THIRUMOORTHYversusSTATE REPRESENTED BY THE INSPECTOR OF POLICE

                 [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 (PW-
       25), 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
* Author
[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.
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          Ajeet Gurjar v. State of Madhya Pradesh 2023 SCC
          Online SC 1255 – referred to.

                                List of Acts
     Juvenile Justice (Care and Protection of Children) Act, 2015; Penal
     Code, 1860; Protection of Children from Sexual Offences Act, 2012.

                             List of Keywords
     Juvenile; Child in Conflict with Law; Children’s Court; Juvenile
     Justice Board; Preliminary assessment; De novo proceedings.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1773
     of 2024
     From the Judgment and Order dated 15.04.2021 of the High Court
     of Judicature at Madras in CRLA No. 451 of 2019
                         Appearances for Parties
     Ms. S. Janani, Ms. Sharika Rai, Advs. for the Appellant.
     Dr. Joseph Aristotle S., Ms. Bhanu Kapoor, Ashutosh Singh Rana,
     Advs. for the Respondent.
                 Judgment / Order of the Supreme Court
                                Judgment
     Mehta, J.
1.   Leave granted.
2.   This appeal takes exception to the judgment dated 15th April, 2021,
     passed by the learned Single Judge of the High Court of Judicature
     at Madras dismissing the criminal appeal filed by the appellant herein
     under Section 374(2) of the Code of Criminal Procedure, 1973
     (hereinafter being referred to as ‘CrPC’) and affirming the conviction
     of the appellant and sentences awarded to him vide judgment and
     order dated 18th February, 2019, passed by the Court of Sessions
     Judge, Mahila Court, Salem (hereinafter being referred to as the
     ‘trial Court’) in Special Sessions Case No. 79 of 2016. By the said
     judgment and order, learned trial Court convicted and sentenced
     the appellant as below: -
[2024] 3 S.C.R.                                                              1231

     Thirumoorthy v. State Represented by the Inspector of Police



         Provision under which                         Sentence
               convicted
      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          Sentenced to undergo 07 years
      IPC                                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(PW-
     1) aged 6 years went missing in the evening of 2nd July, 2016. Mr.
     G (PW-1) lodged a complaint at P.S. Kolathur, District Salem on 3rd
     July, 2016 at 7 ‘o clock in the morning alleging, inter alia that he
     had taken his daughter(victim) to a shop on the previous evening at
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     around 6 o’ clock and from there, he asked the child to return home.
     However, when he reached his house half an hour later and made
     an inquiry from his wife, he was told that the child had not returned
     by then. A search was made in the locality but the child could not
     be traced out. Based on the said complaint, Crime No. 174 of 2016
     was registered and investigation was undertaken by S. Viswanathan,
     Inspector of Police (PW-25).
6.   The Investigating Officer (PW-25) recorded the statements of
     Mylaswamy (PW-10) and Irusappan (PW-11) who stated that they
     had seen the accused going into the compound of his house with
     the child victim being the daughter of the first informant-Mr. G (PW-
     1). On this, the needle of suspicion pointed towards the accused-
     appellant who was apprehended from his house by the Investigating
     Officer (PW-25) while he was trying to run away. The accused was
     interrogated in presence of Mr. Arivazhagan, Village Administrative
     Officer (PW-15) and his assistant Muthappan.
7.   It is alleged that the accused confessed to his guilt and his admission
     was recorded in memo (Ex. P-20) and acting in furtherance thereof,
     the dead body of Ms. D was found concealed in a wide-mouthed
     aluminium vessel lying in the prayer room of the house of the accused.
     The requisite spot inspection proceedings were undertaken and the
     dead body of the child victim was sent to the Salem Government
     Mohan Kumaramangalam Medical College Hospital for conducting
     post mortem. The post mortem report (Ex. P-7) and final opinion of
     Doctor (Ex. P-8) were received indicating that the death of the victim
     was homicidal in nature having being caused by asphyxiation due to
     compression of neck along with injuries to genitalia. Some incised
     wounds were also found on the body of the victim. Incriminating
     articles viz., clothes of the accused, a blade, etc. were recovered
     from the house of accused.
8.   Right at the inception of investigation, the Investigating Officer(PW-25)
     had gathered information to the effect that the accused was a juvenile
     since his date of birth recorded in school documents is 30th May,
     2000. Thus indisputably, the accused was a Child in Conflict with
     Law(in short ‘CICL’) as provided under Section 2(13) of the Juvenile
     Justice(Care and Protection of Children) Act, 2015 (hereinafter being
     referred to as the ‘JJ Act’) and the proceedings were required to be
     conducted in accordance with the mandatory procedure prescribed
[2024] 3 S.C.R.                                                      1233

