Allowed

Mrs Manasa Rajan v. State of Karnataka by Marathalli P S

Karnataka HC15 Nov 2023CRL.RP/1243/2023

Case brief

AI extract

What is this about?

High Court allowed a revision petition setting aside a JJB order that wrongly continued proceedings after a prior order required transfer to children's court. The Court held that a dissenting JJB member who rejoined later without quorum improperly nullified the earlier order directing adult trial.

What did the court decide?

Impugned order dated 10.04.2023 set aside; JJB directed to transmit records to children's court for trial as adult.

Mrs Manasa Rajan Vs State of Karnataka by… — Child Sexual Offences (POCSO) | Karnataka HC (2023)

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NC: 2023:KHC:40647 CRL.RP No. 1243 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO.1243 OF 2023

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BETWEEN:

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MRS. MANASA RAJAN W/O SATHYAN RAJAN AGED ABOUT 41 YEARS R/O VILLA EE45, DIVYASHREE 77 EAST YEMALUR MAIN ROAD BENGALURU - 560 037

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…PETITIONER

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(BY SRI. M.S.SHYAM SUNDAR, SENIOR COUNSEL FOR SMT. VANDANA P L, ADVOCATE)

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AND:

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Digitally signed by MADHURI S Location: High Court of Karnataka

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STATE OF KARNATAKA BY MARATHALLI P S REPRESENTED BY HCGP HIGH COURT OF KARNATAKA BENGALURU - 560 001

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CHILD-IN-CONFLICT WITH LAW REP BY HIS MOTHER

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…RESPONDENTS

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(BY SRI. CHANNAPPA ERAPPA, HCGP FOR R1/STATE SRI.P.P.HEGDE, SENIOR COUNSEL FOR SMT.MONISHA N.S, ADVOCATE FOR R2)

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Deleted vide Court order dated 28.11.2023

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NC: 2023:KHC:40647 CRL.RP No. 1243 of 2023

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THIS CRL.RP IS FILED UNDER SECTION 102 OF JUVENILE JUSTICE ACT, 2015 PRAYING TO a) SET ASIDE THE ORDER PASSED DATED 10.04.2023 PASSED ON THE APPLICATION FILED BY THE VICTIM UNDER SECTION 19 OF THE JJ ACT IN J.C.NO.16/2022 PENDING BEFORE PRINCIPAL MAGISTRATE AND MEMBERS, PENDING ON THE FILE OF PRL. MAGISTRATE AND MEMBER, PENDING ON THE FILE OF THE ADDITIONAL JJB, BENGALURU (VIDE ANNEXURE A TO THE PETITION); b) ALLOW THE APPLICATION FILED BY THE PETITIONER AND TERMINATE THE PROCEEDINGS PENDING BEFORE THE JJB BOARD AND CONSEQUENTLY THE MATTER BE COMMITTED/TRANSFER TO THE CHILD FRIENDLY COURT FOR THE TRIAL IN ACCORDANCE WITH LAW AND MORE PARTICULARLY THE CCL TO BE TRIED AS AN ADULT FOR THE ALLEGED OFFENCE (VIDE ANNEXURE D TO THE PETITION) AND c) PASS SUCH OTHER ORDERS AS THE HON'BLE COURT DEEMS FIT UNDER THE CIRCUMSTANCES OF THE CASE TO MEET THE ENDS OF JUSTICE.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Petitioner, who is the de-facto complainant before the

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Juvenile Justice Board is before this Court in a petition filed under Section 102 of Juvenile Justice Act, 2015 (‘JJ Act’ for short ), with a prayer to set aside the order dated 10.04.2023, passed on the application filed by the victim under Section 19 of JJ Act in J.C.No.16/2022 pending before the Prl.Magistrate and Member on the file Addl.Juvenile Justice Board (hereinafter referred to as

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‘JJB’), Bengaluru. The petitioner has sought for termination of proceedings before the JJB and transfer the case to children's Court in accordance with law, with a direction to try the Respondent No.2 i.e. child in conflict with law (CCL for short) as an adult.

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For the sake of convenience, the parties are referred to by their rank before the JJB.

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3. It is contended by the de-facto complainant that

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she is the mother of victim. She filed a complaint dated 03.11.2021 and based on it, case was registered in Cr.No.239/2021 for the offences punishable under Sections 376(i), 342 I.P.C and Sections 4, 5, 6, 7 and 8 of POCSO Act against the CCL. It is alleged that on 02.11.2021, a Deepavali party was organised in the residential community at 8:40 p.m. Complainant and her daughter i.e the victim attended the party at around 8:40 p.m and left with their respective groups. The victim was seen leaving with her friend Vedika and her friend, the

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CCL. Complainant spoke to the victim in between 9.30 to 10 p.m and asked her to eat some meal. Around 10:30 p.m, when complainant called the victim she did not receive the call and complainant thought that since the music was loud the victim was not able to hear and did not worry. However, at 11:30 p.m, complainant left the party and started calling the victim. After making 20 to 30 calls, being worried she started looking for the victim. The security guard informed the complainant that he has seen the victim and CCL. After a while, complainant received information that the victim is heading towards their house.

