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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: High Court of Jharkhand

Reading of Rule 13 in conjunction with Section 19 of Juvenile Justice Act, 2015 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. No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code (45 of 1860) or any other law for the time being in force. The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker. The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail: Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety. In the context of case number Cr.M.P. No. 561 of 2021 Ajay Bhuiyan @ Ajay Kumar Bhuiyan vs The State Of Jharkhand on 25 August, 2021. The judgement was passed by HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI. The brief facts of the case are as follows: The case has been instituted on the basis of the fardbeyan of the informant Reena Devi, alleging therein that she used to work as a cook in Rajhara Gurukul. It is further alleged that on 03.8.2017 at about 7.00 P.M., she along with her colleague Kaushlya Devi, wife of Rajesh Prasad Sao were cooking food for the children of the Gurukul then one Jitendra Singh, the student of the said Gurukul came there with Ajay Bhuiyan (petitioner). It is further alleged that at that time Ayushi Kumar @ Khushi was standing there then the said Ajay Bhuiyan told her to take food with him, thereafter, the said Ayushi ate food with the petitioner. Thereafter the informant went to bathroom after leaving them. It is further alleged that at about 8 P.M. when the informant saw that all the students of the Gurukul were eating food, but the said Ayushi was not there, thereafter she along with Kaushlya Devi, Awadhesh Munda, Gopal Munda and Jitendra Singh made hectic search for the said Ayushi and after finding no clue, the informant returned to Gurukul and further tried to search her, in the meantime at about 10.00 hrs. Ajay Bhuiyan and Ayushi were coming from Panchayat Bhawan situated at Gaushi College. On enquiry, the said Ayushi started weeping in the meantime, Ajay Bhuiyan also came there. The informant asked the reason for weeping from Ayushi, then Ayushi told that the said Ajay Bhuiyan assaulted her and was strangulating her. The said Ayushi also showed her private part indicating ache in her private part. It is also alleged that the informant found blood stained in the cloth of Ayushi and it was also found that the said Ajay Bhuiyan committed wrong with the said Ayushi. On the basis of these allegations, the instant case has been lodged against the petitioner under Section 376 of the Indian Penal Code and Sections 4/8 of the POCSO Act on 04.08.2017. This criminal miscellaneous petition has been filed for quashing of the order dated 16.06.2020, passed by the learned Principal Magistrate, Juvenile Justice Board, Latehar, whereby by way of invoking power under Section 18(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015, transferred the trial of the case to the learned Children’s Court, Latehar and also for quashing of the order dated 29.01.2021, whereby the surrender-cum-bail petition, filed by the petitioner has been rejected. The prayer for quashing of the order dated 03.02.2021 has also been made, by which, charge has been re-framed under Section 376 of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’), in connection with Children Court Case No. 03 of 2020, pending in the Court of learned Additional sessions Judge-I-cum-Children’s Court, Latehar. 

The main point argued by learned counsel for the petitioner was that Section 19(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 has not been taken care of and straightway this petitioner has been treated as an adult and proceeded in that direction. He further submitted that after transfer the case to the Court of Sessions, again the charge has been framed, which is bad in law. For the ready reference, Rule 13 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 reads as follows:-Procedure in relation to Children’s Court and Monitoring Authorities.-

(1) Upon receipt of preliminary assessment from the Board the Children’s Court may decide whether there is need for trial of the child as an adult or as a child and pass appropriate orders.

(2) Where an appeal has been filed under sub-section (1) of section 101 of the Act against the order of the Board declaring the age of the child, the Children’s Court shall first decide the said appeal.

(3) Where an appeal has been filed under sub-section (2) of section 101 of the Act against the finding of the preliminary assessment done by the Board, the Children’s Court shall first decide the appeal.

(4) Where the appeal under sub-section (2) of section 101 of the Act is disposed of by the Children’s Court on a finding that there is no need for trial of the child as an adult, it shall dispose of the same as per section 19 of the Act and these rules.

The Judgement passed by Hon’ble Court states: “In view of the above discussions and after considering the judgments of Hon’ble Patna High Court, Hon’ble Delhi High Court and Hon’ble Supreme Court, no prejudice has been caused to the petitioner in not passing any order under Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2015, put as an irregularity, which is curable and no interference is required. The petitioner is now attained 21 years of age. However, since the Children’s Court has not passed any order in terms of Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2015 read with Rules 13(1) and 13(6) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, the Children’s Court is directed to pass the order in terms thereof. The evidence that has already been come on record would be saved. This criminal miscellaneous petition is dismissed with above observation.”

 

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