Environment (Protection) Act, 1986 – Environment (Protection) Rules, 1986 – r.5(4) – Constitution of India – Articles 14, 21 – First EC notification provided that certain projects falling under categories set out in the Schedule thereto would require prior EC from the concerned Regulatory Authority – Second EC notification was issued adding Appendix-IX to the first EC notification, providing for exemption to specific categories of projects from the requirement of obtaining EC – Impugned notification substituted Appendix-IX which provided that prior EC will not be required inter alia for item 6 i.e. for extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc. – Challenge to – NGT held that the exemption u/item 6 should strike a balance and directed Ministry of Environment, Forest and Climate Change to revisit the impugned notification – Review theragainst also dismissed:

* Author

[2024] 3 S.C.R. 1249 : 2024 INSC 241

Noble M. Paikada

v.

Union of India

(Civil Appeal Nos. 1628-1629 of 2021)

21 March 2024

[Abhay S. Oka* and Sanjay Karol, JJ.]

Issue for Consideration

Item 6 in the impugned notification which granted exemption from

requirement of prior Environmental Clearance (EC) for extraction

or sourcing or borrowing of ordinary earth for the linear projects

such as roads, pipelines, etc., if provided a blanket exemption

which was arbitrary and violative of Article 14 of the Constitution

of India.

Headnotes

Environment (Protection) Act, 1986 – Environment (Protection)

Rules, 1986 – r.5(4) – Constitution of India – Articles 14, 21

– First EC notification provided that certain projects falling

under categories set out in the Schedule thereto would require

prior EC from the concerned Regulatory Authority – Second

EC notification was issued adding Appendix-IX to the first EC

notification, providing for exemption to specific categories of

projects from the requirement of obtaining EC – Impugned

notification substituted Appendix-IX which provided that prior

EC will not be required inter alia for item 6 i.e. for extraction

or sourcing or borrowing of ordinary earth for the linear

projects such as roads, pipelines, etc. – Challenge to – NGT

held that the exemption u/item 6 should strike a balance and

directed Ministry of Environment, Forest and Climate Change

to revisit the impugned notification – Review theragainst also

dismissed:

Held: Before the issue of the second EC notification by which

Appendix-IX was incorporated, the procedure of inviting objections

to the draft notification was followed, and the objections were

considered – There was no reason to dispense with this important

requirement before publishing the impugned notification – Article

21 guarantees right to live in a pollution-free environment –

Citizens have a fundamental duty to protect and improve the 

1250 [2024] 3 S.C.R.

Digital Supreme Court Reports

environment – Therefore, the participation of the citizens is very

important and is taken care of by allowing them to raise objections

to the proposed notification – Citizens being major stakeholders

in environmental matters, their participation cannot be prevented

by casually exercising the power under sub-rule (4) of r.5 – No

document recording the satisfaction of the competent authority

about the existence of public interest and the nature of the public

interest was produced by the Ministry – The drastic decision to

invoke sub-rule (4) of r.5 was made without any application of

the mind – Hence, the decision-making process was vitiated –

Impugned notification was issued two days after the nationwide

lockdown was imposed due to the COVID-19 pandemic – At that

time, the work of linear projects, such as roads, pipelines, etc.,

had come to a grinding halt – So, there was no tearing hurry to

modify the EC notifications – Inclusion of item 6 of the substituted

Appendix-IX illegal – Further, there was no specification about

the quantum of ordinary earth which can be extracted on the

basis of the exemption – “Linear projects” were not defined –

Without the definition, it is difficult to imagine which projects will

be termed linear projects – The term “linear projects” is very

vague – The process to be adopted for excavation was also

not set out – Thus, item 6 is a case of completely unguided

and blanket exemption, which is per se, arbitrary and violative

of Article 14 – There is no provision for setting up an authority

which will decide whether a particular linear project is covered

by item 6 – No steps taken to revisit item 6 of the impugned

notification, as directed – Notwithstanding the specific directions

issued in the impugned judgment, no safeguards were provided,

such as laying down processes, the mode and the manner of

excavation and quantum – Item 6 of the substituted AppendixIX forming part of the impugned notification and item 6 of the

amended impugned notification (issued during the pendency of

the present appeals), struck down and quashed. [Paras 22-25,

28, 31, 32]

Environment (Protection) Act, 1986 – s.3 – Power of Central

Government to take measures to protect and improve

environment – Environment (Protection) Rules, 1986 – r.5 –

Prohibition and Restriction on the location of industries and

the carrying on processes and operations in different areas:

Held: s.3 of the EP Act must be read with r.5 of the EP Rules –

r.5 has been enacted to give effect to clause (v) of sub-section 

[2024] 3 S.C.R. 1251

Noble M. Paikada v. Union of India

(2) of s.3 of the EP Act, which empowers the Central Government

to put restrictions on the areas in which industries, operations or

processes shall not be carried out or shall be carried out subject

to certain safeguards – Further, Sub-rule (4) of r.5 empowers

the Central Government to dispense with the requirement of

publication of notice under sub-rule (3) of r.5 when it appears to

the Central Government that it is in the public interest to do so

– Thus, sub-rule (4) of r.5 is an exception to sub-rule (3) – The

exception can be invoked only on the grounds of public interest.

[Paras 15, 19]

Case Law Cited

Deepak Kumar & Ors. v. State of Haryana & Ors. [2012]

4 SCR 819 : (2012) 4 SCC 629; Hanuman Laxman

Aroskar v. Union of India [2019] 5 SCR 916 : (2019)

15 SCC 401 – referred to.

List of Acts

Environment (Protection) Act, 1986; Constitution of India; Mines

and Minerals (Development and Regulation) Act, 1957.