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3.1 When complainant reached house, she found the victim at their doorsteps in an unstable condition. She was aggressive with a neighbour, who was trying to help her. Victim was screaming and pushing everyone repeatedly saying "don't rape me, leave me". Complainant took the victim inside the house and noticed that she was drugged, her eyes unfocused, pupil dilated, clothes fully wet. Her sandals, jewellery and underwear were missing.

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She was screaming and constantly trying to escape and was not able to recognize the complainant. Complainant called the mother of CCL and she informed that Victim’s phone, jewellery, sandals and underwear are found in their house. On the next day when the victim woke up, she had little memory. She could not recall how she was drugged. However, she distinctly remembered trying to fight off, pushing saying no to CCL repeatedly, while he was grabbing her and trying to overpower her.

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In respect of the said incident, complainant lodged the complaint and based on it, case is registered against the CCL and investigation is taken up. CCL was arrested and produced before the JJB. He was granted bail on 09.11.2021. Preliminary assessment of psychological and mental health of CCL was conducted and Preliminary Assessment Report (PAR) and Social Investigation Report (SIR) was filed before the JJB on 09.02.2022 and 19.02.2022 respectively.

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On 05.04.2022, after hearing both sides, the

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Judicial Member i.e, Prl. Magistrate and another member passed order on PA report and the learned Judicial Member ruled that CCL is to be tried as an adult by the children's Court. However, the other member of the board gave dissenting view and noted in the orders sheet that he/she would pass a detailed order on the next date of hearing. However, on the next date of hearing i.e on 12.04.202, instead of the Non-judicial Member present on 05.04.2022 alone passing dissenting order, one more Non-judicial Member who was absent on 05.04.2022 joined him/her and passed a joint Order ruling that the CCL be tried as Juvenile.

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Therefore, the learned counsel for victim filed

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an application under Section 19 of JJ Act, with a prayer to terminate the proceedings and to transfer the case to children's Court as per order dated 05.04.2022. The said application came to be rejected that on 10.04.2023 vide

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the impugned order, which is being challenged in the

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present Revision Petition on the following amongst other:

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GROUNDS

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From the perusal of the order sheet, it is clear that the arguments on PAR and SIR was heard by the quorum of two Members i.e the Hon’ble Judicial Member/Prl. Magistrate and another Member. Accordingly, on 05.04.2022, the Judicial Member was pleased to pass an order holding that the CCL is to be tried as an adult before the children's Court. However, the other member of the Board who was present on 05.04.2022 has made a note, expressing dissent in view and that a detailed order would be passed on the next date of hearing. The matter was adjourned to 12.04.2022.

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In fact, on 12.04.2022, the Member at whose instance matter was adjourned passed a detailed order expressing that the CCL be tried as a Juvenile before the JJB itself. However, one more Non-judicial Member who

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was not present on 05.04.2022 had also joined the other

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Member and signed the order passed on 12.04.2022.

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By virtue of Section 7 (4) of JJ Act, if the quoram is equal and the opinion differs, the view taken by the Judicial Member prevails. Therefore, as per the order passed by the Judicial Member on 05.04.2022, the proceedings deserves to be transferred to the children's Court and the CCL to be tried as an adult.

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JJ Act and POCSO Act are sensitive legislations and there cannot be relaxed or casual procedures and everything must strictly go by the mandates of law. Therefore, the proceedings before the JJB deserves to be terminated and matter must be made over to the children's Court for trying CCL as an adult.

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Being aggrieved by the continuation of proceedings before the JJB, the victim filed an application under Section 19, with a prayer to terminate the proceedings before it and transfer the matter to children's

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Court. In fact objections were filed on behalf of CCL. The order is passed on the said application on 10.04.2023, dismissing the application on the premise that the two Non-judicial Members are present from the time of initiation of proceedings. However, it can be seen that the third member was present only on the date when bail order was passed. The third member was neither present during the report of PAR and SIR were submitted nor when the counsel advance their arguments and it is false to say that the third member was present throughout the proceedings. In the impugned order the JJB has opined that it has no power of review and the victim is at liberty to file an appeal or petition.

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The pending proceedings before JJB would cause serious prejudice and injustice to the victim and the same deserves to be transferred to the children's Court and the CCL be tried as an adult. No other alternative or efficacious remedy is available to the petitioner and hence the petition.

