Del HC | S. 19(1) of JJ Act held mandatory; however, non-compliance by Children’s Court held curable irregularity

Delhi High Court: Sanjeev Sachdeva, J. declined to quash criminal proceedings pending against the petitioner even while holding that Section 19(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 was a mandatory provision and the Children’s Court did not comply with the same.

The petitioner was alleged to have committed penetrative sexual assault on the victim. He was booked under Sections 342 376 IPC, and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The Juvenile Justice Board completed the preliminary assessment in terms of Section 15 of the JJ Act and held the petitioner was required to face trial as an adult. The case was transferred to the Children’s Court which framed charges as aforementioned. The petitioner, represented by Harsh Prabhakar and Anirudh Tanwar, Advocates, contended that the Children’s Court failed to comply with the mandatory requirement of Section 19(1)of the JJ Act and as such, the proceedings were liable to be quashed. Per contra, Hiren Sharma, APP appearing for the State, opposed the petition.

The question before the High Court was as to whether Section 19(1) of the JJ Act is mandatory or directory and the effect of non-compliance thereof. Notably, in terms of Section 19(1), after receipt of the preliminary assessment from the Board under Section 15, Children’s Court is to decide: (i) as to whether there is need for trial of the child as an adult as per the provisions of CrPC, and/or (ii) there is no need for the trial of the child as an adult, in which case, it shall conduct an inquiry as a Board and to pass orders in accordance with Section 18.

The Court observed: “The expression used in Section 19(1) ‘may decide’. The expression ‘may’ used in Section 19 does not give an option to the Children’s Court to decide or not to decide in terms of Section 19, but the expression ‘may decide’ is an option to the Children’s Court to chose between option (i) and option (ii) i.e. as to whether there is need for trial of the child as an adult or there is no need for trial of the child as an adult.” It was held that this becomes clear when Rule 13 of the JJ Model Rules, 2016 is examined.

The Court held: “Reading of Rule 13 in conjunction with Section 19 of JJ Act clearly shows that it is obligatory on the part of the Children’s Court to take a decision after receipt of the preliminary assessment report from the Board as to whether there is need for trial of the child as an adult or as a child. Appropriate speaking order recording reasons for arriving at the conclusion is to be passed by the Children’s Court.”

Admittedly, in the present case, there was non-compliance with the requirement of Section 19(1) by the Children’s Court. However, the Court was of the opinion that the same would not vitiate the proceedings thereafter undertaken, but would be an irregularity which was curable. The reason being, that in both eventualities, i.e. trial as an adult and trial as a child, the proceedings have to continue before the Children’s Court. In terms of Rule 13(7), in case the Children’s Court decides that there is no need for a trial of the child as an adult, then, it has to conduct an inquiry as if it were functioning as a Board and follow the procedure for trial of the summon cases. Whereas, in case the children’s Court decides to try the child as an adult, then, it has to conduct the trial following the procedure of trial by Sessions Court. in either eventually, charge/notice which is to be framed on the same set facts, would not be altered in so far as the offence is concerned. The only difference is as to the procedure to b followed by the Children’s Court for trial.

Finding support for the position taken by it from the Judgments of the Supreme Court in Willie (William) Slaney v. State of M.P., (1995) 2 SCR 1140 and Supdt. and Remembrancer of Legal Affairs v. Anil Kumar Bhunja(1979) 4 SCC 274, the High Court held that in the present case there was no prejudice caused to the petitioner. In such view of the matter, the Court found to the ground to interfere with the impugned order of framing charges or the proceedings conducted thereafter.

However, since the Children’s Court had not passed any order in terms of Section 19 read with Rule 13(1) and Rule 13(6), the children’s Court was directed to pass an order in terms thereof. The petition was disposed of accordingly.[CCL L.K v. State, 2019 SCC OnLine Del 9075, decided on 09-07-2019]

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