* Author
[2024] 3 S.C.R. 1228 : 2024 INSC 247
Thirumoorthy
v.
State Represented by the Inspector of Police
(Criminal Appeal No. 1773 of 2024)
22 March 2024
[B.R. Gavai and Sandeep Mehta*, JJ.]
Issue for Consideration
Appellant-accused, a Child in Conflict with Law on the date of the
incident was convicted and sentenced u/ss.363, 342, 302, 201
r/w 302, IPC and s.6, POCSO Act. Trial, conviction and sentence
of the appellant, if was vitiated on account of non-adherence to
the mandatory requirements of the Juvenile Justice (Care and
Protection of Children) Act, 2015.
Headnotes
Juvenile Justice (Care and Protection of Children) Act, 2015
– ss.3, 9, 15, 18, 19 – Despite the appellant-accused having
been found to be a juvenile and thus, a Child in Conflict with
Law (CICL) on the date of the incident in 2016, charge sheet
against the accused was filed directly before the Sessions
Court – Appellant was convicted and sentenced u/ss.363,
342, 201 r/w 302, IPC and s.6, POCSO Act – Conviction and
sentences affirmed by High Court – Correctness:
Held: Even before the result of investigation was filed, the fact
regarding the accused being a CICL was well known to the IO (PW25), the prosecution and the trial Court as well – Even assuming
that the Sessions Court was designated as a Children’s Court, there
was no option for the said Court but to forward the child to the
concerned Juvenile Justice Board for further directions – There was
flagrant violation of the mandatory requirements of ss.15 and 19 of
the JJ Act – Neither was the charge sheet against the appellant filed
before the Board nor was any preliminary assessment conducted
u/s.15, so as to find out whether the appellant was required to
be tried as an adult – In absence of a preliminary assessment
being conducted by the Board u/s.15, and without an order being
passed by the Board u/s.15(1) r/w s.18(3), it was impermissible
for the trial Court to have accepted the charge sheet and to have
proceeded with the trial – Thus, the proceedings undertaken by
[2024] 3 S.C.R. 1229
Thirumoorthy v. State Represented by the Inspector of Police
the Sessions Court in conducting trial of the CICL, convicting
and sentencing him were in gross violation of the mandate of
the Act and hence, vitiated – Further, pursuant to the trial being
concluded, the trial Court having realized the gross illegality in the
proceedings, dealt with the appellant as per the provisions of the
JJ Act on the aspect of sentencing – However, ex facie, the said
action does not stand to scrutiny because the very foundation of
the prosecution case was illegal to the core – Entire proceedings
taken against the appellant right from the stage of investigation
and the completion of trial were vitiated being in gross violation of
the mandatory requirements of the JJ Act – Impugned judgment
quashed and set aside. [Paras 31, 37-41, 44 and 50]
Juvenile Justice (Care and Protection of Children) Act, 2015
– Appellant was convicted and sentenced u/ss.363, 342, 201
r/w 302, IPC and s.6, POCSO Act – Offence was committed
by appellant-accused in the year 2016 – Despite him being
a juvenile and thus, a Child in Conflict with Law (CICL) on
the date of the incident, charge sheet against him was filed
directly before the Sessions Court (statedly designated as a
Children’s Court) and he was never subjected to preliminary
assessment by the Board to find out whether he should be
tried as an adult – Such exercise if to be done at this stage:
Held: No – Directing such an exercise at this stage would be sheer
futility because now the appellant is nearly 23 years of age – At this
stage, there remains no realistic possibility of finding out the mental
and physical capacity of the 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 – Present case not fit to warrant de novo proceedings against
the appellant by taking recourse to the provisions of the JJ Act.
[Paras 47, 48 and 46]
Juvenile Justice (Care and Protection of Children) Act, 2015
– ss.3, 9, 15, 18, 19 – Prosecution of a Child in Conflict with
Law – Provisions to be followed – Discussed.
