Jharkhand High Court
Rajan Oraon vs The State Of Jharkhand on 29 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 565 of 2020
With
I.A. No. 11378 of 2024
1. Rajan Oraon, aged about 18 years, son of Udesh Oraon, resident of
Village Sangrampur, Post Office Boreya, Police Station Kankie,
District-Ranchi (Jharkhand).
... ... Appellant
Versus
The State of Jharkhand. ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mr. Binod Singh, Advocate
For the Respondent : Mr. Bhola Nath Ojha, APP
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CAV/Reserved on 23.04.2025 Pronounced on 29/04/2025
Per Sujit Narayan Prasad, J.
I.A. No. 11378 of 2024:
1. The instant interlocutory application has been filed under Section 9(2) and 9(3) 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 alleged occurrence.
Factual Matrix:
2. The prosecution case is based on the written report (Ext.3) addressed to the Officer-in-charge of Kanke Police Station; Ranchi submitted by the 'victim' (name withheld) on 27.11.2019. Therein she stated that on 26.11.2019 between 5.30 to 5.45 P.M, she along with her friend Mohan Singh Bodra (P.W.17) took the ring road from BIT Mesra to NUSRL Hostel where she was to get dropped. On the way they stopped near Sangrampur Bus stand to attend nature's call and stayed back there for some time under the shade of bus stop. In the meantime, a car in which 6 to 7 people were crammed stopped before them. They were all inebriated.
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3. Furthermore, two persons on a Pulsar bike came to a halt before them. The occupants of the vehicles inquired the 'victim' and her friend as to why they were present at the bus stop. They responded that they had to go to NUSRL hostel. Upon this, few persons got down from the car and started hurling insults at the 'victim' and her friend and beating them. The accused persons addressed the two friends and stated, "You have taken up committing wrong and indulging in indecent behaviour on a regular basis and that is the reason you are sitting here." Thereafter, they started beating them again during the course of which, her spectacles fell off.
4. She further stated that they asked her to make a call to her mother. Her friend Mohan who was at that time in possession of her phone, handed it to her. She then made a call to her mother and as soon as her mother answered, one of the accused snatched her phone and held on to it. She further alleged that they attempted to persuade the accused that they were on their way to her hostel. This only seemed to make them stubborn and brash. They asked her whether they could drop her to the hostel and without waiting for a reply, they manhandled her into straddling the bike, registration number: JH-01-DQ-8951. The 'victim' and her friend screamed.
5. She further stated that two of the accused, whom she could identify by face, started threatening her that if she dared scream, she would be shot dead. The bike was driven by one person whereas another, seated behind her was holding her in place, gagging her mouth. They rode towards the road passing under the overbridge. She further submitted that the said bike halted after going some distance, perhaps because there wasn't enough petrol. In the meantime, the rest of their party in the car joined them, two of them forcibly pushed her into the car. While one was driving towards the overbridge, another was holding her, gagging her mouth. After covering a certain distance, the car turned to the right and started going towards what looked like a secluded place.
6. After some time, the car stopped near a brick kiln where there was no one whom she could ask for help. Meanwhile the cellphone belonging to the driver began to ring, she tried to snatch the phone but failed. The said
2 Cr. Appeal (D.B.) No. 565 of 2020 person got down from the car, locked it and called other persons asking them to come where they had parked.
7. She further alleged that she was forcibly pulled out of the car. She then spotted the Scooty that belonged to her friend and the two of the accused told her that it was her friend's Scooty and that they would take her to her friend. Instead, they forced her onto the scooty which, one of them drove while the other sat behind her, gagging her. They drove towards the overbridge for a while and then turned the Scooty into a Kachhi road.
8. She further stated in her written report (Ext.3) that she was so nervous that she couldn't utter a word. They drove into a field where she begged them to let her go but they did not heed. Several persons joined them there, one of them pushed her off the Scooty. He then went on to forcibly disrobe her. She stated that out of fear her whole body had become cold. Thereafter, each of the accused took his chance to commit rape upon her. Thus overpowered, she was at a loss as to what to do. Thereafter when she regained her understanding she found herself gagged once again, on her friend's Scooty going towards the overbridge. She shoved the hand covering her mouth and once again begged them to leave her. Incidentally, they left her near the bridge and the person sitting behind her ran away before she could tell him something.
9. She further stated that she was in a very painful condition at this time and therefore she prayed to the person who was driving the Scooty to take her to her friend. She also asked him for her phone back. She then spotted a red Bolero vehicle coming towards them. The person who was driving the Scooty informed her that they were also their friends and that they would commit the same wrong earlier committed upon her. She got frightened and implored the person who was driving the Scooty to take her away. The said person took her to a lonely place, stopped the scooty and told her that he would help her if she would be willing to indulge in sexual intercourse with him. Thereupon, she became very nervous, grasped his leg and started begging for mercy. He then took her to the overbridge and left her there.