     Thirumoorthy v. State Represented by the Inspector of Police


     under the JJ Act. Inspite thereof, charge sheet against the accused
     was filed directly before the Sessions Court (portrayed to be a
     designated Children’s Court, as per the counter affidavit filed by the
     State in the SLP).
9.   Charges were framed against the accused who pleaded not guilty
     and claimed trial. The prosecution examined 25 witnesses and
     exhibited 35 documents and 10 material objects to prove its case.
     The accused was questioned under Section 313(1)(b) of CrPC and
     was confronted with the circumstances appearing against him in the
     prosecution case. He denied the allegations levelled against him
     and claimed to be innocent. However, neither oral nor documentary
     evidence was led in defence. The trial Court proceeded to convict
     and sentence the accused as mentioned above, vide judgment and
     order dated 18th February, 2019.
10. The mother of the accused appellant filed a petition before the Special
    Court, POCSO Act Cases, Salem praying that the sentence of her
    son may be reduced and he may be considered for early release in
    view of his good behaviour.
11. The Special Court, POCSO Act Cases, Salem held an inquiry;
    conducted psychological evaluation of the accused; procured reports
    from the Vellore District Social Security Department Probation Officer
    and Probation Officer of Government Special Home as well as the
    individual evaluation report of the accused and after analysing the
    above reports, proceeded to dismiss the application filed by the
    mother of the accused appellant vide order dated 29th January, 2021.
12. Being aggrieved by his conviction and the sentences awarded by the
    trial Court, the accused appellant preferred an appeal being CRLA
    No. 451 of 2019 before the High Court of Judicature at Madras which
    came to be rejected vide impugned judgment dated 15th April, 2021.
    Hence this appeal by special leave.
13. Ms. S. Janani, learned counsel representing the accused appellant
    vehemently urged that admittedly the accused appellant was a
    CICL on the date of the incident since his date of birth as recorded
    in the school documents is 30th May, 2000. She contended that the
    entire series of events commencing from the arrest of the accused
    appellant; the manner in which the investigation was conducted; the
    filing of the charge sheet in the Sessions Court; the procedure of trial
    right up to the conviction and sentencing of the accused appellant
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     is vitiated as the mandatory procedure provided under the JJ Act
     was not followed and was rather blatantly flouted. It was submitted
     that the police official who filed the charge sheet was not having
     the authority to conduct investigation because investigation into an
     offence allegedly committed by CICL has to be undertaken by the
     Special Juvenile Police Unit(SJPU) constituted under Section 107(2)
     of the JJ Act by the concerned State Government.
14. She urged that Section 3(1) provides for the principle of presumption
    of innocence, but the said provision was totally ignored in conducting
    the prosecution of the accused appellant and hence the entire trial
    is vitiated.
15. It was further submitted that the Sessions Judge who conducted trial
    was not designated as a Children’s Court and thus, the trial of the
    accused appellant is vitiated. Without prejudice to this submission,
    learned counsel submitted that even assuming that the Sessions
    Court had been designated as a Children’s Court, the accused
    appellant could not have been tried by the said Court without
    preliminary assessment being conducted by the Juvenile Justice
    Board(hereinafter being referred to as ‘Board’) as postulated under
    Section 15 of the JJ Act. The section mandates an enquiry in form
    of preliminary assessment to be conducted by the Board wherein
    the CICL has a right to participate. Upon conclusion of enquiry, the
    Board has to pass an order under Section 18(3) to the effect that
    there is a need to try the child as an adult and only thereafter, the
    Board can transfer the case to the Children’s Court for trial. The
    CICL has been given a right to appeal against such order by virtue
    of Section 101(2) of the JJ Act. Even after the transfer of case
    under Section 15, the Children’s Court is required to apply its own
    independent mind to find out whether there is a genuine need for
    trial of the CICL as an adult as provided by Section 19(1)(i) of the JJ
    Act. However, none of these mandatory requirements were complied
    with and thus, the trial is vitiated.
16. Referring to the alleged confession of the accused appellant, the
    learned counsel criticised the manner in which the investigation was
    conducted and submitted that the confession recorded in presence
    of the police officer could not have been allowed to be exhibited
    and admitted in evidence. She submitted that the trial Court, not
    only allowed the confession to be exhibited but also placed implicit
[2024] 3 S.C.R.                                                       1235

