X Vs State of Chhattisgarh

[Arising out of judgment dated 23.11.2022 passed in SCC POCSO No.02/2021 by the Additional Sessions Judge (FTC)/Children’s Court, Durg, District Durg, Chhattisgarh.]

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 X

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... Appellant

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versus

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State of Chhattisgarh, Police Station Utai, District Durg, Chhattisgarh.

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... Respondent

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For Appellant :- Mr. Deepak Kumar Jain, Advocate. For Respondent-State :- Mr. Rahul Tamaskar, Government Advocate & Mr. Amit Buxy, Panel Lawyer.

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Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board

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26/06/2025

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The appellant herein – Child in Conflict with

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Law (for short, “the CCL”) was found to have committed the offences under Section 376(2)

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(i) of the IPC and under Section 4, 5(m) & 6 of the POCSO Act on 30.11.2019, however he

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has been convicted for offence under Section 6 of the POCSO Act and sentenced therein to undergo rigorous imprisonment for 10 years with fine of 2,000/-; in default of payment₹ of fine amount he has to undergo additional imprisonment for four months as the same is heinous offence as defined in Section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for brevity “the Act

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of 2015”) vide impugned judgment dated 23.11.2022 passed by the Children’s Court, Durg, District Durg, Chhattisgarh.

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Prosecution story:-

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The CCL was juvenile, he was charge-sheeted before the jurisdictional Juvenile Justice Board (for short “the JJB”) for offences under Section 376 of the IPC and under Sections 4, 5(m) and 6 of the POCSO Act. The

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JJB finding him more than 16 years and less

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than 18 years of age proceeded to hold preliminary assessment under Section 15(1) of the Act of 2015 and directed for report of Psychologist Dr. K.C. Bhagat, with regard to mental and physical capacity of CCL to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed

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the offence. The said report of the Psychologist was received on 26.12.2020 to

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the JJB and it appears from the record that the copy of the said report was not served to the CCL or his counsel and straightway on the

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same day i.e. 26.12.2020, the JJB had

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preliminarily assessed the case of the CCL

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and passed order under Section 18(3) of the

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Act of 2015 and transferring the case to the Children’s Court having jurisdiction to try

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the offences i.e. the Children’s Court, Durg constituted under the provisions of the

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Commissions for Protection of Child Rights Act, 2005.

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The Children’s Court, Durg after receipt of case from the JJB and the preliminary inquiry report conducted under Section 15(1) of the Act, 2015, on 06.01.2021 directed for appearance of CCL on 08.01.2021 and on 02.02.2021 held that the CCL has committed heinous offence and did not make any further inquiry as envisaged under Section 19(1) of the Act of 2015 and held that there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 and after trial, passed the impugned judgment and convicted the CCL for offence under Section 6 of the POCSO Act and sentenced him to undergo rigorous imprisonment for 10 years with fine of ₹ 2,000/-; in default of payment of fine amount to undergo additional imprisonment for four months.

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Feeling aggrieved against the judgment of conviction and order of sentence, the CCL i.e. the present appellant has preferred this appeal under Section 374(2) of the CrPC calling in question legality, validity and correctness of the same.

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Submission of the parties:-

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Mr. Deepak Kumar Jain, learned counsel for

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the appellant, would submit that neither the JJB conducted the inquiry in accordance with Section 15 of the Act of 2015 read with Rules 10 and 10A of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (for short “the Rules of 2016”) nor the Children’s Court conducted any further inquiry under Section 19(1)(i) of the Act of 2015 read with Rule 13 of the Rules of 2016 and, therefore, the entire trial deserves to be quashed and the appellant is entitled for acquittal.

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Mr. Rahul Tamaskar & Mr. Amit Buxy, learned

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State counsels, would submit that the

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preliminary assessment was conducted under Section 15(1) of the Act of 2015 and the report of Psychologist was called by the JJB, thereafter, the order under Section 18(3) of

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the Act of 2015 was passed and the case was transferred to the Children’s Court having jurisdiction. Though, Children’s Court, Durg, did not make any further inquiry as required under Section 19(1) of the Act of 2015, but

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the appellant herein has not suffered any prejudice, therefore, the impugned judgment of conviction and order of sentence deserves to be maintained and the present appeal deserves to be dismissed.