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10. She then noticed that three persons in a red Bolero with the registration no. JH-0-T-7522 were approaching. Two of the three persons were the same people who had earlier committed rape on her. However, the third person took her by the Bolero to where her friend was waiting at Sanjivini Nursing Home at 9:45 PM where there were also persons other than her friend who told her friend to drop her to hostel. Her friend came to drop her to the hostel and enquired whether any wrong had been committed with her. She started crying and was not in a position to tell him anything. Her friend tried to calm her down, told her that it was quite late in the night and that he would come the next day and left.
11. She further stated that she dragged herself into her hostel where she met with her friend Indrani (P.W.3) who after seeing her condition, started asking what happened to her. Thereupon she hugged her and she started weeping. Indrani (P.W. 3) further questioned her upon which she narrated the entire mishap. Then her friend Indrani suggested her to tell her parents about the incident but her phone was not with her. Therefore, she tried to call her mother (P.W.18) using Indrani's phone but it did not materialize.
12. She further stated that she could not recall any other number. She then got another number of her mother from a (Bhaiya) cousin in the morning and she informed her mother (P.W.18) about the incident, thereupon her mother stated that she would be coming immediately and came at about 1:30 PM (on 27.11.2019) in the afternoon. On hugging her mother, she started weeping and narrated the entire incident.
13. She further disclosed in her written report (Ext.3) that the age of the persons who committed rape on her was in the range of 20-30 years old and the average height was between 5 to 5.5 feet. She further claimed that she could identify all the accused persons if they were brought before her and her friend Mohan could also identify them.
14. Accordingly, the police case was registered bearing Kanke P.S. Case No. 216/19 dated 27.11.2019 U/Ss 376D, 120B of the IPC and U/S 3 (2) of SC/ST Act on the basis of the written-report of the informant.
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15. After investigation police submitted the charge-sheet and case was committed to the Sessions Court and trial being Sessions Trial Case No. 668/2019 proceeded against the accused persons including the present applicant/appellant.
16. In order to substantiate the prosecution case, prosecution has examined altogether twenty-one 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 vide order dated 26.02.2020 for the alleged offence under Section 376D of IPC, under Section 366 read with Section 120B of IPC, under Section 341 read with Section 120B of IPC, Under Section 342 read with Section120B of IPC, Under Section 323 read with Section 120B of IPC, Under Section 379 read with Section 120B of IPC, Under Section 411 read with section 120B of IPC and under section 120B of the IPC.
17. The instant interlocutory application has been filed under Section 9(2) and 9(3) of the Juvenile Justice (Care and Protection) of Children Act, 2015 to declare the appellant/applicant as juvenile/child at the time of alleged occurrence.
Submission of the learned counsel for the appellant:
18. Learned counsel for the appellant has taken the following grounds by filing the instant interlocutory application:
(i) That the learned trial court has failed to appreciate the fact that on the alleged date of occurrence, i.e., on 26.11.2019, the appellant was a juvenile/child and the same can be confirmed/corroborated from the Matriculation Certificate which has been annexed with the instant application where the date of birth of the appellant has been mentioned as 20.01.2002.
(ii) It has been contended that as per Section 15(1) of the Juvenile Justice Act, in a case of heinous offence alleged committed by a child, who has completed or is above the age of sixteen years, the 5 Cr. Appeal (D.B.) No. 565 of 2020 Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, but due to non-compliance of the said provision the entire proceeding shall vitiate as also neither the chargesheet has been filed before the Board nor any preliminary assessment has been conducted to ascertain whether the appellant is to be tried as an adult or not.
(iii) Learned counsel for the appellant, to strengthen his argument, has relied upon a judgment rendered by the Hon'ble Apex Court in Ajeet Gurjar vs. State of Madhya Pradesh, 2023 SCC OnLine SC 1255.
19. Learned counsel for the appellant, on the aforesaid ground, has submitted that, therefore, the instant interlocutory application is fit to be allowed.
Submission of the learned Additional Public Prosecutor for the respondent-State:
20. Learned Additional Public Prosecutor appearing for the respondent-State in response to the ground taken by the appellant in the instant interlocutory application regarding non-appreciation of the fact by the learned trial court of the appellant being a juvenile/child at the time of incidence, has submitted that it would be apparent that the appellant has never raised such a point during the course of trial nor produced any document in this regard, as such, the learned trial court could not have considered to decide the issue of juvenility during the trial.
21. It has been submitted that the issue of juvenility has been raised for the first time in this memo of appeal.
22. It has been submitted that, if for the moment, the date of birth of the appellant, i.e., 20.01.2002 will be taken into consideration, then also at the time of commission of crime, the age of the appellant would be approximately 17 years and 10 months, 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.
