated as an adult, to
stand trial. These are issues in the realm of facts, into which
this Court cannot enter at this stage because, the power
invoked by the petitioner to approach this Court is Section
102 of the 'Act' which is as under:
Revision. - The High Court may, at any time,
either on its own motion or on an application
received in this behalf, call for the record of any
proceeding in which any Committee or 'Board' or
Children's Court, or Court has passed an order, for
the purpose of satisfying itself as to the legality or
propriety of any such order and may pass such order
in relation thereto as it thinks fit:
Provided that the High Court shall not pass an
order under this Section prejudicial to any person
without giving him a reasonable opportunity of being
heard.
24. As limpid from the afore, this Court is invested with
jurisdiction only to verify the legality and propriety of an
order passed by the 'Board' and nothing more. In other words,
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this Court does not exercise appellate jurisdiction at this stage,
but can only revise an order, which has been issued in
violation of law and propriety.
25. As said above, in the case at hand, the argument of
Dr.Sankarjee is that the impugned order has been issued in
violation of law, because the 'Board' did not obtain the
assistance of Psychologists and other experts, as mandated
under the proviso to Section 15 of the 'Act'. However, the
impugned order, prima facie, belies this argument, because
the 'Board' is specifically stated to have relied upon 'Social
Investigation Report and Counselling Report' and to have done
a personal assessment of the petitioner. Whether these reports
are valid in law, or whether they are sufficient within the
knell of the Statutory requirements, are matters which can
certainly be projected by the petitioner only in appellate
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procedure and not through a revision before this Court under
Section 102 of the 'Act'.
26. Once we notice that the essential requirements under
Section 15 appear to have been, at least prima facie, satisfied
by the 'Board' - without concluding whether they are
sufficient, proper or valid - our jurisdiction under Section 102
of the 'Act' would stand extinguished and it will not be
proper for us to speak on the merits of the order, or the
opinion of the 'Board', which needs to be left to the discretion
of the 'Children's Court'/Sessions Court, within the conjoined
reading of the provisions aforementioned and extracted.
27. Thus seen, the provisions of Sections 101(2) of the
'Act' and Section 19 thereof, run complementary to each other
and require to be read conjointly. To put it differently, the
procedure to be adopted by the Court is the same, whether it
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be consideration of the report from the 'Board', under Section
18(3) of the 'Act', or that of an Appeal preferred before it
against such.
28. In such view, we cannot find this revision to be
maintainable before us; and in any case, as rightly argued by
Sri.P.M.Shameer, it may cause a disservice to the petitioner
because, he would be denuded of a valuable right of Appeal,
under Section 101(2) of the 'Act'; before the Children's
Court/Sessions Court, especially when he may obtain further
rights as per the Statutory Scheme.
29. We place on record our commendation for
Sri.R.Bindu (Sasthamangalam) - learned Amicus Curiae, who
was very meticulous in his approach, guiding us through the
intricacies of law - which was rather novel to us - making
available the statutory provisions in action, as also the
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precedents covering the area. The effort of the Amicus Curiae,
certainly made our task lighter, enabling navigation of a path
which has to be done rather carefully, taking into account the
factum of the petitioner being a Child in Conflict with Law,
but charged with heinous offences.
30. When our minds as afore were disclosed to the
Bar, the learned counsel for the petitioner - Dr.V.N.Sankarjee
sought that his client be given liberty to file a statutory
appeal against the impugned order. We do not understand
why such a prayer should have been made because the right
of appeal is certainly available to the petitioner and going by
our view above, it would be necessary for the Children's
Court to consider every aspect, even if it were not to be filed
because it certainly will have to consider the reference already
made to it by this Court. Further, the statutory
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scheme has specific provisions for condonation of delay in
filing the appeal and we see no reason why the 'Children's
Court' would not consider it in its proper perspective,
especially within the factual aspect that the petitioner has
approached this Court through this proceedings, albeit
incorrectly.
In the afore circumstances, we dismiss this revision
with the afore observations.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
sp/rr/akv JUDGE
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APPENDIX
PETITIONER ANNEXURES
ANNEXURE-I TRUE COPY OF THE FIRST INFORMATION
REPORT DATED 13.10.2023 IN CRIME
NO.945/2023 OF THE NOORANADU POLICE
STATION.
ANNEXURE-II TRUE COPY OF THE FINAL REPORT DATED
2.11.2023 IN CRIME NO.945/2023 OF THE
NOORANADU POLICE STATION.
ANNEXURE-III TRUE COPY OF THE SOCIAL BACKGROUND
REPORT DATED 17.11.2023 OF THE CHILD
WELFARE POLICE OFFICER IN CRIME
NO.945/2023 OF NOORANADU POLICE
STATION.
ANNEXURE-IV TRUE COPY OF THE PLAN DATED 23.11.2023
PREPARED BY THE VILLAGE OFFICER,
THAMARAKKULAM.
ANNEXURE-V CERTIFIED COPY OF THE ORDER DATED
20.7.2024 IN C.C.NO.5/2024 OF THE
JUVENILE JUSTICE BOARD OF ALAPPUZHA.