     Thirumoorthy v. State Represented by the Inspector of Police


     reliance upon it basing the conviction of the accused appellant on
     such inadmissible piece of evidence. The recording of confession
     of a CICL and placing implicit reliance thereupon is contrary to the
     general principles laid out under Section 3 of the JJ Act which provides
     the general principles to be followed in the administration of the Act.
17. It was further urged that (PW-10) and (PW-11) whose depositions
    have been relied upon to constitute the circumstance of last seen are
    as a matter of fact, totally unreliable witnesses. Had these witnesses
    seen the child being taken away by the accused, then their natural
    reaction would have been to promptly inform the child’s father, the
    informant Mr. G. (PW-1) about this important circumstance and the
    same would definitely have been incorporated in the FIR which was
    lodged on the next day of the incident.
18. It was also contended that the factum of recovery of the dead body
    from the aluminium vessel preceded by the disclosure statement of
    the accused appellant has not been proved by reliable evidence and
    hence, there does not exist cogent and convincing circumstantial
    evidence on the record so as to establish the guilt of the accused
    appellant.
19. On these counts, learned counsel for the appellant implored the
    Court to accept the appeal and set aside the impugned judgment
    and sought acquittal for the accused appellant.
20. Learned counsel representing the State, vehemently and fervently
    opposed the submissions advanced by the appellant’s counsel. It
    was submitted that looking to the gruesome nature of the crime, the
    entire investigation and trial cannot be held to be vitiated simply on
    account of irregularity in the procedure of conducting investigation
    and trial. The Sessions Court which conducted the trial had been
    designated as a Children’s Court. The trial Court as well as the High
    Court have given due consideration to the fact that the accused
    appellant was a juvenile on the date of commission of the crime and
    accordingly, the sentence which has been awarded to the accused
    appellant is commensurate with the provisions of the JJ Act. Not only
    this, the trial Court undertook an exhaustive exercise for mental and
    psychological assessment of the accused appellant after recording
    his conviction and only after receiving an individual care plan had
    quantified the sentences to be awarded to the accused which are
    strictly within the framework of the JJ Act.
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21. In support of his contentions, learned counsel for the State placed
    reliance on judgments rendered by this Court in the cases of Karan
    alias Fatiya v. State of Madhya Pradesh1 and Pawan Kumar v.
    State of Uttar Pradesh & Ors2. He contended that the impugned
    judgment does not warrant any interference by this Court.
22. We have given our thoughtful consideration to the submissions
    advanced at bar and have gone through the judgments on record.
23. The fact regarding the accused appellant being a CICL on the date
    of the incident, i.e., 2nd July, 2016 is not in dispute because the date
    of birth of the accused as entered in the contemporaneous school
    record is 30th May, 2000.
24. We shall thus first take up the issue whether the trial is vitiated on
    the account of non-adherence to the mandatory requirements of
    the JJ Act.
25. At the outset, we may note that the fact regarding the accused
    appellant being juvenile and thus a CICL on the date of commission
    of the incident was known to the Investigating Officer(PW-25) right
    at inception of the proceedings. The Investigating Officer(PW-25)
    categorically stated in his deposition that after completing the
    investigation and preparing the final report against the “juvenile in
    conflict with law”, he took opinion from the Salem TTP, prepared
    a model charge sheet and filed the same in the trial Court.
26. The trial Court was also cognizant of this important aspect as can be
    clearly discerned from the opening lines of para 2 of the judgment
    of the trial Court wherein it is mentioned that “Thirumoorthy’, a 17
    year old juvenile in conflict with law, lives with his mother in
    Telanganaur”. It has also been recorded by the trial Court that on
    the date of passing of the judgment, i.e., 18th February, 2019, the
    accused was 19 years and 2 months old and accordingly, he was
    required to be sent to a place of safety as per Section 20 of the JJ
    Act. The judgment passed by the Sessions Court also records the
    fact that during the course of the trial, the accused was kept in a child
    protection home. Further at para 32 of the judgment, the trial Court
    also noted that the Public Prosecutor himself argued that Thirumoorthy
    was a CICL who committed the offence upon the child victim.


