REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2024

(Arising out of SLP(Crl.) No(s). 1936 of 2023)

THIRUMOORTHY ….APPELLANT(S)

VERSUS

STATE REPRESENTED BY
THE INSPECTOR OF POLICE …RESPONDENT(S)

JUDGMENT

Mehta, J.

1. Leave granted.

2. This appeal takes exception to the judgment dated 15th April,

2021, passed by the learned Single Judge of the High Court of

Judicature at Madras dismissing the criminal appeal filed by the

appellant herein under Section 374(2) of the Code of Criminal

Procedure, 1973 (hereinafter being referred to as ‘CrPC’) and

affirming the conviction of the appellant and sentences awarded to

him vide judgment and order dated 18th February, 2019, passed
Signature Not Verified

by the Court of Sessions Judge, Mahila Court, Salem (hereinafter

Digitally signed by
Deepak Singh
Date: 2024.03.22
18:08:11 IST
Reason:

being referred to as the ‘trial Court’) in Special Sessions Case No.

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79 of 2016. By the said judgment and order, learned trial Court

convicted and sentenced the appellant as below: -

Provision under Sentence

which convicted
Section 363 IPC Sentenced to undergo 07 years
rigorous imprisonment.
Section 342 IPC Sentenced to undergo 01 years
rigorous imprisonment.
Section 6 POCSO Act Sentenced to undergo 10 years
rigorous imprisonment.
Section 302 IPC Sentenced to undergo 10 years
rigorous imprisonment.
Section 201 read with 302 Sentenced to undergo 07 years
IPC rigorous imprisonment.

3. The trial Court in para 96 of its judgment held as under: -

“96. Accused is now 19 years 2 months old. Therefore, according

to Section 20 Juvenile Justice (Care and Protection of Children
Act), Juvenile in conflict with law shall be kept in a safe place in
Chengalpattu Juvenile Reform School till the age of 21 years.
After that, the Probation Officer should evaluate the reformation
of the said child and send a periodic report about it to this Court.
After the completion of 21 years, the said child shall be produced
in this Court and after evaluating whether the child has reformed,
became a child who can contribute to the society, the remaining
sentence may be reduced and released, or if the child is not
reformed, the remaining sentence should be spent in jail after the
child reaches the age of 21, considering the report of the Probation
Officer and the progress records. The decision will be based on
the discipline that the child has achieved and his behaviour.”

4. Brief facts relevant and essential for disposal of the instant

appeal are noted hereinbelow.

5. The victim Ms. D, being the daughter of the first informant-

Mr. G(PW-1) aged 6 years went missing in the evening of 2nd July,

2016. Mr. G (PW-1) lodged a complaint at P.S. Kolathur, District

2
Salem on 3rd July, 2016 at 7 ‘o clock in the morning alleging, inter

alia that he had taken his daughter(victim) to a shop on the

previous evening at around 6 o’ clock and from there, he asked the

child to return home. However, when he reached his house half

an hour later and made an inquiry from his wife, he was told that

the child had not returned by then. A search was made in the

locality but the child could not be traced out. Based on the said

complaint, Crime No. 174 of 2016 was registered and investigation

was undertaken by S. Viswanathan, Inspector of Police (PW-25).

6. The Investigating Officer (PW-25) recorded the statements of

Mylaswamy (PW-10) and Irusappan (PW-11) who stated that they

had seen the accused going into the compound of his house with

the child victim being the daughter of the first informant-Mr. G

(PW-1). On this, the needle of suspicion pointed towards the

accused-appellant who was apprehended from his house by the

Investigating Officer (PW-25) while he was trying to run away. The

accused was interrogated in presence of Mr. Arivazhagan, Village

Administrative Officer (PW-15) and his assistant Muthappan.

7. It is alleged that the accused confessed to his guilt and his

admission was recorded in memo (Ex. P-20) and acting in

furtherance thereof, the dead body of Ms. D was found concealed

3
in a wide-mouthed aluminium vessel lying in the prayer room of

the house of the accused. The requisite spot inspection

proceedings were undertaken and the dead body of the child victim

was sent to the Salem Government Mohan Kumaramangalam

Medical College Hospital for conducting post mortem. The post

mortem report (Ex. P-7) and final opinion of Doctor (Ex. P-8) were

received indicating that the death of the victim was homicidal in

nature having being caused by asphyxiation due to compression

of neck along with injuries to genitalia. Some incised wounds were

also found on the body of the victim. Incriminating articles viz.,

clothes of the accused, a blade, etc. were recovered from the house

of accused.