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I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records meticulously.

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Discussion & Analysis:-

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Admittedly, the date of offence is 30.11.2019 and the appellant herein/CCL was produced before the JJB on 07.02.2020. As per dakhil kharij register (Ex.P/31C) the date of birth of the appellant herein/CCL is 16.01.2003, therefore, on the date of offence, the CCL was aged about more than 16 years and less than 18 years and the minimum sentence for offence under Section 6 of the POCSO Act is 20 years w.e.f. 16.08.2019, therefore the said offence is a heinous offence. The JJB

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was required to conduct an inquiry as per Section 15(1) of the Act of 2015 read with Rules 10 & 10A of the Rules of 2016. However, it appears from the record of the JJB that only the report of the Psychologist was called, which was received by the JJB on 26.12.2020 and on the same day, the order of transferring the case to the Children’s Court having jurisdiction, under Section 18(3) of

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the Act of 2015 was passed without serving the copy of the report to the appellant herein/CCL which ought to have been served and reasonable opportunity to respond to the Psychologist report ought to have been granted to the appellant herein/CCL, but both procedures have not been followed.

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In this regard, the decision of the Supreme

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Court in Barun Chandra Thakur v. Master Bholu and another1, may be noticed herein profitably in which their Lordships have considered the manner and procedure of conducting inquiry by the Board, whether the child in conflict with law is to be tried as an adult by the Children's’ Court or by the Board itself, treating him to be a child and it has been held that if the child in conflict with law is tried as an adult by the Children’s Court, it involves consequences of serious nature and having a lasting effect

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1 (2023) 12 SCC 401

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for the entire life of the child, and it has serious civil consequences, therefore, reasonable opportunity must be afforded. It has been observed as under: -

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“ Effect of an order of preliminary assessment

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47. The order of preliminary assessment decides whether the child in conflict with law, falling in the age bracket of 16-18 years and having committed heinous offence, is to be tried as an adult by the Children's Court or by the Board itself, treating him to be a child. There are two major consequences provided in the 2015 Act, if the child is tried as an adult by the Children's Court. First, that the sentence or the punishment can go up to life imprisonment if the child is tried as an adult by the Children's Court, whereas if the child is tried by the Board as a child, the maximum sentence that can be awarded is 3 years. The second major consequence is that where the child is tried as a child by the Board, then under Section 24(1), he would not suffer any disqualification attached to the conviction of an offence, whereas the said removal of disqualification would not be available to a child who is tried as an adult by the Children's Court, as per the proviso to Section 24(1). Another consequence, which may also have serious repercussions, is that as per Section 24(2), where the Board or the Children's

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Court, after the case is over, may direct the police or the registry that relevant records of such conviction may be destroyed after the period of expiry of appeal or a reasonable period as may be prescribed. Whereas, when a child is tried as an adult, the relevant records shall be retained by the relevant Court, as per the proviso to Section 24(2).

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48. These consequences are serious in nature and have a lasting effect for the entire life of the child. It is well settled that any order that has serious civil consequences, reasonable opportunity must be afforded. The question is of what would be a reasonable opportunity in a case where a preliminary assessment is to be made by the Board under Section 15.”

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Thereafter, their Lordships dealt with the question as to what would be a reasonable opportunity in a case where a preliminary assessment would be made by the Board under Section 15 of the Act of 2015 and it is held

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that the expression “may” in the proviso to Section 15(1) and the requirement of taking assistance of experienced physiologists or

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psycho-social workers or other experts would operate as mandatory unless the Board itself

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comprises of at least one member who is a practising professional with a degree in child psychology or child psychiatry. It has been observed by their Lordships as under: -

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“83. Therefore, looking to the purpose of the 2015 Act and its legislative intent, particularly to ensure the protection of best interest of the child, the expression “may” in the proviso to Section 15(1) thereof and the requirement of taking assistance of experienced psychologists or psycho-social workers or other experts would operate as mandatory unless the Board itself comprises of at least one member who is a practising professional with a degree in child psychology or child psychiatry. Moreover, in case the Board, in view of its own composition with at least one member, who is a practising professional with a degree in child psychology or child psychiatry, chooses not to take such assistance, it would record specific reasons therefor.

