Himachal Pradesh High Court
Reserved On: 01.03.2025 vs State Of H.P on 12 March, 2025
2025:HHC:5736
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 376 of 2019
Reserved on: 01.03.2025
Date of Decision: __.03.2025
A …Appellant
Versus
State of H.P. …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant : Ms Anu Tuli, Advocate.
For the Respondent : Mr. Jitender K. Sharma,
Additional Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 25.5.2019, passed by learned Sessions Judge, Special Court
(POCSO Act), Kinnaur, H.P., vide which the appellant (child in
conflict with law ‘CCL’ before learned Trial Court) was convicted
of the commission of offences punishable under Sections 376
and 342 of the Indian Penal Code (IPC) and Section 4 of
Protection of Children from Sexual Offences Act (POCSO Act) and
was sentenced as under:-
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Under Section 376 of To suffer rigorous imprisonment
IPC/Section 4 of POCSO Act. for a period of seven years, pay a
fine of ₹10,000/- and in default of
payment of fine, to undergo simple
imprisonment for one year.
Under Section 342 of IPC To suffer simple imprisonment for
one year, pay a fine of ₹1,000/-
and in default of payment of fine,
to undergo further simple
imprisonment for three months.
(Parties shall hereinafter be referred to in the same manner as they
were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan against the CCL for
the commission of offences punishable under Sections 376, 342
and 506 of IPC and Section 4 of the POCSO Act. It was asserted
that the victim and her younger brother had gone to fetch water
on 2.11.2016 at some distance from the village. The CCL came to
the spot in a state of intoxication. He dragged the victim into a
cowshed near the tap and raped her. He bolted the cowshed and
went away from the spot. The victim’s sister searched for her.
She found someone crying inside the cowshed. She opened the
door. The victim reached her home and narrated the incident to
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her father. The police registered the FIR (Ex.PW13/F) and
conducted the investigation. The police filed a charge sheet
against the CCL after the completion of the investigation before
the Juvenile Justice Board.
3. The Juvenile Justice Board found that CCL was more
than 16 years of age but less than 18 years of age, and he had
committed a heinous offence within the meaning of Section 2(33)
of the Juvenile Justice (Care and Protection) Act, 2015 (JJ Act).
Hence, the preliminary assessment was to be conducted. Learned
Principal Magistrate, vide order dated 28.2.2017, held that MLC
of CCL shows that he had the physical capacity to commit the
offence. He had passed 10+1 class. Thus, he was physically and
mentally fit to commit the offence. There was nothing to show
that he was unable to understand the consequence of his act. The
CCL made a statement before the Board showing that he was
physically and mentally fit to commit the offence. His counsel
did not object to the case being committed to the learned Special
Judge under Section 18(3) of the Juvenile Justice Act. Hence, the
case was committed to the learned Special Judge.
4. Learned Special Judge framed the charges against the
CCL for the commission of offences punishable under Sections
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376, 342 and 506 of IPC and Section 4 of the POCSO Act. The
prosecution evidence was led. The learned Special Judge
convicted and sentenced the CCL for the commission of the
offences as aforesaid after the conclusion of the trial.
5. Being aggrieved from the judgment passed by the
learned Trial Court, the CCL has approached this Court by filing
the present appeal.
6. I have heard Ms Anu Tuli, learned counsel for the CCL
and Mr Jitender Sharma, learned Additional Advocate General,
for the respondent-State.
7. Ms Anu Tuli, learned counsel for the CCL, submitted
that the Juvenile Justice Board and the learned Special Judge
failed to conduct proper proceedings. The case of the CCL could
not have been sent to the learned Special Judge merely on the
admission of the counsel without conducting the preliminary
inquiry. Learned Special Judge was also bound to conduct the
inquiry. The proceedings against the CCL are vitiated. CCL has
undergone imprisonment awarded to him. The CCL is entitled to
an acquittal because of the absence of the inquiry conducted by
the learned Juvenile Justice Board and learned Special Judge. She
relied upon the judgment of the Hon’ble Supreme Court in
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Thirumoorthy v. State, 2024 SCC OnLine SC 375, in support of her
submission.
8. Mr. Jitender Sharma, learned Additional Advocate
General for the respondent-State, submitted that the learned
counsel for the CCL has himself consented to send the case to the
learned Special Court for trial, and no grievance can be made by
the CCL. He had committed a heinous offence and was rightly
tried by learned Special Judge. There is no infirmity in the
procedure adopted by the learned Courts below. Hence, he prayed
that the present appeal be dismissed.
9. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
10. Section 15 of the Juvenile Justice Act deals with the
procedure for conducting the preliminary assessment regarding
the mental and physical capacity to commit the offence, the
ability to understand the consequence of the offence and the
circumstances in which the offence was committed. It reads as
under:-
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
6
2025:HHC:5736physical capacity to commit such offence, ability to
understand the consequences of the offence and the
circumstances in which he allegedly committed the
offence, and may pass an order in accordance with the
provisions of subsection (3) of section 18:
Provided that for such an assessment, the Board may take
the assistance of experienced psychologists or psycho-
social workers or other experts.
Explanation. –For the purposes of this section, it is
clarified that preliminary assessment is not a trial, but is
to assess the capacity of such a 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 Criminal
Procedure Code, 1973:
Provided that the order of the Board to dispose of the
matter shall be appealable under sub-section (2) of
section 101:
Provided further that the assessment under this section
shall be completed within the period specified in section
14.”
11. Section 18 (3) of the Juvenile Justice Act provides that
when the Board is satisfied after the preliminary assessment that
the child has committed a heinous offence, and there is a need
for a trial of the said child as an adult, then the Board may
transfer the trial of the case to children’s Court having
jurisdiction. It reads as under: –
18. Orders regarding child found to be in conflict with law.
—
xxxx
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(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.
12. It was held in Barun Chandra Thakur v. Bholu, (2023)
12 SCC 401 that the order of preliminary assessment decides
whether a CCL is to be tried as an adult by the Children’s Court or
by the Board itself. These consequences are serious in nature.
Therefore, a social investigation report and the report of the
Psychologist are required to be called. The Board can conduct the
inquiry by adopting any procedure, but it cannot determine the
capacity to commit the crime simply on the basis of the
education record. The word “may” in Section 15(1) of the Act
regarding taking assistance from experienced psychologist,
psycho-social workers or other experts has to be read as
mandatory. It was observed:-
“83. Therefore, looking to the purpose of the 2015 Act and
its legislative intent, particularly to ensure the protection
of the best interest of the child, the expression “may” in
the proviso to Section 15(1) thereof and the requirement of
taking assistance of experienced psychologists or psycho-
social workers or other experts would operate as
mandatory unless the Board itself comprises of at least
one member who is a practising professional with a degree
in child psychology or child psychiatry. Moreover, in case
the Board, in view of its own composition with at least one
member, who is a practising professional with a degree in
child psychology or child psychiatry, chooses not to take
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2025:HHC:5736such assistance, it would record specific reasons
therefor.”
13. Section 19 of the Juvenile Justice Act deals with the
power of the Children’s Court and reads that after the receipt of
the preliminary assessment from the Board, the Children’s Court
may decide if there is a need for a trial of the child as an adult and
pass an appropriate order considering the special needs of the
child or may hold that there is no need for the trial of the child as
an adult and may conduct an inquiry as a Board. It reads as
under:-
19. Powers of Children’s Court.–(1) After the receipt of
the preliminary assessment from the Board under Section
15, the Children’s Court may decide that–
(i) there is a need for a trial of the child as an adult as per
the provisions of the Criminal Procedure Code, 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 a 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)……….”
14. It was laid down by the Hon’ble Supreme Court in
Ajeet Gurjar v. State of M.P., (2023) 15 SCC 678, that an inquiry
must be conducted by the Board regarding the mental and
physical capacity of the juvenile in conflict with the law about his
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ability to comprehend the repercussions of the offence and the
circumstances under which it was committed. The Children’s
Court is also required to conduct a further inquiry under Section
19. It was observed:-
“7. What is required to be done by the Juvenile Justice
Board is holding an inquiry for making a preliminary
assessment with regard to the mental and physical
capacity of the juvenile in conflict with the law to commit
such offence, ability to understand the consequences of
the offence and circumstances in which the juvenile has
allegedly committed the offence. Based on the preliminary
assessment, sub-section (3) of Section 18 empowers the
Juvenile Justice Board to pass an order for transferring the
trial of the case to the Children’s Court, which has
jurisdiction to try such offences. Thus, the order of
transfer is based on only a preliminary assessment.
9. There are two parts to sub-section (1) of Section 19. The
first part requires the Children’s Court to decide whether
there is a need for trial of the child as an adult as per the
provisions of the Criminal Procedure Code, 1973. If the
Court is satisfied that the child needs to be tried as an
adult as per the provisions of CrPC, the Children’s Court
can proceed with the trial and thereafter pass an
appropriate order subject to the provisions of Sections 19
and 21 of the JJ Act.
10. Clause (ii) of sub-section (1) of Section 19 is very
crucial which indicates that though the word “may” have
been used in the opening part of sub-section (1) of Section
19, the same will have to be read as “shall”. Clause (ii)
provides that after examining whether there is a need for a
trial of the child as an adult, if the Children’s Court comes
to the conclusion that there is no need for the 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
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2025:HHC:5736and his trial as a juvenile by the Juvenile Justice Board has
different consequences.