Case Law Cited
Karan alias Fatiya v. State of Madhya Pradesh [2023]
2 SCR 587 : (2023) 5 SCC 504; Pawan Kumar v. State
of Uttar Pradesh & Ors. [2023] 15 SCR 261 : 2023
SCC OnLine SC 1492 – distinguished.
1230 [2024] 3 S.C.R.
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Ajeet Gurjar v. State of Madhya Pradesh 2023 SCC
Online SC 1255 – referred to.
List of Acts
Juvenile Justice (Care and Protection of Children) Act, 2015; Penal
Code, 1860; Protection of Children from Sexual Offences Act, 2012.
List of Keywords
Juvenile; Child in Conflict with Law; Children’s Court; Juvenile
Justice Board; Preliminary assessment; De novo proceedings.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1773
of 2024
From the Judgment and Order dated 15.04.2021 of the High Court
of Judicature at Madras in CRLA No. 451 of 2019
Appearances for Parties
Ms. S. Janani, Ms. Sharika Rai, Advs. for the Appellant.
Dr. Joseph Aristotle S., Ms. Bhanu Kapoor, Ashutosh Singh Rana,
Advs. for the Respondent.
Judgment / Order of the Supreme Court
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 by the Court of Sessions
Judge, Mahila Court, Salem (hereinafter being referred to as the
‘trial Court’) in Special Sessions Case No. 79 of 2016. By the said
judgment and order, learned trial Court convicted and sentenced
the appellant as below: -
[2024] 3 S.C.R. 1231
Thirumoorthy v. State Represented by the Inspector of Police
Provision under which
convicted
Sentence
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
IPC
Sentenced to undergo 07 years
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(PW1) aged 6 years went missing in the evening of 2nd July, 2016. Mr.
G (PW-1) lodged a complaint at P.S. Kolathur, District 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
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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 (PW1). On this, the needle of suspicion pointed towards the accusedappellant 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 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
[2024] 3 S.C.R. 1233
Thirumoorthy v. State Represented by the Inspector of Police
under the JJ Act. Inspite 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 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
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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 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 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
[2024] 3 S.C.R. 1235
Thirumoorthy v. State Represented by the Inspector of Police
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.
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 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.
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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 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.
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.
1 [2023] 2 SCR 587 : (2023) 5 SCC 504
2 [2023] 15 SCR 261 : 2023 SCC OnLine SC 1492
[2024] 3 S.C.R. 1237
Thirumoorthy v. State Represented by the Inspector of Police
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:-
“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.
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(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 wellbeing, 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
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.
[2024] 3 S.C.R. 1239
Thirumoorthy v. State Represented by the Inspector of Police
(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.
(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,
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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.
[2024] 3 S.C.R. 1241
Thirumoorthy v. State Represented by the Inspector of Police
Explanation. —For the purposes of this section,
it is clarified that preliminary assessment is not
a trial, but is to assess the capacity of such child
to commit and understand the consequences of
the alleged offence.
(2) Where the Board is satisfied on preliminary assessment
that the matter should be disposed of by the Board, then
the Board shall follow the procedure, as far as may be,
for trial in summons case under the Code of Criminal
Procedure, 1973:
Provided that the order of the Board to dispose
of the matter shall be appealable under subsection (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;
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(d) order the child or parents or the guardian
of the child to pay fine:
Provided that, in case the child is working,
it may be ensured that the provisions of
any labour law for the time being in force
are not violated;
(e) direct the child to be released on probation
of good conduct and placed under the
care of any parent, guardian or fit person,
on such parent, guardian or fit person
executing a bond, with or without surety,
as the Board may require, for the good
behaviour and 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 subsection (1), the Board may, in addition pass orders to—
[2024] 3 S.C.R. 1243
Thirumoorthy v. State Represented by the Inspector of Police
(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;
(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
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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, 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-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.
[2024] 3 S.C.R. 1245
Thirumoorthy v. State Represented by the Inspector of Police
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 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.
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.
3 2023 SCC Online SC 1255
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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) 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 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.
[2024] 3 S.C.R. 1247
Thirumoorthy v. State Represented by the Inspector of Police
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 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.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal allowed.
