Madras High Court
Sri Harish vs State Represented By on 19 January, 2021
CRL.R.C.(MD).No.135 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON :21.07.2022
PRONOUNCED ON: 18.08.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRL.R.C.(MD).No.135 of 2021
and
Crl.M.P.(MD)No.1541 of 2021
Sri Harish,
Minor represented by his father and
Natural guardian
Muruganantham. : Petitioner/Appellant/
Juvenile Conflict with law
Vs.
State represented by
The Inspector of Police,
Kodaikanal Police Station,
Dindigul District.
In Crime No.249 of 2019 : Respondent/Respondent/Complainant
PRAYER: Criminal Revision Petition has been filed under Section 397 and 401
of Cr.P.C, r/w Section 102 of Juvenile Justice (Care and Protection of Children)
Act, 2015, to set aside the order passed by the Court of Fast Track Mahila Judge,
Dindigul in Crl.M.P.No.563 of 2020 on 19.01.2021, in confirming the order
passed by the Principal Judicial Magistrate, Juvenile Justice Board, Dindigul in
Crl.M.P.No.221 of 2019, on 10.10.2019.
https://www.mhc.tn.gov.in/judis
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CRL.R.C.(MD).No.135 of 2021
For Petitioner : Mr.Jothi Basu
For Respondent : Mr.S.Manikandan
Government Advocate(Crl.Side)
ORDER
The Criminal Revision Case is directed against the order passed in Cr.M.P.No.563 of 2020, dated 19.01.2021, on the file of the Fast Track Mahila Court, Dindigul dismissing the appeal/petition filed under Section 101(2) of Juvenile Justice (Care and Protection of Children) Act 2011.
2. The respondent registered a case in Cr.No.249 of 2019 against the petitioner for the offence under Section 302 I.P.C. Since the petitioner was shown as a Juvenile, the case was forwarded to the Juvenile Justice Board, Dindigul. An enquiry was conducted by the Juvenile Justice Board in terms of Section 15 of the Juvenile Justice Act in Cr.M.P.No.221 of 2019 and vide order dated 10.10.2019, a finding came to be recorded that the petitioner has to be treated an adult under Section 18 of the Juvenile Justice Act and the case has been transferred to the Sessions Court, Dindigul. When the case stood posted for framing of charges, the petitioner has filed the above petition claiming to be under Section 101(2) of Juvenile Justice Act, challenging the order passed by the Juvenile Justice Board for treating the petitioner as an adult. https://www.mhc.tn.gov.in/judis 2/14 CRL.R.C.(MD).No.135 of 2021
3. The learned Sessions Judge, upon considering the materials placed on record and on hearing the arguments of both sides, has passed the impugned order dated 19.01.2021, dismissing the said petition. Aggrieved by the said dismissal, the accused has come forward with the present Criminal Revision.
4. The main contention of the petitioner is that the Courts below ought to have seen that the petitioner's date of birth is 08.04.2022 and on the date of alleged occurrence ie., on 29.07.2019, he is 16 years 3 months and 21 days old and as such, he is a Juvenile conflict with law, that the Courts below have failed to note that at the time of alleged occurrence, the petitioner was studying 10 th standard, that the Juvenile Justice Board is duty bound to take into the assistance of experienced Psychologists or Psycho-Social workers or other experts, that the Courts below have also failed to note that the petitioner is a good student and did not come into any adverse inference, that though the Juvenile Justice Board has a duty to conduct a preliminary assessment about the mental and physical capacity of the Juvenile to commit such an offence, there are absolutely no materials available to show that the petitioner has mental and physical capacity to commit such an offence, that the Courts below have also failed to consider the social and economic condition of the Juvenile and that they have also failed to notice that the Juvenile and the deceased are friends and are studying in the same class. https://www.mhc.tn.gov.in/judis 3/14 CRL.R.C.(MD).No.135 of 2021
5. The learned Counsel for the petitioner would submit that the prosecution has not conducted proper medical examination to ascertain the correct age of the petitioner, that the petitioner is not having any previous cases registered against him, that the Juvenile Justice Board without considering the family circumstances of the Juvenile and without properly considering the psychological report of the accused, has passed the impugned order and that the learned Sessions Judge, without entering into those aspects, has proceeded mechanically and dismissed the petition.