8. Right at the inception of investigation, the Investigating

Officer(PW-25) had gathered information to the effect that the

accused was a juvenile since his date of birth recorded in school

documents is 30th May, 2000. Thus indisputably, the accused was

a Child in Conflict with Law(in short ‘CICL’) as provided under

Section 2(13) of the Juvenile Justice(Care and Protection of

Children) Act, 2015 (hereinafter being referred to as the ‘JJ Act’)

and the proceedings were required to be conducted in accordance

with the mandatory procedure prescribed under the JJ Act. Inspite

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thereof, charge sheet against the accused was filed directly before

the Sessions Court (portrayed to be a designated Children’s Court,

as per the counter affidavit filed by the State in the SLP).

9. Charges were framed against the accused who pleaded not

guilty and claimed trial. The prosecution examined 25 witnesses

and exhibited 35 documents and 10 material objects to prove its

case. The accused was questioned under Section 313(1)(b) of CrPC

and was confronted with the circumstances appearing against him

in the prosecution case. He denied the allegations levelled against

him and claimed to be innocent. However, neither oral nor

documentary evidence was led in defence. The trial Court

proceeded to convict and sentence the accused as mentioned

above, vide judgment and order dated 18th February, 2019.

10. The mother of the accused appellant filed a petition before

the Special Court, POCSO Act Cases, Salem praying that the

sentence of her son may be reduced and he may be considered for

early release in view of his good behaviour.

11. The Special Court, POCSO Act Cases, Salem held an inquiry;

conducted psychological evaluation of the accused; procured

reports from the Vellore District Social Security Department

Probation Officer and Probation Officer of Government Special

5
Home as well as the individual evaluation report of the accused

and after analysing the above reports, proceeded to dismiss the

application filed by the mother of the accused appellant vide order

dated 29th January, 2021.

12. Being aggrieved by his conviction and the sentences awarded

by the trial Court, the accused appellant preferred an appeal being

CRLA No. 451 of 2019 before the High Court of Judicature at

Madras which came to be rejected vide impugned judgment dated

15th April, 2021. Hence this appeal by special leave.

13. Ms. S. Janani, learned counsel representing the accused

appellant vehemently urged that admittedly the accused appellant

was a CICL on the date of the incident since his date of birth as

recorded in the school documents is 30th May, 2000. She

contended that the entire series of events commencing from the

arrest of the accused appellant; the manner in which the

investigation was conducted; the filing of the charge sheet in the

Sessions Court; the procedure of trial right up to the conviction

and sentencing of the accused appellant is vitiated as the

mandatory procedure provided under the JJ Act was not followed

and was rather blatantly flouted. It was submitted that the police

official who filed the charge sheet was not having the authority to

6
conduct investigation because investigation into an offence

allegedly committed by CICL has to be undertaken by the Special

Juvenile Police Unit(SJPU) constituted under Section 107(2) of the

JJ Act by the concerned State Government.

14. She urged that Section 3(1) provides for the principle of

presumption of innocence, but the said provision was totally

ignored in conducting the prosecution of the accused appellant

and hence the entire trial is vitiated.

15. It was further submitted that the Sessions Judge who

conducted trial was not designated as a Children’s Court and thus,

the trial of the accused appellant is vitiated. Without prejudice to

this submission, learned counsel submitted that even assuming

that the Sessions Court had been designated as a Children’s

Court, the accused appellant could not have been tried by the said

Court without preliminary assessment being conducted by the

Juvenile Justice Board(hereinafter being referred to as ‘Board’) as

postulated under Section 15 of the JJ Act. The section mandates

an enquiry in form of preliminary assessment to be conducted by

the Board wherein the CICL has a right to participate. Upon

conclusion of enquiry, the Board has to pass an order under

Section 18(3) to the effect that there is a need to try the child as an

7
adult and only thereafter, the Board can transfer the case to the

Children’s Court for trial. The CICL has been given a right to appeal

against such order by virtue of Section 101(2) of the JJ Act. Even

after the transfer of case under Section 15, the Children’s Court is

required to apply its own independent mind to find out whether

there is a genuine need for trial of the CICL as an adult as provided

by Section 19(1)(i) of the JJ Act. However, none of these mandatory

requirements were complied with and thus, the trial is vitiated.