List of Keywords

Environmental Clearance; Prior Environmental Clearance;

Environmental Clearance notification; Blanket exemption;

Regulatory Authority; Linear projects.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1628-1629 of

2021

From the Judgment and Order dated 28.10.2020 of the National Green

Tribunal, New Delhi in OA No. 190 of 2020

Appearances for Parties

Ms. Anitha Shenoy, Sr. Adv., Ms. Nishtha Kumar, Vanshdeep Dalmia,

Ms. Ayushma Awasthi, Ms. Namrata Sarah Caleb, Ms. Pariksha,

Advs. for the Appellant.

Ms. Aishwarya Bhati, A.S.G., Gurmeet Singh Makker, Ms. Swarupama

Chaturvedi, Ms. Ruchi Kohli, Ms. Shradha Deshmukh, Madhav Sinhal,

Advs. for the Respondent.

1252 [2024] 3 S.C.R.

Digital Supreme Court Reports

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

FACTUAL ASPECTS

1. These appeals take exception to the judgment and order dated 28th

October 2020 (for short, ‘the impugned judgment’) passed by the

National Green Tribunal, Principal Bench, New Delhi (for short, ‘the

NGT’). There is also a challenge to the order dated 24th December

2020, by which, the NGT rejected the review petition filed by the

appellant for seeking review of the impugned judgment.

2. A notification was issued on 14th September 2006 (for short, ‘the first

EC notification’) by the Ministry of Environment and Forests (for short,

‘MoEF’) in exercise of powers under sub-section (1) and clause (v)

of sub-section (2) of Section 3 of the Environment (Protection) Act,

1986 (for short, ‘the EP Act’) read with clause (d) of sub-rule (3) of

Rule 5 of the Environment (Protection) Rules, 1986 (for short, ‘the

EP Rules’). Clause 2 of the first EC notification is material, which

reads thus:

“2. Requirements of prior Environmental Clearance

(EC):- The following projects or activities shall require prior

environmental clearance from the concerned regulatory

authority, which shall hereinafter referred to be as the

Central Government in the Ministry of Environment and

Forests for matters falling under Category ‘A’ in the

Schedule and at State level the State Environment Impact

Assessment Authority (SEIAA) for matters falling under

Category ‘B’ in the said Schedule, before any construction

work, or preparation of land by the project management

except for securing the land, is started on the project or

activity:

(i) All new projects or activities listed in the Schedule

to this notification;

ii) Expansion and modernization of existing projects or

activities listed in the Schedule to this notification with

addition of capacity beyond the limits specified for the

concerned sector, that is, projects or activities which 

[2024] 3 S.C.R. 1253

Noble M. Paikada v. Union of India

cross the threshold limits given in the Schedule, after

expansion or modernization;

(iii) Any change in product – mix in an existing

manufacturing unit included in Schedule beyond

the specified range.”

3. The notification provided that the projects falling under categories

A and B set out in the Schedule to the notification will require prior

Environmental Clearance (EC) from the concerned Regulatory

Authority. The Regulatory Authorities for different projects have been

named in clause (2) of the first EC notification. For the A category,

the Central Government in the MoEF was named as the Regulatory

Authority. For projects in the B category, the State Environment

Impact Assessment Authority (for short, ‘SEIAA’) was named as the

Regulatory Authority. Various procedural aspects regarding applying

for a grant of EC, its processing, etc., have been incorporated in

the first EC notification. There were subsequent modifications to the

first EC notification. Another notification was issued on 15th January

2016 (for short, ‘the second EC notification’), by which the first EC

notification was partly modified. Clause 7B and Appendix-IX were

added to the first EC notification, providing for an exemption to

specific categories of projects from the requirement of obtaining EC.

Item 6 in the said Appendix-IX reads thus:

“Appendix-IX

Exemption of certain cases from requirement of

Environmental Clearance

The following cases shall not require prior environmental

clearance, namely:

.. .. .. .. .. .. .. .. .. .. .. .. .. ..

.. .. .. .. .. .. .. .. .. .. .. .. .. ..

6. Dredging and de-silting of dams, reservoirs, weirs,

barrages, river, and canals for the purpose of their

maintenance, upkeep and disaster management.

.. .. .. .. .. .. .. .. .. .. .. .. .. ..”

Though the NGT struck down a part of the second EC notification,

Appendix-IX was not touched.

1254 [2024] 3 S.C.R.

Digital Supreme Court Reports

4. In the Original Application subject matter of these appeals, the

challenge before the NGT was to the notification dated 28th March

2020 (for short, ‘the impugned notification’), which modified earlier EC

notifications. Appendix IX to the second EC notification provided for

exempting certain cases from the requirement of obtaining EC. By the

impugned notification, Appendix-IX was substituted. The substituted

Appendix-IX provided that the prior EC will not be required in the

thirteen cases set out therein. We are concerned with items 6 and

7 of the substituted Appendix-IX, which read thus:

“Appendix-IX

Exemption of certain cases from requirement of

Environmental Clearance: The following cases shall not

require Prior Environmental Clearance, namely:-

.. .. .. .. .. .. .. .. .. .. .. .. ..

.. .. .. .. .. .. .. .. .. .. .. .. ..

6. Extraction or sourcing or borrowing of ordinary earth for

the linear projects such as roads, pipelines, etc.

7. Dredging and de-silting of dams, reservoirs, weirs,

barrages, river and canals for the purpose of their

maintenance, upkeep and disaster management.

.. .. .. .. .. .. .. .. .. .. .. .. ..”