11. Therefore, holding an inquiry in terms of clause (i) of
sub-section (1) of Section 19 is not an empty formality.
The reason is that if the Children’s Court comes to the
conclusion that there is no need to try the child as an
adult, he will be entitled to be treated differently in the
sense that action can be taken against him only in terms of
Section 18 of the JJ Act.”
15. It was submitted that these judgments were delivered
in the year 2023 whereas the trial was concluded in the year 2019
and the Juvenile Justice Board had passed the order in 2017. The
judgment of a Court cannot be applied retrospectively. This
submission is only stated to be rejected. It was laid down by the
Hon’ble Supreme Court in Kanishk Sinha v. State of W.B., 2025 SCC
OnLine SC 443 that law made by a legislature is always
prospective, whereas the law interpreted by the Constitutional
Court is always retrospective unless the judgment specifically
states that it will operate prospectively. It was observed:-
“Now the law of prospective and retrospective operation is
absolutely clear. Whereas a law made by the legislature is
always prospective in nature unless it has been specifically
stated in the statute itself about its retrospective
operation, the reverse is true for the law which is laid
down by a Constitutional Court, or law as it is interpreted
by the Court. The judgment of the Court will always be
retrospective in nature unless the judgment itself
specifically states that the judgment will operate
prospectively. The prospective operation of a judgment is
normally done to avoid any unnecessary burden to
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2025:HHC:5736persons or to avoid undue hardships to those who had
bona fidely done something with the understanding of the
law as it existed at the relevant point of time. Further, it is
done not to unsettle something which has long been
settled, as that would cause injustice to many.”
16. Therefore, the submission that a judgment delivered
in 2023 cannot be applied to the proceedings conducted in the
years 2017 and 2019 is not acceptable.
17. It was laid down by the Hon’ble Supreme Court in
Thirumoorthy v. State, 2024 SCC OnLine SC 375 that where the
Children’s Court had not conducted the inquiry, the proceedings
were bad. The CCL cannot be asked to be retried as such an
inquiry cannot be conducted because of his advanced stage. It
was observed:-
“32. There is no dispute on the aspect that the offences
with 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 the 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 the
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2025:HHC:5736trial of summons case under CrPC. Under the 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.
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 Pradesh 2023 SCC OnLine SC 1255.
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 a 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
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conducted under Section 15, so as to find out whether the
accused-appellant was required to be tried as an adult.
38. In the 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 the JJ
Act.
40. Thus, on the face of the record, the proceedings
undertaken by the Sessions Court in conducting a trial of
the CICL, convicting and sentencing him as above are in
gross violation of the mandate of the Act and thus, the
entire proceedings stand vitiated.
41. It seems that pursuant to the trial being concluded, the
trial Court realized the gross illegality in the proceedings
and thus, in an attempt to give a vestige of validity to the
grossly illegal proceedings conducted earlier, an exercise
was undertaken to deal with the accused-appellant as per
the provisions of the JJ Act on the aspect of sentencing.
However, ex facie, the said action which seems to be taken
by way of providing an ex post facto imprimatur to the
grossly illegal trial does not stand to scrutiny because the
very foundation of the prosecution case is illegal to the
core.
42. All the proceedings taken against the accused
appellant are vitiated as being in total violation of the
mandatory procedure prescribed under the JJ Act.
xxxxx
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
14
2025:HHC:5736novo 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
the 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.
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.”
18. In the present case, the Juvenile Justice Board had not
conducted any effective inquiry and relied upon merely the
educational qualification of the juvenile without taking
assistance of the psychologist. Learned Special Judge had also
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not conducted any inquiry as required under Section 19 of the JJ
Act. Hence, the proceedings against the CCL are non-est. The CCL
has also undergone the sentence imposed by learned Special
Judge, and no fruitful purpose would be served by sending the
matter to the Juvenile Justice Board to conduct the preliminary
inquiry and thereafter to conduct a fresh trial. This would be a
sheer abuse of the process of the Court because the CCL has
already undergone the sentence imposed upon him by the
learned Special Judge. CCL would have to face the ordeal of trial
without any fruitful purpose because of having undergone the
sentence imposed upon him. Therefore, the proceedings are to
be quashed as per the judgment in Thirumoorthy (supra).
19. Consequently, the present appeal is allowed, and the
judgment and order dated 25.5.2019, passed by the learned
Special Judge are ordered to be set aside.
20. The present appeal stands disposed of and so are the
pending applications if any.
21. The record of the learned Courts below be returned
with a copy of this order.
(Rakesh Kainthla)
Judge
12th March, 2025
(Chander)