16. Referring to the alleged confession of the accused appellant,

the learned counsel criticised the manner in which the

investigation was conducted and submitted that the confession

recorded in presence of the police officer could not have been

allowed to be exhibited and admitted in evidence. She submitted

that the trial Court, not only allowed the confession to be exhibited

but also placed implicit reliance upon it basing the conviction of

the accused appellant on such inadmissible piece of evidence. The

recording of confession of a CICL and placing implicit reliance

thereupon is contrary to the general principles laid out under

Section 3 of the JJ Act which provides the general principles to be

followed in the administration of the Act.

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17. It was further urged that (PW-10) and (PW-11) whose

depositions have been relied upon to constitute the circumstance

of last seen are as a matter of fact, totally unreliable witnesses.

Had these witnesses seen the child being taken away by the

accused, then their natural reaction would have been to promptly

inform the child’s father, the informant Mr. G. (PW-1) about this

important circumstance and the same would definitely have been

incorporated in the FIR which was lodged on the next day of the

incident.

18. It was also contended that the factum of recovery of the dead

body from the aluminium vessel preceded by the disclosure

statement of the accused appellant has not been proved by reliable

evidence and hence, there does not exist cogent and convincing

circumstantial evidence on the record so as to establish the guilt

of the accused appellant.

19. On these counts, learned counsel for the appellant implored

the Court to accept the appeal and set aside the impugned

judgment and sought acquittal for the accused appellant.

20. Learned counsel representing the State, vehemently and

fervently opposed the submissions advanced by the appellant’s

counsel. It was submitted that looking to the gruesome nature of

9
the crime, the entire investigation and trial cannot be held to be

vitiated simply on account of irregularity in the procedure of

conducting investigation and trial. The Sessions Court which

conducted the trial had been designated as a Children’s Court.

The trial Court as well as the High Court have given due

consideration to the fact that the accused appellant was a juvenile

on the date of commission of the crime and accordingly, the

sentence which has been awarded to the accused appellant is

commensurate with the provisions of the JJ Act. Not only this, the

trial Court undertook an exhaustive exercise for mental and

psychological assessment of the accused appellant after recording

his conviction and only after receiving an individual care plan had

quantified the sentences to be awarded to the accused which are

strictly within the framework of the JJ Act.

21. In support of his contentions, learned counsel for the State

placed reliance on judgments rendered by this Court in the cases

of Karan alias Fatiya v. State of Madhya Pradesh1 and Pawan

Kumar v. State of Uttar Pradesh & Ors2. He contended that the

1
(2023) 5 SCC 504
2
2023 SCC OnLine SC 1492
10
impugned judgment does not warrant any interference by this

Court.

22. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

judgments on record.

23. The fact regarding the accused appellant being a CICL on the

date of the incident, i.e., 2nd July, 2016 is not in dispute because

the date of birth of the accused as entered in the contemporaneous

school record is 30th May, 2000.

24. We shall thus first take up the issue whether the trial is

vitiated on the account of non-adherence to the mandatory

requirements of the JJ Act.

25. At the outset, we may note that the fact regarding the accused

appellant being juvenile and thus a CICL on the date of

commission of the incident was known to the Investigating

Officer(PW-25) right at inception of the proceedings. The

Investigating Officer(PW-25) categorically stated in his deposition

that after completing the investigation and preparing the final

report against the “juvenile in conflict with law”, he took opinion

from the Salem TTP, prepared a model charge sheet and filed the

same in the trial Court.

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26. The trial Court was also cognizant of this important aspect as

can be clearly discerned from the opening lines of para 2 of the

judgment of the trial Court wherein it is mentioned that

“Thirumoorthy’, a 17 year old juvenile in conflict with law,

lives with his mother in Telanganaur”. It has also been recorded

by the trial Court that on the date of passing of the judgment, i.e.,

18th February, 2019, the accused was 19 years and 2 months old

and accordingly, he was required to be sent to a place of safety as

per Section 20 of the JJ Act. The judgment passed by the Sessions

Court also records the fact that during the course of the trial, the

accused was kept in a child protection home. Further at para 32

of the judgment, the trial Court also noted that the Public

Prosecutor himself argued that Thirumoorthy was a CICL who

committed the offence upon the child victim.

