Madhya Pradesh High Court
Vidhi Ka Ullanghan Karne Wala Balak vs The State Of Madhya Pradesh on 5 March, 2025
Author: Anand Pathak
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
CRIMINAL APPEAL NO. 8194 of 2023
CHILD IN CONFLICT WITH LAW
Vs.
STATE OF MADHYA PRADESH
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APPEARANCE:
Shri Anil Kumar Mishra - Advocate for the petitioner.
Shri Vijay Sundaram- Public Prosecutor for the
respondent/State.
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ORDER
(Passed on 5th the day of March, 2025)
Per: Justice Anand Pathak
1. Heard on I.A.No.11581/2023, first application under Section 389(1)
of Cr.P.C. preferred on behalf of Child in Conflict with Law (CICL)
by his father - Murari Katare for suspension of jail sentence and
grant of bail.
2. This criminal appeal assails the judgment dated 16-06-2023 passed
in S.T.No.27/2021 by the Special Judge (POCSO Act/Children
Court), Bhind district Bhind whereby the appellant has been
convicted as under:
Section Imprisonment Fine
363 of IPC 5 years' RI Rs.5,000/- with default
stipulation.
366 of IPC 5 years' RI Rs.5,000/- with default
stipulation.
6 of POCSO 20 years' RI Rs.10,000/- with
Act/376 of IPC default stipulation.
3. At the outset learned counsel for the appellant raised the point
regarding non compliance of Section 15 of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (hereinafter referred to
as "the Act of 2015") and submits it as preliminary submission.
According to him, it is a question deserve to be decided first.
4. It is the submission of learned counsel for appellant that in absence
of any assessment under Section 15 of the Act of 2015, the Court
below erred in transferring the matter to the Children Court and
caused illegality. At the time of incident CICL was 16 years 9
months old. Therefore, his assessment was required to be done. In
absence of such assessment whole trial is vitiated.
5. Learned counsel for the respondent/State opposed the prayer and
submits that his assessment was carried out, therefore, the
contention as raised by learned counsel for the appellant is bereft of
merits.
6. Heard learned counsel for the parties at length and perused the
record.
7. In the present case primary objection of appellant/CICL is that
Children Court erred in conducting the trial and not treating the
CICL eligible to be tried as juvenile before the Juvenile Justice
Board. The order dated 03-02-2021 passed by Principal Magistrate,
Juvenile Justice Board, Bhind reveals that preliminary assessment
was carried out as per Section 15 of the Act of 2015 vide order dated
13-01-2021. For ready reference, Section 15 of the Act of 2015 is
reproduced 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."
8. Perusal of the order-sheet dated 13-01-2021 indicates that for
assessment of child as per Section 15 of the Act of 2015 was
referred to District Medical Board. When CICL appeared before the
District Medical Board then his assessment was carried out and vide
order dated 19-01-2021 District Medical Board gave its opinion.
Later on, when the matter was transferred to the Children Court then
Children Court also heard the application under Section 19 of the
Act of 2015 and the decided the same by a detail order dated 01-07-
2021. Therefore, it is not a case where no objective assessment is
carried out regarding juvenility of the appellant/CICL. Section 19 of
the Act of 2015 is worth reproduction:
"19. Powers of Children's Court.--(1) After the receipt of
preliminary assessment from the Board under 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.
(5) The reports under sub-section (4) shall be forwarded to the
Children's Court for record and follow up, as may be required."
9. Perusal of record and the order passed by the Juvenile Justice Board
and Children Court indicates that preliminary assessment as per
Section 15 and 19 of the Act of 2015 has been carried out in the case
in hand.
10. Resultantly, the objection raised by learned counsel for the appellant
is hereby rejected. Appellant is directed to advance his arguments on
the merits over the application for suspension of sentence.
11. List in the next week for hearing on the application for suspension
of sentence (I.A.No.11581/2023).
(ANAND PATHAK) (HIRDESH)
Anil* JUDGE JUDGE
ANIL KUMAR
CHAURASIYA
2025.03.07
10:57:19 +05'30'