Thus, item 6 in Appendix IX of the second EC notification was

maintained but was renumbered as item 7. Item 6 was newly added.

5. Before we go into the challenge to the impugned notification, we must

note here that items 6 and 7 were substituted by further notification

dated 30th August 2023 (for short, ‘amended impugned notification’)

issued during the pendency of these appeals. Substituted items 6

and 7 in the amended impugned notification read thus:

“6. Extraction or sourcing or borrowing of ordinary earth

for the linear projects such as roads, pipelines, etc.

shall be subject to the compliance of standard operating

procedures and environmental safeguards issued in this

regard from time to time.

7. Dredging and de-silting of dams, reservoirs, weirs,

barrages, river and canals for the purpose of their 

[2024] 3 S.C.R. 1255

Noble M. Paikada v. Union of India

maintenance, upkeep and disaster management shall be

subject to the compliance of environmental safeguards

issued in this regard from time to time.”

6. The impugned notification was challenged on several grounds

before the NGT by filing the Original Application subject matter of

these appeals. Apart from other grounds, it was contended that the

impugned notification violated the directions issued by this Court in

the case of Deepak Kumar & Ors. v. State of Haryana & Ors1

.

Even the ground that the impugned notification was arbitrary and

violative of Article 14 of the Constitution of India was invoked. We

must note that in the Original Application, the specific challenge was

only to item 6 of the impugned notification.

7. By the impugned judgment, it was held that the exemption under

item 6 should strike a balance. The finding recorded on this aspect

in paragraph 8 of the impugned judgment reads thus:

“8. The second issue is exemption from requirement of

EC for extraction or sourcing or borrowing of ordinary

earth for the linear projects such as roads, pipelines,

etc and for dredging and de-silting of dams, reservoirs,

weirs, barrages, river and canals for the purpose of their

maintenance, upkeep and disaster management. It is

possible to take a view that the EC can be exempted

for these situations on account of assessment already

made or for extraction of earth for linear project

but such blanket exemption must be balanced by

sustainable development concept. The exemption

should strike balance and instead of being blanket

exemption, it needs to be hedged by appropriate

safeguards such as the process of excavation and

quantum. Similarly, in respect of item 7, safeguards

are required to be incorporated in terms of disposal

of dredged material. These aspects are not shown to

have been considered and the reply does not provide

any explanation thereon. Learned counsel for the

MoEFCC is also unable to provide any justification why

these aspects be not addressed and incorporated in the

1 [2012] 4 SCR 819 : (2012) 4 SCC 629

1256 [2024] 3 S.C.R.

Digital Supreme Court Reports

notification for ensuring sustainable development concept

which is required to be enforced by this Tribunal under

section 20 read with section 15 of the NGT Act, 2010.”

(emphasis added)

Accordingly, the Original Application was disposed of by directing

the Ministry of Environment, Forest and Climate Change (for short,

‘MoEF&CC’) to revisit the impugned notification within three months.

An application for review was filed, which was dismissed by the

second impugned order dated 24th December 2020.

8. Notice was ordered to be issued on 13th December 2021 on the

appeals. On 10th August 2023, submissions were heard, and the

judgment was reserved. After the judgment was reserved, the

respondent-Union of India filed an affidavit of Dr Sujit Kumar Bajpayee,

Joint Secretary, MoEF&CC, dated 12th September 2023. Along with the

affidavit, two documents were also filed on record. The first document

was the Office Memorandum dated 21st August 2023 issued by the

MoEF&CC, purportedly laying down the enforcement mechanism for

items 6 and 7 in the impugned notification. The second document

brought on record was the amended impugned notification. In view

of the issuance of the amended impugned notification, even after

the verdict was reserved, the parties were permitted to make further

submissions on the legality and validity of the amended impugned

notification.

SUBMISSIONS

9. The learned senior counsel appearing for the appellant submitted

that the object of the EP Act is to provide for the protection and

improvement of the environment. She invited our attention to Section

3 of the EP Act, which confers a power on the Central Government to

take such measures as it deems necessary or expedient for protecting

and improving the quality of the environment and preventing and

abating environmental pollution. She pointed out that the first EC

notification was issued in the exercise of powers conferred under subsection (1) and clause (v) of sub-section (2) of Section 3 of the EP

Act. Clause (v) empowers the Central Government to take measures

for restrictions of the areas, in which any industries, operations or

processes or class of industries, operations or processes shall not be

carried out or shall be carried out subject to certain safeguards. She 

[2024] 3 S.C.R. 1257

Noble M. Paikada v. Union of India

also invited our attention to the EP Rules and, in particular, Rule 5

thereof. It lays down that the Central Government may consider the

factors set out in sub-rule (1) while prohibiting or restricting the location

of industries and carrying out operations and processes in different

areas. She pointed out that before issuing the first EC notification,

the process laid down in sub-rule (3) of Rule 5 was followed.

10. The learned senior counsel invited our attention to a decision of this

Court in the case of Hanuman Laxman Aroskar v. Union of India2

.

She also relied upon a decision of this Court in the case of Deepak

Kumar1

. She pointed out that as a result of item 6, there will not

be any regulation of the extraction of ordinary earth for utilisation

in linear projects, such as, roads, pipelines, etc. She submitted that

such a blanket exemption will defeat the very object of enacting the

EP Act and, in particular, Section 3 thereof. She submitted that the

decision of this Court in the case of Deepak Kumar1 and subsequent

decisions mandated that there must be a requirement to obtain EC

for the minor minerals pertaining to materials used for linear projects.

The learned senior counsel submitted that allowing the extraction of

the earth in such an indiscriminate manner is wholly arbitrary and

violative of Article 14 of the Constitution of India.