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Conclusion

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85. We are conscious of the fact that the power to make the preliminary assessment is vested in the Board and also the Children's Court under Sections 15 and 19 respectively. The Children's Court, on its own, upon a matter being referred to under Section 18(3), would still examine whether the child is to be tried as an adult or not, and if it would come to the conclusion that the child was not to be

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tried as an adult then it would itself conduct an inquiry as a Board and pass appropriate orders under Section 18. Thus, the power to carry out the preliminary assessment rests with the Board and the Children's Court. This Court cannot delve upon the exercise of preliminary assessment. This Court will only examine as to whether the preliminary assessment has been carried out as required under law or not. Even the High Court, exercising revisionary power under Section 102, would test the decision of the Board or the Children's Court with respect to its legality or propriety only. In the present case, the High Court has, after considering limited material on record, arrived at a conclusion that the matter required reconsideration and for which, it has remanded the matter to the Board with further directions to take additional evidence and also to afford adequate opportunity to the child before taking a fresh decision.”

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The procedure prescribed in Rule 10(5) of

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the Rules of 2016 has not been followed in the present case which provides that in the cases of heinous offences alleged to have been committed by a child, who has completed

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the age of sixteen years, the Child Welfare Police Officer shall produce the statement of

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witnesses recorded recorded by him and other documents prepared during the course of investigation within a period of one month from the date of first production of the child before the Board and a copy of which

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shall also be given to the child or parent or guardian of the child. Also Rule 10(9) of the Rules of 2016 has not been followed in the

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present case which provides that the Board

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shall take into account the report containing circumstances of apprehending the child and

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the offence alleged to have been committed by

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him and the social investigation report in Form 6 prepared by the Probation Officer or the voluntary or non-governmental

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organisation, along with the evidence

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produced by the parties for arriving at a conclusion and the JJB has simply passed

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order transferring the case to the jurisdictional Children’s Court under Section 18(3) of the Act of 2015 which is a flagrant

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violation of the provisions contained in the Act of 2015 read with Rules of 2016 as well

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as the principles of law laid down by their Lordships of the Supreme Court in the matter of Barun Chandra Thakur (supra).

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Not only this, in the instant case, there

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is also total non-compliance of Section 19(1) of the Act of 2015. The Supreme Court in the matter of Ajeet Gurjar v. State of Madhya Pradesh2 has held that the procedure

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prescribed under Sections 15 and 19(1) of the Act of 2015 are mandatory in nature and observed as under:-

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“ 9. There are two parts to sub-section (1) of Section 19. The first part requires the Children's Court to decide whether there is a need for trial of the child as an adult as per the provisions of the Criminal Procedure Code, 1973. If the Court is satisfied that the child needs to be tried as an adult as per the provisions of CrPC, the Children's Court can proceed with the trial and thereafter pass an appropriate order subject to the provisions of Sections 19 and 21 of the JJ Act.

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2 (2023) 15 SCC 678

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10. Clause ( ii ) of sub-section (1) of Section 19 is very crucial which indicates that though the word “may” have been used in the opening part of sub-section (1) of Section 19, the same will have to be read as “shall”. Clause ( ii ) provides that after examining whether there is a need for a trial of the child as an adult, if the Children's Court comes to the conclusion that there is no need for the trial of the child as an adult, instead of sending back the matter to the Board, the Court itself is empowered to conduct an inquiry and pass appropriate orders in accordance with provisions of Section 18 of the JJ Act. The trial of a child as an adult and his trial as a juvenile by the Juvenile Justice Board has different consequences.

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11. Therefore, 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

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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.

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12. The observation of the High Court that the order passed under sub-section (3) of Section 18 has attained finality completely ignores that the order under sub-section (3) of Section 18 is not a final adjudication on the question of

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trying the child as an adult. The reason is that the order under subsection (3) of Section 18 is based on a preliminary assessment made under Section 15. As such order is based only on a preliminary assessment, the law provides for a further inquiry in terms of sub-section (1) of Section 19 by the competent Children's Court. Hence, the Children's Court cannot brush aside the requirement of holding an inquiry under clause (i) of subsection (1) of Section 19.”

