Madhya Pradesh High Court
Shivam Yadav vs The State Of Madhya Pradesh on 20 October, 2021
Author: Anand Pathak
1 Cr.R.No.1123/2020
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
:SINGLE BENCH:
{JUSTICE ANAND PATHAK, J.}
CRIMINAL REVISION NO.1123/2020
Shivam Yadav
Vs.
State of Madhya Pradesh
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Shri Gaurav Mishra, learned counsel for the petitioner.
Ms. Padamshree Agrawal, learned Panel Lawyer for the
respondent/State.
Shri R.K. Goyal, learned counsel for the complainant.
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ORDER
(Passed on 20th day of October, 2021)
1. This criminal revision under Section 102 of Juvenile Justice
(Care & Protection of Children) Act, 2015 (for short "Act of
2015") filed on behalf of child in conflict with law through his
legal guardian (father) Umesh Yadav against the order dated 31-
01-2020 passed by Special Judge (POCSO Act), Morena in
Criminal Appeal No.7797/2019; whereby, appeal preferred by
petitioner has been dismissed and order passed by Principal
Magistrate, Juvenile Justice Board dated 28-11-2019 has been
affirmed. By the order of the Juvenile Board dated 28-11-2019,
trial of the petitioner has been transferred to the Children Court
under Section 18(3) of the Act of 2015.
2. Precisely stated facts of the case are that petitioner -child in
conflict with law, is facing allegations of offence under Sections
363, 354, 368, 376(D), 376(2)(1), 120-B and 210 of IPC and
Sections 7/8 of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter referred to as "the POCSO Act")
registered at Crime No.933/2019 at Police Station City Kotwali,
Morena.
3. In the case in hand some adults are also accused who are being
tried by competent Court (Sessions Court) whereas petitioner
was placed before Juvenile Justice Board for ascertaining his
status as juvenile or an adult to be tried by Sessions Court
(Children Court).
4. Proceedings under Section 15 of the Act of 2015 was
undertaken by the Board regarding preliminary assessment into
heinous offence and given questionnaire which was responded
by petitioner/child in conflict with law (CICL) and Social
Investigation Report (SIR) was also sought from the Probation
Officer and looking into the nature of offence, the Board came
to the conclusion that petitioner aged 17 years 2 months and 11
days at the time of commission of offence, appears to be an
accused to be tried as an adult. Therefore, vide impugned order
dated 28-11-2019 Board referred the case to District and
Sessions Judge (Children Court), Morena for appearance.
4. Being aggrieved by the said order, petitioner preferred an appeal
before the Special Judge (POCSO Act), Morena and the said
Court vide order dated 31-01-2020 dismissed the appeal and
maintained the order passed by the "Board" therefore, this
revision has been preferred by the petitioner challenging both
the orders.
5. Learned counsel for the petitioner Shri Mishra vehemently
argued the case on behalf of petitioner and submitted that both
the Courts below have erred in passing the impugned order.
Preliminary assessment has not been done properly and orders
suffer from unreasonableness and arbitrariness. Right of
petitioner to face free and impartial trial has been affected.
6. Learned counsel for the petitioner referred the judgment of
Supreme Court of the United States in the case of Morris A.
Kent, Jr. Vs. United States and the judgment rendered by the
Supreme Court of Canada in the case of R. Vs. D.B. as well as
the judgment rendered by the High Court of Bombay in the case
of Mumtaz Ahmed Nasir Khan and others Vs. The State of
Maharashtra and others, 2020 ALLMR (Cri) 974 to bring
home the analogy that case of juvenile needs to be seen
differently and in the case referred above Courts have rejected
the contention about prosecution of juvenile in regular Session
Court.
7. On the other hand, learned counsel for the respondent/State
opposed the submissions and and prayed for dismissal of
appeal and supported the impugned order.
9. Learned counsel for the complainant Shri Goyal also matched
the vehemence of counsel for the petitioner and while
supporting the impugned orders submitted that looking to the
nature of allegations and heinousness of crime purported over a
girl aged 13 years, therefore, conduct of CICL established his
culpability. Petitioner knowing fully well the consequences
committed such offence. According to him, case needs to be
tried before regular Sessions Court. He prayed for dismissal of
revision petition.