11. Inviting our attention to the amended impugned notification, the

learned senior counsel pointed out that the substituted item 6

provides that extraction of ordinary earth for linear projects shall be

subject to compliance with the Standard Operating Procedure (SOP)

and safeguards issued in this regard from time to time. Thus, the

exemption remains. However, an SOP will be laid down to avail the

exemption. She urged that the substituted item 6 is more arbitrary.

12. The learned senior counsel also pointed out that the whole issue

was directed to be reconsidered under the impugned judgment.

But nothing has been placed on record to show that the Central

Government made reconsideration in true letter and spirit.

13. The learned senior counsel pointed out that the decision of this

Court in the case of Deepak Kumar1 still holds the field, which

directs that the leases of minor minerals, including their renewal

for an area less than 5 hectares, shall be granted by the States/

2 [2019] 5 SCR 916 : (2019) 15 SCC 401

1258 [2024] 3 S.C.R.

Digital Supreme Court Reports

Union territories only after getting EC. She submitted that the

impugned notification and the amended impugned notification,

insofar as item 6 is concerned, are completely contrary to the

directions issued by this Court in Deepak Kumar1. She also

urged that before publishing the draft of the impugned notification,

objections to the draft notification were not invited. She submits

that this action contravenes the provisions of sub-rule (3) of Rule

5 of the EP Rules.

14. The learned Additional Solicitor General appearing on behalf of the

respondent – Union of India, submitted that in view of the insertion of

Section 8B in the Mines and Minerals (Development and Regulation)

Act, 1957 (for short, ‘the MMDR Act’), the amendment to the first EC

notification was required to be made. Our attention was invited to

Section 8B, incorporated on 13th March 2020 and amended Section

8B, effective from 28th March 2021. She submits that the provisions

of the first EC notification must conform with the amended provisions

of the MMDR Act, and therefore, the amendments were necessitated.

She also pointed out that in terms of the impugned order, the matter

was placed before the Expert Appraisal Committee (EAC), non-coal

mining and EAC, MoEF&CC and others in a meeting. Thereafter, the

issue was deliberated in the meeting convened on 30th June 2022

under the chairmanship of the Joint Secretary of the concerned

department. She invited our attention to the minutes of the said

meeting held on 30th June 2022. She submitted that the ultimate

endeavour is to uphold the principles of sustainable development.

Relying upon the amended impugned notification, she submitted that

now the exemption granted by items 6 and 7 cannot be said to be

arbitrary, and it will be subject to compliance with the SOP issued

on this behalf from time to time. Therefore, safeguards have been

introduced, and the exemption is not blanket. She also pointed out

that the Office Memorandum dated 21st August 2023 takes care of

the safeguards. It was also submitted that the grant of exemption

from the first EC notification is a matter of policy for the Central

Government and no interference be called for with policy matters.

CONSIDERATION OF SUBMISSIONS

15. We have carefully considered the submissions. The EP Act

was brought into force on 19th November 1986. The statement

of objects and reasons of the EP Act specifically refers to the 

[2024] 3 S.C.R. 1259

Noble M. Paikada v. Union of India

substantive decline in environmental quality due to increasing

pollution, loss of vegetal cover, etc. It also notes the growing risk

of environmental accidents and threats to life support systems. It

refers to the decisions taken at the United Nations Conference on

the Human Environment held in Stockholm in June 1972. In the

said Conference, the world communities resolved to protect and

enhance the environmental quality. Clause (3) of the statement of

objects and reasons reads thus:

“(3) In view of what has been stated above, there

is urgent need for the enactment of a general

legislation on environmental protection which

inter alia, should enable co-ordination of activities

of the various regulatory agencies, creation of an

authority or authorities with advocate powers for

environmental protection, regulation of discharge of

environmental pollutants and handling of hazardous

substances, speedy response in the event of accidents

threatening environment and deterrent punishment to

those who endanger human environment, safety and

health.”

(emphasis added)

Even from the preamble of the EP Act, it is apparent that the

object is to provide protection to the environment and to improve

the environment. Section 3 of the EP Act confers power on the

Central Government to take measures to protect and improve the

environment. Sub-sections (1) and (2) of Section 3 read thus:

“3. Power of Central Government to take measures to

protect and improve environment.-

(1) Subject to the provisions of this Act, the Central

Government, shall have the power to take all such

measures as it deems necessary or expedient

for the purpose of protecting and improving

the quality of the environment and preventing

controlling and abating environmental pollution.

(2) In particular, and without prejudice to the

generality of the provisions of sub-section (1),

such measures may include measures with 

1260 [2024] 3 S.C.R.

Digital Supreme Court Reports

respect to all or any of the following matters,

namely:--

(i) co-ordination of actions by the State Governments,

officers and other authorities--

(a) under this Act, or the rules made thereunder,

or

(b) under any other law for the time being in

force which is relatable to the objects of

this Act;

(ii) planning and execution of a nation-wide

programme for the prevention, control and

abatement of environmental pollution;

(iii) laying down standards for the quality of

environment in its various aspects;

(iv) laying down standards for emission or discharge

of environmental pollutants from various sources

whatsoever: Provided that different standards for

emission or discharge may be laid down under

this clause from different sources having regard

to the quality or composition of the emission

or discharge of environmental pollutants from

such sources;

(v) restriction of areas in which any industries,

operations or processes or class of industries,

operations or processes shall not be carried

out or shall be carried out subject to certain

safeguards;

(vi) laying down procedures and safeguards for

the prevention of accidents which may cause

environmental pollution and remedial measures

for such accidents;

(vii) laying down procedures and safeguards for the

handling of hazardous substances;