27. Thus, there is no escape from the conclusion that even before

the result of investigation was filed, the fact regarding the accused

being a CICL was well known to the Investigating Officer(PW-25),

the prosecution and the trial Court as well.

28. Before dealing with the rival contentions, we would now refer

to some of the relevant provisions of the JJ Act which are required

to be followed in a case involving prosecution of a CICL:-

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“3. General principles to be followed in administration of
Act. ––The Central Government, the State Governments, the
Board, and other agencies, as the case may be, while
implementing the provisions of this Act shall be guided by the
following fundamental principles, namely: ––

(i) Principle of presumption of innocence: Any child

shall be presumed to be an innocent of any mala fide
or criminal intent up to the age of eighteen years.

(ii) Principle of dignity and worth: All human beings

shall be treated with equal dignity and rights.

(iii) Principle of participation: Every child shall have a

right to be heard and to participate in all processes
and decisions affecting his interest and the child’s
views shall be taken into consideration with due
regard to the age and maturity of the child.

(iv) Principle of best interest: All decisions regarding

the child shall be based on the primary consideration
that they are in the best interest of the child and to
help the child to develop full potential.

(v) Principle of family responsibility: The primary

responsibility of care, nurture and protection of the
child shall be that of the biological family or adoptive
or foster parents, as the case may be.

(vi) Principle of safety: All measures shall be taken to

ensure that the child is safe and is not subjected to
any harm, abuse or maltreatment while in contact
with the care and protection system, and thereafter.

(vii) Positive measures: All resources are to be

mobilised including those of family and community,
for promoting the well-being, facilitating development
of identity and providing an inclusive and enabling
environment, to reduce vulnerabilities of children and
the need for intervention under this Act.

(viii) Principle of non-stigmatising semantics:

Adversarial or accusatory words are not to be used in
the processes pertaining to a child.

(ix) Principle of non-waiver of rights: No waiver of any

of the right of the child is permissible or valid,
whether sought by the child or person acting on
behalf of the child, or a Board or a Committee and any

13
 non-exercise of a fundamental right shall not amount
to waiver.

(x) Principle of equality and non-discrimination: There

shall be no discrimination against a child on any
grounds including sex, caste, ethnicity, place of birth,
disability and equality of access, opportunity and
treatment shall be provided to every child.

(xi) Principle of right to privacy and confidentiality:

Every child shall have a right to protection of his
privacy and confidentiality, by all means and
throughout the judicial process.

(xii) Principle of institutionalisation as a measure of

last resort: A child shall be placed in institutional care
as a step of last resort after making a reasonable
inquiry.

(xiii) Principle of repatriation and restoration: Every

child in the juvenile justice system shall have the
right to be re-united with his family at the earliest and
to be restored to the same socio-economic and
cultural status that he was in, before coming under
the purview of this Act, unless such restoration and
repatriation is not in his best interest.

(xiv) Principle of fresh start: All past records of any

child under the Juvenile Justice system should be
erased except in special circumstances.

(xv) Principle of diversion: Measures for dealing with

children in conflict with law without resorting to
judicial proceedings shall be promoted unless it is in
the best interest of the child or the society as a whole.

(xvi) Principles of natural justice: Basic procedural

standards of fairness shall be adhered to, including
the right to a fair hearing, rule against bias and the
right to review, by all persons or bodies, acting in a
judicial capacity under this Act.

9. Procedure to be followed by a Magistrate who has not been

empowered under this Act. –– (1) When a Magistrate, not empowered
to exercise the powers of the Board under this Act is of the opinion
that the person alleged to have committed the offence and brought
before him is a child, he shall, without any delay, record such opinion
and forward the child immediately along with the record of such
proceedings to the Board having jurisdiction.

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 (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
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.

(3) If the court finds that a person has committed an

offence and was a child on the date of commission of such
offence, it shall forward the child to the Board for passing
appropriate orders and the sentence, if any, passed by the court
shall be deemed to have no effect.