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Respondent No.2/CCL has appeared through Senior counsel and contested the matter supporting the impugned order. The main line of arguments advanced on behalf of CCL is that if at all the victim/de-facto complainant is aggrieved by the impugned order the remedy available to them is to file an appeal and as such revision is not maintainable and sought for dismissal of the petition.

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Heard arguments of both sides and perused on record.

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It is an undisputed fact that as on the date of incident, the CCL had completed 16 years. The allegations against him are punishable under Sections 376(i), 342 IPC and Sections 4 to 8 of POCSO Act. As per Section 2(33), heinous offence includes the offences for which the minimum punishment under the IPC or any other law for the time being in force is imprisonment for seven years or more. Thus, the allegations made against the accused

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come under the category of heinous offences. As per Section 15 of JJ Act, where the offence alleged is a heinous offence and the child in conflict with law has completed or is above the age of 16 years, the board is required to conduct a preliminary assessment with regard to his mental and physical capacity to commit such heinous offence, ability to understand the consequences of the offence and may pass an order in accordance with Section 18(3) of the JJ Act. For such assessment, the Board may take the assistance of experienced Psychologist or Psychosocial workers or other experts.

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As evident from the order dated 05.04.2022, in fact, in the present case, the JJB has taken the assistance of a Psychologist and based on the report submitted by NIMHANS, has passed orders on 05.04.2022, holding that the CCL is able to understand the nature of the offences alleged and having regard to the fact that as on the date of alleged offence, he had completed 16 years of age, he shall be tried as an adult and directed the office to submit

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the entire records to the children's Court. It is relevant to note that on 05.04.2022, the quoram consists of two Members i.e the Prl. Magistrate and a Non-judicial Member. The third member of the Board was absent on 05.04.2022. The Non-judicial Member has expressed dissenting opinion and endorsed in the order sheet that he/she would pass a detailed order on the next date of hearing.

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As per Section 7(4) of JJ Act, in the event of any difference of opinion among the members of the Board, in the interim or final disposal, the opinion of the majority shall prevail, but where there is no such majority, the opinion of Prl. Magistrate shall prevail. In the light of this provision, having regard to the fact that on 05.04.2022 only two members, including the Prl. Magistrate were present, the opinion of the Prl. Magistrate shall prevail, despite the fact that the Non-judicial Member dissented and expressed his/her intention of passing a detailed order on the next date of hearing. For this reason

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NC: 2023:KHC:40647 CRL.RP No. 1243 of 2023

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only, on 05.04.2022 itself, despite the Non-judicial member expressing dissenting opinion, the learned Prl. Magistrate has directed the office to send the entire records to the children's Court, Bengaluru.

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However, on the next date of hearing i.e on 12.04.2022, in addition to the Non-judicial Member who was present on 05.04.2022, the third member has joined hands in expressing the dissenting opinion and thereby projecting as though it is the majority opinion. From the order dated 12.04.2022, it is evident that on that day, quoram consist of two Non-judicial Members only and the Judicial Member viz, the Prl. Magistrate was absent. It appears taking advantage of this situation, despite the third member being absent on 05.04.2022, he has joined the second member in expressing the dissenting opinion on 12.04.2022 and in complete ignorance of the order dated 05.04.2022 posted the case for recording the plea to 23.05.2022. As evident from the order sheet, on 23.05.2022 also the Judicial Member i.e the Prl. Magistrate was absent and once again, the case is posted for plea to

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27.06.2022. On 27.06.2022, the learned Prl. Magistrate who has passed the order dated 05.04.2022, in complete ignorance of the very orders passed by him has recorded the plea of CCL and posted the matter for evidence by issuing summons to CWs-1 to 3.

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Pointing out the mistake committed while expressing dissenting opinion dated 12.04.2022, on 18.10.2022, the de-facto complainant has filed application under Section 19 of JJ Act and brought to the notice of the Board that vide order dated 05.04.2022, the proceedings before the JJB is terminated and requested that the Board to send the file to the children's Court for disposal in accordance with law. To this application objections are filed on behalf of the CCL. It appears by this time the learned Prl. Magistrate who passed order dated 05.04.2022 was transferred and the incumbent Judicial Member, viz., Prl Magistrate has passed the impugned order dated 10.04.2023.

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Though during the course of the said order, the learned Judicial Member, viz., Prl. Magistrate has rightly held that on 05.04.2022, the Judicial Member and one Non-judicial Members were present and despite the dissenting opinion expressed by the Non-judicial Member, the order passed by the Prl. Magistrate prevail, he/she has chosen to dismiss the application only on the ground that appeal is provided and the de-facto complainant is at liberty to file appeal under Section 101 (2) of JJ Act.