(viii) examination of such manufacturing processes,

materials and substances as are likely to cause

environmental pollution; 

[2024] 3 S.C.R. 1261

Noble M. Paikada v. Union of India

(ix) carrying out and sponsoring investigations and

research relating to problems of environmental

pollution;

(x) inspection of any premises, plant, equipment,

machinery, manufacturing or other processes,

materials or substances and giving, by order, of

such directions to such authorities, officers or

persons as it may consider necessary to take

steps for the prevention, control and abatement

of environmental pollution;

(xi) establishment or recognition of environmental

laboratories and institutes to carry out the

functions entrusted to such environmental

laboratories and institutes under this Act;

(xii) collection and dissemination of information in

respect of matters relating to environmental

pollution;

(xiii) preparation of manuals, codes or guides relating

to the prevention, control and abatement of

environmental pollution;

(xiv) such other matters as the Central Government

deems necessary or expedient for the purpose

of securing the effective implementation of the

provisions of this Act.”

(emphasis added)

Section 3 of the EP Act must be read with Rule 5 of the EP Rules.

Rule 5 has been enacted to give effect to clause (v) of sub-section (2)

of Section 3 of the EP Act, which empowers the Central Government

to put restrictions on the areas in which industries, operations or

processes shall not be carried out or shall be carried out subject to

certain safeguards. Rule 5 of the EP Rules reads thus:

“5. Prohibition and Restriction on the location

of industries and the carrying on processes and

operations in different areas.

(1) The Central government may take into consideration

the following factors while prohibiting or restricting the 

1262 [2024] 3 S.C.R.

Digital Supreme Court Reports

location of industries and carrying on of processes

and operations in different areas-

(i) Standards for quality of environment in its

various aspects laid down for an area.

(ii) The maximum allowable limits of concentration

of various environmental pollutants (including

noise) for an area.

(iii) The likely emission or discharge of environmental

pollutants from an industry, process or operation

proposed to be prohibited or restricted.

(iv) The topographic and climatic features of an area.

(v) The biological diversity of the area which, in

the opinion of the Central Government needs

to be preserved.

(vi) Environmentally compatible land use.

(vii) Net adverse environmental impact likely to be

caused by an industry, process or operation

proposed to be prohibited or restricted.

(viii) Proximity to a protected area under the Ancient

Monuments and Archaeological Sites and

Remains Act, 1958 or a sanctuary, National

Park, game reserve or closed area notified as

such under the Wild Life (Protection) Act, 1972

or places protected under any treaty, agreement

or convention with any other country or countries

or in pursuance of any decision made in any

international conference, association or other body.

(ix) Proximity to human settlements.

(x) Any other factor as may be considered by

the Central Government to be relevant to the

protection of the environment in an area.

(2) While prohibiting or restricting the location of

industries and carrying on of processes and

operations in an area, the Central Government

shall follow the procedure hereinafter laid down. 

[2024] 3 S.C.R. 1263

Noble M. Paikada v. Union of India

(3) (a) Whenever it appears to the Central Government

that it is expedient to impose prohibition or

restrictions on the locations of an industry or

the carrying on of processes and operations

in an area, it may by notification in the Official

Gazette and in such other manner as the Central

Government may deem necessary from time to

time, give notice of its intention to do so.

(b) Every notification under clause (a) shall give

a brief description of the area, the industries,

operations, processes in that area about which

such notification pertains and also specify the

reasons for the imposition of prohibition or

restrictions on the locations of the industries and

carrying on of process or operations in that area.

(c) Any person interested in filing an objection

against the imposition of prohibition or restrictions

on carrying on of processes or operations as

notified under clause (a) may do so in writing to

the Central Government within sixty days from

the date of publication of the notification in the

Official Gazette.

(d) The Central Government shall within a period

of one hundred and twenty days from the date

of publication of the notification in the Official

Gazette consider all the objections received

against such notification and may within 1 [three

hundred and sixty-five days] from such day of

publication] impose prohibition or restrictions on

location of such industries and the carrying on

of any process or operation in an area.

(4) Notwithstanding anything contained in subrule (3), whenever it appears to the Central

Government that it is in public interest to do so,

it may dispense with the requirement of notice

under clause (a) of sub-rule (3).”

(emphasis added)

1264 [2024] 3 S.C.R.

Digital Supreme Court Reports

SCOPE OF ADJUDICATION

16. As far as the scope of adjudication in these appeals is concerned,

it is necessary to refer to the Original Application no.190 of 2020

filed by the appellant. There were three prayers made in the said

Original Application, which read thus:

"(a) Pass an Order quashing newly inserted Clause 6 of

the Impugned Notification dated 28.03.2020 as being

violative of Article 14 and 21 of the Constitution of

India, ultra vires the provisions of the EPA Act, 1986,

the EIA Notification dated 14.09.2006, and in further

violation of the Judgment passed by the Hon’ble

Supreme Court in the Deepak Kumar case (supra);

(b) Pass an appropriate Order quashing the Impugned

Notification dated 28.03.2020 as being violative of the

principles of Polluter Pay, Non-regression, sustainable

development and Precautionary Principle;

(c) Pass an appropriate Order directing the Respondent

not to allow any mining of ordinary earth without a

prior environmental clearance.”

From the prayers mentioned above in clauses (a) to (c), it is apparent

that the specific challenge was to item 6. Regarding clause (b),

perhaps the only ground of challenge taken in the application was

that no public interest was involved in exercising the power under

sub-rule (4) of Rule 5 of the EP Rules for dispensing with public notice.