(4) In case a person under this section is required to be

kept in protective custody, while the person’s claim of being a
child is being inquired into, such person may be placed, in the
intervening period in a place of safety.
(emphasis supplied)

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 subsection (3) of section 18:

Provided that for such an assessment, the Board may

take the assistance of experienced psychologists or
psycho-social workers or other experts.

Explanation. —For the purposes of this section, it is

clarified that preliminary assessment is not a trial,
but is to assess the capacity of such child to commit
and understand the consequences of the alleged
offence.

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(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:

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;

(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

16
 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.

19. Powers of Children's Court.—(1) After the receipt of

preliminary assessment from the Board under Section 15, the
Children's Court may decide that—
(i) there is a need for trial of the child as an adult as per the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974)
and pass appropriate orders after trial subject to the provisions
of this section and Section 21, considering the special needs of
the child, the tenets of fair trial and maintaining a child friendly
atmosphere;

17
 (ii) there is no need for trial of the child as an adult and may
conduct an inquiry as a Board and pass appropriate orders in
accordance with the provisions of Section 18.
(2)-(5)..……..”

29. The provisions contained in Section 9(1) stipulate that when

a Magistrate not empowered to exercise the power of the Board

under the Act is of the opinion that the person alleged to have

committed the offence and brought before him is a child, he shall,

without any delay, record such opinion and forward the child

immediately along with the record of such proceedings to the

Board having jurisdiction.

30. Sections 9(2) and 9(3) cast a burden that where the Court

itself is of the opinion that the person was a child on the date of

commission of the offence, it shall conduct an inquiry so as to

determine the age of such person and upon finding that the person

alleged to have committed the offence was a child on date of

commission of such offence, forward such person to the Board for

passing appropriate orders and sentence, if any, passed by the

Court shall be deemed to have no effect.

31. In the present case, the situation is very stark inasmuch as,

even when the charge sheet was filed, the Investigating Officer had

clearly recorded that the date of birth of the accused was 30th May,

18
2000, and hence, even assuming that Sessions Court at Salem had

been designated as a Children’s Court, there was no option for the

said Court but to forward the child to the concerned Board for

further directions.

32. There is no dispute on the aspect that the offences of which

the accused appellant was charged with, fall within the category of

‘heinous offences’ as defined under Section 2(33) of the JJ Act.

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 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

committed the offence. 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-

19
section, the order passed by the Board is appealable under Section

101(2) of the JJ Act.

33. 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.

34. By virtue of Section 19(1), the Children’s Court, upon

receiving such report of preliminary assessment undertaken by the

Board under Section 15 may further decide as to whether there is

a need for trial of the child as an adult or not.

35. The procedure provided under Sections 15 and 19 has been

held to be mandatory by this Court in the case of Ajeet Gurjar v.

State of Madhya Pradesh3. In the said case, this Court

considered the import of Section 19(1) of the JJ Act and held that

the word ‘may’ used in the said provision be read as ‘shall’. It was

also held that holding of an inquiry under 19(1)(i) is not an empty

formality. Section 19)(1)(ii) provides that after examining the

matter, if the Children’s Court comes to the conclusion that there

is no need for trial of the child as an adult, instead of sending back

3
2023 SCC Online SC 1255
20
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 Children’s Court have

different consequences.

36. It was further held that the Children’s Court cannot brush

aside the requirement of holding an inquiry under Section 19(1)(i)

of the JJ Act. Thus, all actions provided under Section 19 are

mandatorily required to be undertaken by the Children’s Court.

37. As can be seen from the facts of the present case, there has

been a flagrant violation of the mandatory requirements of

Sections 15 and 19 of the JJ Act. Neither was the charge sheet

against the accused appellant filed before the Board nor was any

preliminary assessment conducted under Section 15, so as to find

out whether the accused appellant was required to be tried as an

adult.

38. In absence of a preliminary assessment being conducted by

the Board under Section 15, and without an order being passed by

the Board under Section 15(1) read with Section 18(3), it was

impermissible for the trial Court to have accepted the charge sheet

and to have proceeded with the trial of the accused.

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39. Thus, it is evident that the procedure adopted by the Sessions

Court in conducting the trial of the accused appellant is de hors

the mandatory requirements of JJ Act.