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Despite being aware of the mistake committed by the Board based on the opinion dated 12.04.2022, the learned Prl. Magistrate has not chosen to correct the mistake. If these types of orders are allowed to be passed by the Non-judicial Members, the very object of Section 7(4) of JJ Act would be defeated by the other two Nonjudicial Members on any order passed by a quoram consisting of a Non-judicial and Judicial Member (Prl. Magistrate), whose opinion would prevail over the opinion of the Non-judicial member. Moreover, on 05.04.2022,

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when already a binding order was passed by the Prl. Magistrate, whose opinion prevailed over the Non-judicial Member, the third member was not at liberty to join the second member in expressing his/her dissenting opinion. The learned Prl. Magistrate ought to have observed this fact and stick to the order dated 05.04.2022. Even after the mistake committed at the instance of third member and thereby derailing the proceedings was brought to the notice of learned Prl. Magistrate, instead of correcting the mistake, he has swayed away by the arguments on behalf

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of the CCL and misdirected himself in rejecting the application filed on behalf of the de-facto complainant on the ground that she may file appeal.

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So far as the appeal under Section 101(2) JJ Act is concerned, it is required to be filed by a person who is aggrieved by the order of the Board under Section 15 of the Act. In the present case, the de-facto complainant is not aggrieved by the order dated 05.04.2022. In fact, it is an order favouring the victim as well as the de-facto

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complainant. On the other hand it is the CCL who is aggrieved by the said order, who ought to have filed the appeal. Only on account of mistake committed by the Nonjudicial members, more particularly the third member in joining the second member in expressing the opinion dated 12.04.2022, the proceedings were derailed and the prevailing opinion of the Prl. Magistrate is nullified. In that way, the CCL is favoured in continuing the proceedings before the JJB.

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Despite the illegality committed by the two Nonjudicial Members was brought to the knowledge of the incumbent Prl. Magistrate, he has not chosen to correct the mistake. On the other hand on technicality, he has chosen to reject the application filed by the de-facto complainant. Despite becoming aware of the prevailing opinion expressed by the then Prl. Magistrate vide order dated 05.04.2022 and passed the impugned order.

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As rightly argued by the learned Senior counsel representing the de-facto complainant under Section 102 of JJ Act, this Court is having jurisdiction not only to examine the legality, but also propriety of any order passed by the Committee or Board or children's Court or Court. In the present case, the propriety of third member who was not present on 05.04.2022 in joining and passing order on 12.04.2022 is in issue. When the third member was not part of the quorum on 05.04.2022, he/she ought not have joined the second member in expressing the dissenting opinion on 12.04.2022, and thereby projecting as though it is a majority opinion and throwing away the prevailing opinion of the Prl. Magistrate in his order dated 05.04.2022. The order dated 05.04.2022 had attained finality so far as Board is concerned. Only the detailed dissenting opinion was required to be given by the second member. On 12.04.2022, the third member had no role to play in the decision taken on 05.04.2022. This conduct of the third member in joining the second member and

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thereby derailing the prevailing order passed by the Prl. Magistrate is deprecated.

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One more point observed by this Court is that while signing the order sheet and also orders, the names of the Judicial Member as well as Non-judicial Members are not noted below their signatures. This is coming in the way of anyone knowing the names of the members who were present and who were absent. Therefore, only on the basis of signatures, this Court was able to distinguish as to who was the Non-judicial Member present on 05.04.2022 and who was the third member who joined in expressing dissenting opinion on 12.04.2022. This Court is of the considered opinion that it would be appropriate to mention the names of the members below their signatures, which would also help the transparency in conduct of the said proceedings and put the members on guard about their roles played in the said proceedings.

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In the result, the petition succeeds and accordingly the following:

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NC: 2023:KHC:40647 CRL.RP No. 1243 of 2023

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ORDER

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(i) Petition filed under Section 102 of JJ Act is allowed.

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(ii) The impugned order dated 10.04.2023 passed on the application filed by the victim under Section 19 of the JJ Act in JC No.16/2022, on the file of Prl. Magistrate and Member, additional JJP, Bengaluru is set aside.

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(iii) As per order dated 05.04.2022, the JJB is directed to transmit the entire records to the children's Court, with a direction to the parties to appear before the children's Court and matter be proceeded before the children's Court in accordance with law.

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(iv) The Registry is directed to send a copy of this order to JJB, forthwith.

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Sd/JUDGE

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List No.: 1 Sl No.: 33

Mrs Manasa Rajan v. State of Karnataka by Marathalli P S

Case brief

What is this about?

What did the court decide?

Mrs Manasa Rajan v. State of Karnataka by Marathalli P S

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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