17. After perusal of the impugned judgment, we find that the submissions

made by the learned counsel appearing for the appellant before the

NGT were not recorded therein. The order dated 29th June 2021

passed by this Court in the present appeals is relevant, which reads

thus:

“X(name masked), learned senior counsel appearing for

the appellant, submits that the learned counsel appearing

for the appellant before the National Green Tribunal

argued that exemption could not have been granted by

the Notification of the Ministry of Environment, Forest and

Climate Change which has not been considered by the

Tribunal. Y(name masked), learned counsel who appeared 

[2024] 3 S.C.R. 1265

Noble M. Paikada v. Union of India

before the Tribunal, is directed to file an affidavit that he,

in fact, raised this point before the Tribunal during the

course of hearing.

List the matter after two weeks.”

The advocate filed an affidavit dated 11th December 2021. In paragraph

5(a) of the affidavit, he stated thus:

“5. .. .. .. .. .. .. .. .. ..

(a) That the OA No. 190/2020 was listed for hearing before

the Hon’ble Tribunal by way of video conferencing on

28.10.2020. On that day the Deponent appeared before

the Hon’ble Tribunal and was granted a hearing. During

the course of the hearing the Deponent raised his

submissions inter-alia including the fact that the

Ministry of Environment and Forests did not have

the power to exempt the removal of ordinary earth

from the purview of the EIA Notification and that the

exemption as granted for the removal of ordinary earth

was illegal and ultra vires the Environment Protection

Act as well as the judgment of this Hon’ble Court in

Deepak Kumar’s Judgment. It is submitted that the

aforesaid point was raised, however the Hon’ble Tribunal

did not find merit in the said submission as is evident from

the judgment dated 28.10.2020.”

(emphasis added)

Thus, the Advocate-on-Record stated in the affidavit that what was

argued before the NGT was the challenge to the exemption granted

for the removal of ordinary earth for linear projects. We may note

here that item 7 in the substituted Appendix-IX brought on record by

the impugned notification was already there as item 6 in Appendix-IX

to the second EC notification dated 15th January 2016. The appellant

did not challenge the notification dated 15th January 2016. Even if

we set aside or strike down item 7 regarding dredging/desilting in the

impugned notification, it will continue to exist as item 6 in the second

EC notification. The second EC notification is not under challenge.

Therefore, we restrict the challenge to item 6 in the substituted

Appendix-IX to the impugned notification.

1266 [2024] 3 S.C.R.

Digital Supreme Court Reports

CHALLENGE TO ITEM 6 IN THE IMPUGNED NOTIFICATION

Failure to follow the procedure prescribed by sub-rule (3) of

Rule 5

18. We have already quoted Rule 5 of the EP Rules. There is no

dispute that the first EC notification, the second EC notification and

the impugned notification were issued in the exercise of powers

under sub-rule (1) of Rule 5 of the EP Rules. Sub-rule (2) of Rule

5 provides that while passing an order prohibiting or restricting the

location of industries and carrying on processes and operations, the

Central Government shall follow the procedure laid down in Rule 5.

Sub-rule (3) of Rule 5 requires the Central Government to publish

a notice of its intention to do so in the official Gazette and in such

other manner as the Central Government deems fit. Any person

interested is entitled to file objections against the proposed prohibition

or restriction. The Central Government is required to consider the

objections before issuing the final notification. The said procedure

was followed before publishing the first EC notification.

19. Sub-rule (4) of Rule 5 empowers the Central Government to dispense

with the requirement of publication of notice under sub-rule (3) of Rule 5

when it appears to the Central Government that it is in the public interest

to do so. Thus, sub-rule (4) of Rule 5 is an exception to sub-rule (3).

The exception can be invoked only on the grounds of public interest.

20. Now, we turn to the impugned notification dated 28th March 2020.

The recitals of the said notification are important, which read thus:

“S.O. 1224(E).—WHEREAS, vide the Mineral Laws

(Amendment) Act, 2020 (2 of 2020), the Mines and Minerals

(Development and Regulation) Act, 1957 (67 of 1957)

(hereinafter referred to as MMDR Act) has been amended

with effect from the 10th day of January, 2020 and, inter

alia, new section 8B relating to the provisions for transfer

of statutory clearances has been inserted;

AND WHEREAS, sub-section (2) of section 8B of the

MMDR Act provides that notwithstanding anything

contained in this Act or any other law for the time being

in force, the successful bidder of mining leases expiring

under the provisions of sub-sections (5) and (6) of section

8A and selected through auction as per the procedure

provided under this Act and the rules made thereunder, 

[2024] 3 S.C.R. 1267

Noble M. Paikada v. Union of India

shall be deemed to have acquired all valid rights, approvals,

clearances, licences and the like vested with the previous

lessee for a period of two years;

AND WHEREAS, sub-section (3) of section 8B of the

MMDR Act provides that notwithstanding anything

contained in any other law for the time being in force,

it shall be lawful for the new lessee to continue mining

operations on the land, in which mining operations were

being carried out by the previous lessee, for a period of two

years from the date of commencement of the new lease;

AND WHEREAS, in pursuance of the aforesaid amendment

to the MMDR Act, the Central Government deems it

necessary to align the relevant provisions of the notification

of the Government of India in the erstwhile Ministry of

Environment and Forests number S.O. 1533 (E), dated

the 14th September, 2006 (hereinafter referred to as the

EIA Notification, 2006);

AND WHEREAS, the Ministry of Environment, Forest

and Climate Change is in the receipt of representations

for waiver of requirement of prior environmental

clearance for borrowing of ordinary earth for roads;

and manual extraction of lime shells (dead shell),

shrines, etc., within inter tidal zone by the traditional

community;

Now, therefore, in exercise of the powers conferred

by sub-section (1) and clause (v) of sub-section (2) of

section 3 of the Environment (Protection) Act, 1986 (29 of

1986), read with sub-rule (4) of rule 5 of the Environment

(Protection) Rules, 1986, the Central Government, after

having dispensed with the requirement of notice under

clause (a) of sub-rule (3) of the rule 5 of the said rules,

in public interest, and in supersession of the notification

number S.O. 4307(E), dated the 29th November, 2019,

hereby makes the following further amendments in the

EIA Notification, 2006, namely:-

.. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”

(emphasis added)

1268 [2024] 3 S.C.R.