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23. It has been contended that so far as the ground taken by the appellant regarding preliminary assessment of mental and physical capability to commit such an offence is concerned, 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.
24. Learned Additional Public Prosecutor, based upon the aforesaid ground, is of the view that the instant interlocutory application is fit to be dismissed.
Analysis:
25. We have heard learned counsel for the parties and considered the submission made on their behalf.
26. In the backdrop of the rival submission as made by the learned counsel for the parties and taking into consideration the 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.
27. 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.
28. 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 7 Cr. Appeal (D.B.) No. 565 of 2020 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.
29. It needs to refer herein the settled position of law that even in case of casual adjudication, 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.
30. 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.
31. 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.
32. 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 8 Cr. Appeal (D.B.) No. 565 of 2020 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
9 Cr. Appeal (D.B.) No. 565 of 2020 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."
33. 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.
34. Further, increasing cases of crimes committed by children in the age group of 16-18 years makes it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, were 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.
35. Numerous changes were required in the existing Juvenile Justice (Care and Protection of Children) Act, 2000 to address the abovementioned issues and therefore, it was 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.
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36. 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.
37. 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.
38. 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.
39. As per the JJ Act 2015, criminal offences are classified into three categories i.e., 'petty offences', 'serious offences' and 'heinous offences'.
11 Cr. Appeal (D.B.) No. 565 of 2020 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.
40. 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.
41. 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.
12 Cr. Appeal (D.B.) No. 565 of 2020 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."
42. 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;
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(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."
43. 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.
44. 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.
45. 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 14 Cr. Appeal (D.B.) No. 565 of 2020 that the punishment should not be death or of life imprisonment without the possibility of release.
46. 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.
47. 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.
48. 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.
49. It needs to refer herein that 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.
50. It also needs to refer herein the ratio of another order passed by Co- ordinate Bench of this Court in Cr. Appeal (DB) No. 93 of 2022 dated 12.09.2024 wherein in the almost similar factual aspect, the view has been expressed Co-ordinate Bench of this Court 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.
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51. So far, the reliance placed upon by the learned counsel for the appellant/applicant on the case of Ajeet Gurjar vs. State of Madhya Pradesh(supra) is concerned, the Hon'ble Apex Court in the said case while taking note of an application which was made by the appellant before the Children's Court (a Special Court constituted for trials of offences under the Mpdvpk Act) seeking compliance with the requirements of sub-section (1) of Section 19 read with Sections 6 and 15 of the JJ Act has observed that holding an inquiry in terms of clause (i) of sub-section (1) of Section 19 is not an empty formality. The reason is that if the Children's Court comes to the conclusion that there is no need to try the child as an adult, he will be entitled to be treated differently in the sense that action can be taken against him only in terms of Section 18 of the JJ Act.
52. There is no dispute about the settled position of law as settled by the Hon'ble Apex Court but the fact and circumstances of the said case is different from the fact of the instant case since trial has already been concluded 5 years ago and now at the appellate stage application under Section 9(2) has been filed for determination of mental capability of the applicant.
53. Now adverting to the factual aspects of the instant case wherein now the said appellant/child is about 23 years of the age and then he has taken a plea that he was juvenile at the time of occurrence as he was aged between 16 and 18 years (i.e. 17 years and 10 month) and to substantiate this fact the matriculation certificate has been annexed herein. But now the assessment of mental capability of the applicant as prescribed in the Act 2015 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.
54. 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 and if the such plea is 16 Cr. Appeal (D.B.) No. 565 of 2020 being taken immediately then it will be more feasible to access the issue of physically and mentally incapability or capability.
55. Further, the provisions of the Act 2015 cannot be misused so as to allow the appellant to take the said plea at a much later stage or at the appellate stage wherein it is not possible for the Board to find out the mental capability of the accused /juvenile reason being that the juvenile /accused crossed the age of maturity and became full blown adult of 23 years.
56. Herein admittedly on the date of occurrence, as claimed by the applicant/appellant, age of the appellant was 17 years 10 months and few days and the offence is of rape of a girl, which is heinous and grave offence and considering the age of this appellant, as claimed by him, which is near to 18 years at the alleged occurrence and as of now he is 23 years of the age, therefore, it is not practically possible for the Board to access his mental capability at the time of alleged occurrence.
57. Thus, it is evident from the aforesaid discussion made hereinabove that now the age of the appellant is more than 23 years as he claims his date of birth being 20.01.2002, thus, now it is not possible to assess what was his mental status and ability when he was 17 years and 10 months of age on the day he has been alleged to have committed the said occurrence.
58. 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.
59. Accordingly, interlocutory application being I.A. No.11378 of 2024 is, hereby, rejected.
I agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Saurabh /A.F.R.
17 Cr. Appeal (D.B.) No. 565 of 2020