10. Heard learned counsel for the parties and perused the documents
appended thereto.
11. This is a case where petitioner is seeking exemption from
rigours of prosecution before the Sessions Court for obvious
reason, because trial in the regular Sessions Court is offence
oriented whereas Juvenile Court is offender oriented. In regular
Sessions Court, nature of crime committed and role of accused
are seen whereas in the Juvenile Court reformatory approach
and reconciliation between societal retribution and child future
are balanced. Therefore, different provisions have been made in
the Act of 2015 wherein Sections 15 and 18 are relevant in the
present context.
10. Section 15 of the Act of 2015 deals with preliminary assessment
into heinous offences by Board in which Board shall have to
conduct preliminary assessment with regard to:
i- Mental and physical capacity to commit such offence,
ii. Ability to understand the consequences of the offence and
iii. Circumstances in which he allegedly committed the
offence.
Thereafter, Board may pass the order in accordance with
the provisions of sub-section (3) of Section 18 of the Act of
2015.
11. Sub-section (3) of Section 18 of the Act of 2015 empowers the
Board to pass order by holding need for trial of the said child as
an adult and Board may order transfer of the trial of the case to
the Children's Court having jurisdiction to try such offence. In
Section 15 itself proviso gives discretion to the Board which
may take assistance of an experienced Psychologist or Psycho
Social Work or other experts. Therefore, important
consideration for the Board has three fold as referred above.
12. Here, in the present case a questionnaire was given to the
Juvenile to assess his mental and physical capacity to commit
such offence as well as his ability to understand the
consequences of offence. Juvenile narrated the incident in detail
and from his description, it appears that twice he went to
different places; one at Look Restaurant and thereafter in Upkar
Hotel which shows his mental culpability and intention to
participate in commission of offence prima facie. As per
allegation he shot the video of prosecutrix in compromised
position but petitioner denies the same. Therefore, it is a matter
of evidence and for that this Court refrains to make any
observation on merits. However, to ascertain mental and
physical capacity of petitioner, it appears that he was
sufficiently, mentally and physically capable to commit such
offence.
13. Incidently, investigation and charge-sheet also indicate that
when the incident took place with prosecutrix at Look
Restaurant where present petitioner was present, he watched
the prosecutrix in compromised position and then he accepted
his realization that something wrong is going on. It means that
he understands the consequences of an offence.
14. Even otherwise, SIR prepared by the Probation Officer also
found the petitioner physically healthy and mentally capable to
commit such offence. As such petitioner is 17 years 2 months
and 11 days old at the time of commission of offence. He
appears prima facie as criminal who happened to be young, not
the child who happened to be a criminal .
15. In the case of Morris A. Kent, Jr. (supra) as relied upon by
counsel for the petitioner appears to move in different factual
realm for the reason that in the said case opportunity of hearing
was not accorded to the juvenile, therefore, matter was
remanded back and judgment as rendered by Supreme Court of
Canada in the case of R.(supra) the constitutionality of different
provisions of Youth Care Justice Act was under consideration.
Therefore, it also of not much help to the cause of petitioner.
So far as judgment of Bombay High Court in the case of
Mumtaz Ahmed Nasir Khan and others (supra) is concerned,
on the merit of that particular case, order of Board and the
Appellate Court have affirmed in which finding has been given
for trial of juvenile board of Board only as a juvenile. Factual
contours of the said case were different. They cannot be
brought to draw comparison.
16. Considering the overall facts and circumstances of the case and
the subjective satisfaction reached by the Board and First
Appellate Court, this Court does not intend to take a different
view in revisional jurisdiction to scrutinize legality or propriety
of the orders and specifically when both the Courts below after
due consideration passed a reasoned order.
27. Consequently, petition sans merits and is hereby dismissed.
Courts below be informed accordingly.
(Anand Pathak)
Anil* Judge
ANIL Digitally signed by ANIL KUMAR
CHAURASIYA
KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
CHAURASIY st=Madhya Pradesh,
2.5.4.20=8512f40a1a9eaa50b6802d068b5
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Date: 2021.10.21 08:45:07 -07'00'