Digital Supreme Court Reports

By the impugned notification, after sub-paragraph (2) of paragraph

11 of the first EC notification, sub-paragraph (3) was inserted to give

effect to Sections 8A and 8B of the MMDR Act. An entry has been

made in the Schedule against Item 1(a) in column (5) for inserting

a clause dealing with the evacuation or removal and transportation

of already mined out material. Appendix IX, which contains the list

of projects exempted from obtaining EC, was substituted by the

impugned notification.

21. We have quoted above the recitals of the impugned notification. The

first three recitals refer to the necessity of giving effect to Sections

8A and 8B of the MMDR Act. Thereafter, the last recital refers to

the Ministry receiving representations for waiver of the requirement

of prior EC for borrowing of ordinary earth for roads. After that,

without giving any details, it is mentioned that in the public interest,

the requirement of publication of notice under sub-rule (3) of Rule

5 was dispensed with. At this stage, we may refer to the relevant

ground specifically taken in the Original Application filed by the

appellant before the NGT. Ground J was specifically taken on this

aspect, which reads thus:

“J. Because the Respondent has deliberately and

ostensibly circumvented the requisite procedures before

issuing the Impugned Notification, including evading

previous publication, inviting public objections under Rule

5(3) of the EP Rules, 1986, and by wrongly exercising its

powers under Rule 5(4) of the EP Rules under the garb

of “public interest” during the Covid-19 national lockdown

without offering even a shred of reasoning for its actions.

It is most respectfully submitted that the amendments

brought forth by the Impugned Notification serve and

further the interest of private miners and contractors, and

the actions of ratifying such illegal and mala fide acts of

disregard and disobedience to environmental norms is in

fact against public interest at large.”

22. We have carefully perused the counter affidavit filed by the MoEF&CC

before the NGT. The said affidavit does not deal with Ground J at all.

It does not specify or set out reasons for concluding that in the public

interest, the requirement of publication of prior notice was needed to

be dispensed with. It is pertinent to note that before the issue of the

second EC notification by which Appendix-IX was incorporated, the 

[2024] 3 S.C.R. 1269

Noble M. Paikada v. Union of India

procedure of inviting objections to the draft notification was followed,

and the objections were considered. There is no reason to dispense

with this important requirement before publishing the impugned

notification. Article 21 guarantees a right to live in a pollution-free

environment. The citizens have a fundamental duty to protect and

improve the environment. Therefore, the participation of the citizens

is very important, and it is taken care of by allowing them to raise

objections to the proposed notification. After all, citizens are major

stakeholders in environmental matters. Their participation cannot

be prevented by casually exercising the power under sub-rule (4)

of Rule 5.

23. In the present appeals, the questions of law (e) and (f) have been

incorporated regarding the illegal invocation of the power under subrule (4) of Rule 5 of the EP Rules. In the grounds of the challenge,

ground EE has been taken explicitly on this aspect. We have perused

the counter affidavit filed by the MoEF&CC in these appeals. We

find from the counter affidavit that the contention raised regarding

the illegal invocation of power under sub-rule (4) of Rule 5 has not

been dealt with. We are not going into the question of whether it

was necessary for the Central Government to specify reasons in the

impugned notification itself why it came to the conclusion that in the

public interest, the requirement of public notice should be dispensed

with. However, the reasons for the said conclusion ought to have been

set out in the counter affidavit filed before the NGT or, at least, in the

counter affidavit filed before this Court. The document recording the

satisfaction of the competent authority about the existence of public

interest and the nature of the public interest ought to have been

produced by the Ministry. But, no such document was produced.

Only one conclusion can be drawn. The drastic decision to invoke

sub-rule (4) of Rule 5 was made without any application of the mind.

Hence, the decision-making process has been vitiated.

24. The impugned notification was issued two days after the nationwide

lockdown was imposed due to the COVID-19 pandemic. At that time,

the work of linear projects, such as roads, pipelines, etc., had come

to a grinding halt. So, there was no tearing hurry to modify the EC

notifications. Apart from the fact that no reasons have been assigned

in the counter affidavit filed by the Central Government for coming

to the conclusion that in the public interest, the requirement of prior

publication of notice was required to be dispensed with, we fail to 

1270 [2024] 3 S.C.R.

Digital Supreme Court Reports

understand the undue haste shown by the Central Government in

issuing the impugned notification during the nationwide lockdown.

Therefore, the inclusion of item 6 of the substituted Appendix-IX

will have to be held illegal. We have already given reasons for not

dealing with the challenge to item 7 of the impugned notification.

ARBITRARINESS

25. There is one more important ground for striking down item 6. But

for item 6 in Appendix-IX to the impugned notification, for extraction,

sourcing, or borrowing of ordinary earth for linear projects, prior EC

would have been required in terms of the first EC notification. The very

object of issuing the first EC notification incorporating the mandatory

requirement of obtaining EC for projects was that the damage to the

environment must be minimised while implementing projects. When

an exception is sought to be carved out by incorporating AppendixIX to the requirement of obtaining EC in the first EC notification, the

exception must be specific. Item 6 grants exemption for “extraction

or sourcing or borrowing of ordinary earth for linear projects, such as

roads, pipelines, etc.” There is no specification about the quantum of

ordinary earth, which can be extracted on the basis of the exemption.

