Child In Conflict with Law Through His Mother v. State of Karnataka and Anr., Criminal Appeal No. 2411 of 2024.

Brief Facts

• An FIR was registered against the Child in Conflict with Law (hereafter referred as ‘CCL’) for the offences under section 376(i), 342 IPC and sections 4, 5, 6, 7 and 8 of POCSO Act, 2012. After his apprehension the CCL was produced before the Board on 03.11.2021 and subsequently released on bail on 09.11.2021. After filing of the charge-sheet, the Board was called upon to decide whether the CCL is to be tried by the Board or as an adult by the Children’s Court. The arguments in the matter were heard and the matter was adjourned to 05.04.2022 for passing order. On 05.04.2022, the Principal Magistrate of the Board passed an order that the CCL is to tried as an adult before the Children’s Court, however, the Member of the Board refused to put his signature as he was having a dissenting view that the CCL is to be tried as a Juvenile by the Board and no order was passed on that day by the member of the Board. Thereafter, on 12.04.2022 the matter was heard afresh by two members of the Board without the presence of Principal Magistrate of the Board. The two members passed an order that the CCL is to be tried by the Board as a Juvenile.
• Aggrieved by the same, the application under section 19 of the POCSO Act was filed by the Complainant before the Board, however the same was dismissed by the Board.
• Aggrieved by such dismissal, the Complainant preferred a Revision Petition before the High Court, whereby the High Court set aside the order passed by the Board and directed to transmit the record to the Children’s Court for trial.
• The CCL preferred an Appeal before the Supreme Court impugning the order passed by the High Court.

Issues

• Whether the period provided for completion of Preliminary Assessment under section 14(3) of the Act is mandatory or directory?
• Whether non-availment of the remedy of appeal by the Complainant in the present situation is fatal to the case of the Complainant?
• Limitation period for filing appeal under section 101(2) of the JJ Act.
• Whether the order dated 05.04.2022 passed by the Board is valid or not?
• Whether the CCL can exercise his right to appeal against order dated 05.04.2022 passed by the Board.?

Held

• The Supreme Court disposed of the appeal by issuing several directions. The Supreme Court upheld the order of the High Court and the original order dated 05.04.2023 passed by the Presiding Order of the JJ Board was held to be correct. However, the CCL was given liberty to challenge the order dated 05.04.2023 before the Appellate Authority within 10 days of the order of the Supreme Court. The findings of the court are as under:

 Time period provided under Section 14(3) is mandatory or directory

• As in the process of preliminary inquiry there is involvement of many persons, namely, the investigating officer, the experts whose opinion is to be obtained, and thereafter the proceedings before the Board, where for different reasons any of the party may be able to delay the proceedings, in our opinion the time so provided in Section 14(3) cannot be held to be mandatory, as no consequences of failure have been provided as is there in case of enquiry into petty offences in terms of Section 14(4) of the Act. If we see the facts of the case in hand, the investigating officer had taken about two months’ time in getting the report from the NIMHANS. Where consequences for default for a prescribed period in a Statute are not mentioned, the same cannot be held to be mandatory.

 Exercise of revisional power by the High Court

• The Supreme Court held that mere mentioning of wrong section i.e. 397 read with 399 CrPC cannot obstruct the court to exercise its revisional powers. Section 102 of the Act enables the High Court to exercise its revisional powers with reference to any order or proceeding by the Board or the Children’s Court. Hence, on that account we do not find that the revision should have been dismissed.
• In our opinion, even though such a remedy of appeal may be available to the complainant which should normally be availed, but what is evident from the facts of the case is that there was an earlier order passed by the Principal Magistrate on 05.04.2022, which was final regarding conduct of trial of the CCL by the Children’s Court, still subsequently two members of the Board without the Principal Magistrate being there passed an order on 12.04.2022 directing inquiry into the offence by the Board. In fact, the subsequent order was totally non-est. Even if in such a situation the aforesaid order was not
  challenged by availing the remedy of appeal, in our opinion the revision under Section 102 of the Act cannot be said to be not maintainable.
• Hence, non-availment of the remedy of appeal by the complainant in such a situation cannot be held to be fatal. We may also add here that even the Appellant could have availed the remedy of appeal against the order dated 05.04.2022, but he thought of continuing before the Board in a non-est proceeding.