6. Before entering into further discussion, it is necessary to refer Sections 15 and 18 of the Juvenile Justice Act, 2015:
“ 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.
https://www.mhc.tn.gov.in/judis 4/14 CRL.R.C.(MD).No.135 of 2021 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.
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, 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;
https://www.mhc.tn.gov.in/judis 5/14 CRL.R.C.(MD).No.135 of 2021
(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 childs 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 childs 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 childs interest, or in the interest of https://www.mhc.tn.gov.in/judis 6/14 CRL.R.C.(MD).No.135 of 2021 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.
7. The Juvenile Justice Board headed by the Principal Magistrate, after conducting enquiry with the petitioner and the enquiry in respect to the petitioner's age and on considering the psychological report given by the Medical Officer of Government Hospital, Dindigul and conciliation report from the District Child Protection Officer, has come to a decision that the petitioner had sufficient mental and physical capacity to commit the offence alleged against him and he had adequate ability to understand the consequences of the act committed by him. Admittedly, the petitioner has not denied or disputed the enquiry conducted by the Juvenile Justice Board and the examination conducted https://www.mhc.tn.gov.in/judis 7/14 CRL.R.C.(MD).No.135 of 2021 by the Medical Officer attached to the Government Hospital, Dindigul and the counselling given at the District Child Protection Office.
8. The main contention of the petitioner is that the prosecution has not conducted proper medical examination to identify the correct age of the petitioner. As already pointed out, even according to the petitioner, he was born on 08.04.2003 and the on the date of alleged occurrence, he was aged 16 years 3 months and 21 days. In the order passed by the Juvenile Justice Board, it has been mentioned that they have considered the certificate issued by the School Head Master and through the enquiry, they came to know that the petitioner was aged 16 years 3 months and 21 days on the date of alleged occurrence ie., on 29.07.2019. The petitioner has not specifically disputed the date of birth and his age, noted in the order of the Juvenile Justice Board.
9. It is necessary to refer the judgment of the Hon'ble Supreme Court in Rishipal Singh Solanki Vs. State of Uttar Pradesh and Others in Crl.A.No. 1240 of 2021, dated 18.11.2021, wherein after referring to the provisions of the Juvenile Justice Act, 2000 and Juvenile Justice Act 2015, elicited the difference in the procedures under two enactments and the relevant passages are extracted hereunder:
“47. Section 94 of the JJ Act, 2015 raises a presumption regarding juvenility of the age of the child brought before the JJ board or the https://www.mhc.tn.gov.in/judis 8/14 CRL.R.C.(MD).No.135 of 2021 Committee. But in case the Board or Committee has reasonable grounds for doubt about the person brought before it is a child or not, it can undertake the process of determination of age by seeking evidence. Thus, in the initial stage a presumption that the child brought before the Committee or the JJ Board is a juvenile has to be drawn by the said authorities. The said presumption has to be drawn on observation of the child. However, the said presumption may not be drawn when the Committee or the Board has reasonable grounds for doubt regarding the person brought before it is a child or not. In such a case, it can undertake the process of age determination by the evidence which can be in the form of: (i) Date of birth certificate from the school or the matriculation certificate from the concerned board, if available or in the absence thereof; (ii) The birth certificate given by a corporation or by a municipal authority or a panchayat and in the absence of the above; (iii) Age has to be determined by an ossification test or any other medical age determination test conducted on the orders of the committee or the board.