There is no specification of the area which can be used to extract

ordinary earth. It is also not provided that only that quantity of ordinary

earth, which is required to implement the linear projects, is exempted.

Importantly, “linear projects” have not been defined. Without the

definition, it is difficult to imagine which projects will be termed linear

projects. The term “linear projects” is very vague. The process to

be adopted for excavation has not been set out. Thus, item 6 is a

case of completely unguided and blanket exemption, which is, per

se, arbitrary and violative of Article 14 of the Constitution of India.

There is no provision for setting up an authority which will decide

whether a particular linear project is covered by item 6.

26. As stated earlier, during the pendency of the appeals, an amendment

was made to item 6 by the notification dated 30th August 2023.

Even the amended impugned notification does not elaborate on

the concept of linear projects. The only addition to item 6 is that

the extraction, sourcing or borrowing shall be subject to compliance

with SOP and environmental safeguards issued in this regard from

time to time. The authority to issue the SOP and environmental

safeguards has not been specified. No provision has been made 

[2024] 3 S.C.R. 1271

Noble M. Paikada v. Union of India

to enforce the SOP and environmental safeguards. No restriction is

imposed on the quantum of ordinary earth, which can be extracted

for linear projects. Therefore, even the amended item 6 continues

to suffer from the same vice of arbitrariness, which Article 14 of the

Constitution of India prohibits.

27. The learned Additional Solicitor General placed reliance on the Office

Memorandum dated 21st August 2023. It provides that before carrying

on activities mentioned in entry 6, the project proponents must notify

the State Pollution Control Board/Pollution Control Committees. The

State Pollution Control Boards are required to monitor the compliance

status of the SOP/environmental safeguards. As entry 6 is arbitrary,

the Office Memorandum is of no consequence. Hence, on account of

the violation of Article 14, item 6 in the impugned notification, as well

as the amended impugned notification, will have to be struck down.

As noted earlier, the object of the EP Act is to protect and improve the

environment. Apart from the illegality committed by non-compliance

with sub-rule (3) of Rule 5 of the EP Rules, the exemption granted

without incorporating any safeguards is completely unguided and

arbitrary. Grant of such blanket exemption completely defeats the

very object of the EP Act.

NON-COMPLIANCE WITH THE DIRECTIONS OF THE NGT

28. In paragraph 8 of the impugned order, which we have quoted earlier,

the NGT observed that the blanket exemption needs to be hedged

by appropriate safeguards, such as, the process of excavation

and quantum. Therefore, in paragraph 9, a direction was issued

to MoEF&CC to revisit the impugned notification in the light of the

observations made in paragraph 8. Within the three months provided

by the NGT to do so, no steps had been taken to revisit item 6 of

the impugned notification.

29. The Ministry has filed an additional affidavit dated 18th July 2023,

and reliance has been placed on the guidelines for sand mining.

As far as item 6 is concerned, in the counter affidavit, reliance

was placed on the Office Memorandum dated 8th August 2022,

purportedly issued in terms of the directions issued in paragraph 9 of

the impugned judgment. It records that item 6 shall be subject to the

SOP attached to the said Office Memorandum. We have perused the

said SOP. We find that the SOP creates no regulatory machinery to

ensure the implementation of the terms of the SOP. The SOP does 

1272 [2024] 3 S.C.R.

Digital Supreme Court Reports

not refer to item 6 at all; it merely refers to the activities relating to

the identification to borrow areas to obtain earth or soil materials. It

does not refer to extracting ordinary earth for linear projects, such

as roads, pipelines, etc. Therefore, the said SOP can hardly be said

to be in terms of what the NGT ordered the Central Government to

do in terms of paragraphs 8 and 9.

30. We are not entertaining a challenge to item 7 of the impugned

notification. As none of the respondents have challenged the

impugned notification, they will have to implement the directions

issued in terms of paragraph 9 of the impugned judgment regarding

item 7.

31. Thus, notwithstanding the specific directions issued in paragraph

8 read with paragraph 9 of the impugned judgment, no safeguards

have been provided, such as laying down processes, the mode and

the manner of excavation and quantum.

32. Therefore, we have no hesitation in striking down item 6 of the

substituted Appendix-IX forming part of the impugned notification

dated 28th March 2020 and item 6 of the amended impugned

notification dated 30th August 2023. Accordingly, we quash item 6

in the two notifications above.

33. The appeals are, accordingly, partly allowed on above terms. There

will be no order as to costs.

Headnotes prepared by: Divya Pandey Result of the case:

Appeals partly allowed.

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:

* 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.

Digital Supreme Court Reports

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 

1232 [2024] 3 S.C.R.

Digital Supreme Court Reports

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 

1234 [2024] 3 S.C.R.

Digital Supreme Court Reports

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. 

1236 [2024] 3 S.C.R.

Digital Supreme Court Reports

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.

1238 [2024] 3 S.C.R.

Digital Supreme Court Reports

(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, 

1240 [2024] 3 S.C.R.

Digital Supreme Court Reports

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;

1242 [2024] 3 S.C.R.

Digital Supreme Court Reports

(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 

1244 [2024] 3 S.C.R.

Digital Supreme Court Reports

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

1246 [2024] 3 S.C.R.

Digital Supreme Court Reports

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.

1248 [2024] 3 S.C.R.

Digital Supreme Court Reports

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.