 Anomaly regarding the term ‘children’s court’ and ‘court of sessions’

• The Supreme Court after conjoint reading of the provisions of the Juvenile Justice Act, 2015 and Commissions for Protection of Child Rights Act, 2005 and Juvenile Justice Model Rules, 2016, opined that wherever words ‘Children’s Court’ or the ‘Sessions Court’ are mentioned both should be read in alternative. In the sense where Children’s Court is available, even if the appeal is said to be maintainable before the Sessions Court, it has to be considered by the Children’s Court. Whereas where no Children’s Court is available, the power is to be exercised by the Sessions Court.

Time for filing appeal against order of board under Section 15 of the Juvenile Justice Act

• Though, the right of appeal has been provided in Section 15(2) and Section 101(2) of the Act against an order passed under Section 18(3) after preliminary assessment under Section 15 of the Act,
  however, neither any time has been fixed for filing the appeal nor any provision is provided for condonation of delay in case need be. In our opinion, the same being an omission. In order to make the Act workable and putting timelines for exercise of statutory right of appeal which always is there, we deem it appropriate to fill up this gap, which otherwise does not go against the scheme of the Act. Hence, for the period for filing of appeal in Section 101(2), we take guidance from Section 101(1) of the Act. The period provided for filing the appeal therein is 30 days and in case sufficient cause is shown the power to condone the delay has also been conferred on the appellate authority. Timeline has also been provided for decision of appeal.

 Validity of order passed by the board on 05.04.2022

• A perusal of the record shows that after the order was reserved on 29.03.2022, the matter was listed on 05.04.2022 for orders. The Principal Magistrate recorded his opinion that the CCL is to be tried by the Children’s Court. The other member of the Board recorded his dissent though, no detailed reasons were given as such. In terms of Section 7(4)of the Act, the opinion of the majority is to prevail. The case in hand does not fall in that category, as the Board on that date consisted of the Principal Magistrate and a Member, and the Member had recorded his dissent. In such a situation the opinion of the Principal Magistrate will prevail. In the case in hand the order was signed by the Principal Magistrate. Even if the other member of the Board had not signed the order and had merely mentioned that he had a dissenting view, without any reasons being recorded, the order of the Principal Magistrate will prevail. Needless to add that reasons in any order are ‘heart and soul’ and are helpful for the next higher Court to examine the
  The proceedings with reference to the opinion of the Board regarding inquiry or trial of the CCL, either by the Board or Children’s Court, stood culminated. Any further proceedings in that matter were non-est and without jurisdiction. Much less to say anything more about the same. The opinion of the High Court in that regard does not call for any interference.

 Remedy of appeal

• The Supreme Court observed that the High Court failed to consider the objections raised by the Child in Conflict with Law (CCL) against the order dated 05.04.2022 passed by the Juvenile Justice Board and merely affirmed the said order on the ground that it was based on the opinion obtained from NIMHANS. The Supreme Court further held that, as per the scheme of the Act, the appellate authority is vested with the power to seek assistance from experienced psychologists and medical specialists independent of those whose opinion was relied upon by the Board. Accordingly, the CCL is entitled to exercise his statutory right of appeal against the Board’s order.
• The Supreme Court, emphasised that all orders passed by Courts, Tribunals, Boards, and Quasi-Judicial Authorities should clearly mention the names of the Presiding Officer and/or members signing the order, along with their identification numbers, if available. It was further noted that the presence of parties and/or their counsels must be properly recorded in the order.

Relevant Para No.

• 9.24, 9.27, 10. 1, 10.3, 10.4, 12.2, 13, 13.1, 15.5, 16.1, 16.2, 17.1 and 17.2