48.The age recorded by the Committee or the Board to be the age of the person so brought before it shall for the purpose of the JJ Act, 2015 be deemed to be the true age of the person. The deeming provision in sub-section (3) of section 94 of the JJ Act, 2015 is also significant inasmuch as the controversy or the doubt regarding the age of the child brought before the Committee or the JJ Board is sought to be set at rest at the level of the JJ Board or the Committee itself. ” https://www.mhc.tn.gov.in/judis 9/14 CRL.R.C.(MD).No.135 of 2021
10. It is pertinent to note that in the absence of date of birth certificate from the School or the Matriculation or equivalent certificate from the concerned Examination Board, or the birth certificate given by the Corporation or Municipal Authorities or the Panchayat, the age shall be determined by ossification test or any other latest medical age determination test can be conducted on the order of the Committee or the Board. The medical evidence as to the age of a person, though an useful guidance factor is not conclusive and has to be considered along with other cogent elements. Considering the above, the very contention of the petitioner that the prosecution's failure to conduct proper medical examination to ascertain the correct age of the petitioner is fatal, is absolutely devoid of substance and is liable for rejection.
11. It is pertinent to note that the Courts below have rightly give importance to the psychological report submitted by the Medical Officer and it is necessary to refer the same hereunder:
“Mental Status Examination:
He was conscious and oriented to place, time and person. He had adequate sleep and maintained self care and food intake. He was able to give answers to the questions relevantly and coherently. He had no thought or perceptual disturbances. His emotions were appropriate to the given stimulus. Attention was arousable and https://www.mhc.tn.gov.in/judis 10/14 CRL.R.C.(MD).No.135 of 2021 concentration was sustained. His abstraction and judgement were intact.
He was subjected to Psychological assessment. His Psychometric profile reveals that he has, Average Intellectual Capacity (P.I.Q of 97) with extroverted personality type and there is no major psychopathology at present. Based on the behavioral observation and psychological assessment there is no features of major psychopathology at present.”
12. As already pointed out, the petitioner has neither denied the examination done by the Medical Officer attached to the Government Hospital, Dindigul nor the contents of the report. The Medical Officer has specifically observed that the petitioner is having average intellectual capacity and his P.I.Q is of 97 with extroverted personality type and there is no features of major psychopathology at that time. Moreover, the Courts below have also taken into account the report given by the Counsellor attached to the District Children Welfare Officer, Dindigul. The petitioner has not denied his interaction with the Counsellor attached to the District Child Welfare Office. Moreover, the petitioner's side has not attributed any malafide against the Medical Officer and the Counsellor to challenge the veracity of their reports. https://www.mhc.tn.gov.in/judis 11/14 CRL.R.C.(MD).No.135 of 2021
13. On considering the facts and circumstances of the case and the orders of the Courts below, this Court does not find any illegality or perversity in the order of the learned Sessions Judge, confirming the orders passed by the Juvenile Justice Board. The legality of the order passed by the Juvenile Justice Board has been duly assessed by the Sessions Court in the right perspective. Since the petitioner has been assessed to be a person, who understands the act done by him and the consequences of the act and as such, the Board has rightly ordered the petitioner to be tried as an adult. Considering the above, this Court concludes that the Criminal Revision Case is absolutely devoid of merits and the same is liable to be dismissed.
14. In the result, the Criminal Revision Case is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed.
18.08.2022.
Index : Yes/No
Internet : Yes/No
SSL
NOTE: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. https://www.mhc.tn.gov.in/judis 12/14 CRL.R.C.(MD).No.135 of 2021 To
1. The Court of Fast Track Mahila Judge, Dindigul.
2. The Principal Judicial Magistrate Court, Juvenile Justice Board, Dindigul.
3. The Inspector of Police, Kodaikanal Police Station, Dindigul District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
5.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 13/14 CRL.R.C.(MD).No.135 of 2021 K.MURALI SHANKAR, J.
SSL PRE-DELIVERY ORDER MADE IN CRL.R.C.(MD).No.135 of 2021 18.08.2022 https://www.mhc.tn.gov.in/judis 14/14