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Coming to the facts of the present case, it

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appears from the records that on reciept of the case from the JJB, the Children’s Court only relied upon the preliminary assessment report submitted by the JJB and did not take pain to conduct further inquiry as mandated under Section 19(1) of the Act of 2015 read with Rule 13 of the Rules of 2016 as directed by their Lordships of the Supreme Court in the matter of Ajeet Gurjar (supra) and passed order under Section 19(1) of the Act of 2015 on 02.02.2021 and further on that day, the charges were framed against the appellant holding that there is a need for trial of the

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child as an adult as per the provisions of the Code of Criminal Procedure, 1973.

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However, the copy of the preliminary inquiry was not supplied to the CCL and no reasonable opportunity of hearing was afforded to his counsel to make submission on the preliminary inquiry report. As such, the order of the Children’s Court passed under Section 19(1) of the Act of 2015 on 02.02.2021 is totally contrary and violation of provisions contained under Section 19(1) of the Act of 2015 read with Rules 13(1) & 13 (6) of the Rules of 2016. The provisions contained under Section 19(1) of the Act of 2015 as well as the Rules 13(1) and 13(6) deserve to be noticed herein:-

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Section 19 of the Act of 2015:-

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“ 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—

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(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 astrosphere;

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(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.”

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Rule 13 of the Rules of 2016:-

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“13.	Procedure in relation to
Chil	dren’s Court and Monitoring
Auth prel the ther	orities.—(1) Upon receipt of iminarily assessment from the Board Children’s Court may decide whether e is need for trial of the child as
an appr (2)	adult or as a child and pass opriate orders. xxx xxx xxx
(3)	xxx xxx xxx
(4)	xxx xxx xxx
(5)	xxx xxx xxx
(6)	The Children’s Court shall record
its	reasons while arriving at a
conc	lusion whether the child is to be
trea	ted as an adult or as a child.

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In view of the aforesaid discussion and analysis, it is quite vivid that there is complete violation of Section 15(1) of the Act of 2015 read with Rules 10 & 10(A) of the Rules of 2016 as well as Section 19(1) of the Act of 2015 read with Rules 13(1) and 13(6) of the Rules of 2016 which is held to be mandatory in light of the decisions of the Supreme Court in the matters of Barun Chandra Thakur (supra) and Ajeet Gurjar (supra) and which has further been reiterated in the matter of Thirumoorthy v. State, represented

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3 by the Inspector of Police .

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Now, ordinarily this Court could have remanded the matter to the JJB for conducting the inquiry afresh in accordance with Section 15(1) of the Act of 2015 read with Rules 10 & 10A of the Rules of 2016, however, considering the fact that the date of incident is 30.11.2019 and the date of birth

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3 2024 SCC OnLine Sc 375

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of CCL is 16.01.2003 vide Ex.P/31C and as on

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today the appellant herein/CCL is aged about

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more than 22 years and, as such, there is no possibility of finding out the mental and physical capacity of the accused/appellant to commit the offence or to assess his ability to understand the consequences of the offence and circumstances in which he allegedly committed the offence on 30.11.2019, this

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Court is of the considered opinion that it is not a case where the matter be remitted to

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JBB or the Children’s Court for fresh

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assessment in accordance with Sections 15(1)

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and 19(1) of the Act of 2015. Since the proceedings right from the stage of the JJB to that of Children’s Court have not been conducted in accordance with the Act of 2015

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and the Rules of 2016 and also the principles of law laid down by their Lordships of the Supreme Court in the matters of Barun Chandra Thakur (supra), Ajeet Gurjar (supra) and

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Thirumoorthy (supra) have not been followed and even the clock cannot be reversed to examine the mental and physical capacity of the appellant on the date of incident, the entire trial stands vitiated as having been undertaken in gross violation of the mandatory requirements of the Act of 2015.

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Conclusion:-

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In view of the above, I am left with no option, but to quash and set aside the impugned judgment dated 23.11.2022 passed by the Children’s Court, Durg. The appellant herein, who is in jail since 01.12.2019, thereby completed more than 5 years, shall be released forthwith, if not required any other case.

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