40. Thus, on the face of the record, the proceedings undertaken

by the Sessions Court in conducting trial of the CICL, convicting

and sentencing him as above are in gross violation of the mandate

of the Act and thus, the entire proceedings stand vitiated.

41. It seems that pursuant to the trial being concluded, the trial

Court realized the gross illegality in the proceedings and thus, in

an attempt to give a vestige of validity to the grossly illegal

proceedings conducted earlier, an exercise was undertaken to deal

with the accused appellant as per the provisions of the JJ Act on

the aspect of sentencing. However, ex facie, the said action which

seems to be taken by way of providing an ex post facto imprimatur

to the grossly illegal trial does not stand to scrutiny because the

very foundation of the prosecution case is illegal to the core.

42. All the proceedings taken against the accused appellant are

vitiated as being in total violation of the mandatory procedure

prescribed under the JJ Act.

43. In the case of Karan Alias Fatiya(supra) relied upon by

learned counsel for the State, this Court interpreted Section 9(3)

22
and held that this sub-section does not specifically or impliedly

provide that the conviction recorded by any Court with respect to

a person who has been subsequently, after the disposal of the case

found to be juvenile or a child, would lose its effect, rather it is only

the sentence if any passed by the Court would be deemed to have

no effect. The said judgment is clearly distinguishable because in

the present case, the fact that the accused was a child on the date

of the incident was clearly known to the Investigating Officer, the

prosecution and the trial Court and thus, there is no possibility of

saving the illegal proceedings by giving them an ex post facto

approval.

44. In the case of Pawan Kumar(supra), the plea of juvenility

raised by the accused did not find favour of the Sessions Court as

well as the High Court. However, in the appeal before this Court,

a report was submitted by the Additional Sessions Judge, wherein

it was opined that the appellant was a juvenile at the time of

commission of alleged offences. The incident in the said case

occurred on 1st December, 1995 and the age of juvenility was 16

years as provided in the then prevailing Juvenile Justice Act, 1986.

In the peculiar facts of the said case, this Court held that by virtue

of subsequent amendments, the age of juvenility had been raised

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to 18 years and thus, the accused was entitled to be treated as a

juvenile by virtue of the provisions of the JJ Act prevailing when

the appeal was taken up. Since the accused had already

undergone the maximum punishment of detention provided under

the said Act, i.e., three years, it was directed that the accused

therein be released forthwith.

45. In the above two referred cases, the situation presented was

that the factum regarding the accused being a child within the

meaning of the JJ Act came to light at a very late stage i.e. after

final decision of the cases and hence both these cases are clearly

distinguishable from the case at hand.

46. In the case of Ajeet Gurjar(supra), this Court remitted back

the matter to the Sessions Court for complying with the

requirements of Section 19(1) of the JJ Act. However, in the

present case, there is yet another hurdle which convinces us that

it is not a fit case warranting de novo proceedings against the

accused appellant by taking recourse to the provisions of the JJ

Act. At the cost of repetition, it may be reiterated that the charge

sheet was filed against the accused appellant directly before the

Sessions Court (statedly designated as a Children’s Court) and he

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was never presented before the Juvenile Justice Board as per the

mandate of the JJ Act.

47. The accused appellant being a CICL was never subjected to

preliminary assessment by the Board so as to find out whether he

should be tried as an adult. Directing such an exercise at this

stage would be sheer futility because now the appellant is nearly

23 years of age.

48. At this stage, there remains no realistic 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

committed the offence in the year 2016.

49. Since we have held that the entire proceedings taken against

the appellant right from the stage of investigation and the

completion of trial stand vitiated as having been undertaken in

gross violation of the mandatory requirements of the JJ Act, we

need not dwell into the merits of the matter or to reappreciate the

evidence available on record for finding out whether the

prosecution has been able to prove the guilt of the appellant by

reliable circumstantial evidence.

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50. Thus, we are left with no option but to quash and set aside

the impugned judgment and direct that the appellant who is

presently lodged in jail shall be released forthwith, if not required

in any other case.

51. The appeal is allowed accordingly.

52. Pending application(s), if any, shall stand disposed of.

………………………….J.
(B.R. GAVAI)

………………………….J.
(SANDEEP MEHTA)
New Delhi;
March 22, 2024.

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