1   [2023] 2 SCR 587 : (2023) 5 SCC 504
2   [2023] 15 SCR 261 : 2023 SCC OnLine SC 1492
[2024] 3 S.C.R.                                                        1237

     Thirumoorthy v. State Represented by the Inspector of Police


27. Thus, there is no escape from the conclusion that even before the
    result of investigation was filed, the fact regarding the accused
    being a CICL was well known to the Investigating Officer(PW-25),
    the prosecution and the trial Court as well.
28. Before dealing with the rival contentions, we would now refer to
    some of the relevant provisions of the JJ Act which are required to
    be followed in a case involving prosecution of a CICL:-
           “3. General principles to be followed in administration
           of Act. ––The Central Government, the State Governments,
           the Board, and other agencies, as the case may be, while
           implementing the provisions of this Act shall be guided by
           the following fundamental principles, namely: ––
                (i)    Principle of presumption of innocence: Any
                       child shall be presumed to be an innocent
                       of any mala fide or criminal intent up to the
                       age of eighteen years.
                (ii)   Principle of dignity and worth: All human
                       beings shall be treated with equal dignity
                       and rights.
                (iii) Principle of participation: Every child shall
                      have a right to be heard and to participate
                      in all processes and decisions affecting
                      his interest and the child’s views shall be
                      taken into consideration with due regard
                      to the age and maturity of the child.
                (iv) Principle of best interest: All decisions
                     regarding the child shall be based on the
                     primary consideration that they are in the
                     best interest of the child and to help the
                     child to develop full potential.
                (v)    Principle of family responsibility: The
                       primary responsibility of care, nurture
                       and protection of the child shall be that of
                       the biological family or adoptive or foster
                       parents, as the case may be.
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        (vi) Principle of safety: All measures shall be
             taken to ensure that the child is safe and
             is not subjected to any harm, abuse or
             maltreatment while in contact with the care
             and protection system, and thereafter.
        (vii) Positive measures: All resources are to
              be mobilised including those of family
              and community, for promoting the well-
              being, 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.
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     Thirumoorthy v. State Represented by the Inspector of Police


                (xiii) Principle of repatriation and restoration:
                       Every child in the juvenile justice system
                       shall have the right to be re-united with his
                       family at the earliest and to be restored
                       to the same socio-economic and cultural
                       status that he was in, before coming
                       under the purview of this Act, unless such
                       restoration and repatriation is not in his
                       best interest.
                (xiv) Principle of fresh start: All past records
                      of any child under the Juvenile Justice
                      system should be erased except in special
                      circumstances.
                (xv) Principle of diversion: Measures for dealing
                     with children in conflict with law without
                     resorting to judicial proceedings shall be
                     promoted unless it is in the best interest of
                     the child or the society as a whole.
                (xvi) Principles of natural justice: Basic
                      procedural standards of fairness shall be
                      adhered to, including the right to a fair
                      hearing, rule against bias and the right to
                      review, by all persons or bodies, acting in
                      a judicial capacity under this Act.
           9. Procedure to be followed by a Magistrate who has
           not been empowered under this Act. –– (1) When a
           Magistrate, not empowered to exercise the powers of
           the Board under this Act is of the opinion that the person
           alleged to have committed the offence and brought before
           him is a child, he shall, without any delay, record such
           opinion and forward the child immediately along with the
           record of such proceedings to the Board having jurisdiction.
           (2) In case a person alleged to have committed an offence
           claims before a court other than a Board, that the person
           is a child or was a child on the date of commission of the
           offence, or if the court itself is of the opinion that the person
           was a child on the date of commission of the offence,
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        the said court shall make an inquiry, take such evidence
        as may be necessary (but not an affidavit) to determine
        the age of such person, and shall record a finding on the
        matter, stating the age of the person as nearly as may be:
             Provided that such a claim may be raised before
             any court and it shall be recognised at any
             stage, even after final disposal of the case, and
             such a claim shall be determined in accordance
             with the provisions contained in this Act and the
             rules made thereunder even if the person has
             ceased to be a child on or before the date of
             commencement of this Act.
        (3) If the court finds that a person has committed an
        offence and was a child on the date of commission of such
        offence, it shall forward the child to the Board for passing
        appropriate orders and the sentence, if any, passed by
        the court shall be deemed to have no effect.
        (4) In case a person under this section is required to be
        kept in protective custody, while the person’s claim of being
        a child is being inquired into, such person may be placed,
        in the intervening period in a place of safety.
                                               (emphasis supplied)
        15. Preliminary assessment into heinous offences
        by Board. –– (1) In case of a heinous offence alleged
        to have been committed by a child, who has completed
        or is above the age of sixteen years, the Board shall
        conduct a preliminary assessment with regard to his
        mental and physical capacity to commit such offence,
        ability to understand the consequences of the offence
        and the circumstances in which he allegedly committed
        the offence, and may pass an order in accordance with
        the provisions of subsection (3) of section 18:
             Provided that for such an assessment, the
             Board may take the assistance of experienced
             psychologists or psycho-social workers or other
             experts.
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     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 sub-
                section (2) of section 101:
                Provided further that the assessment under this
                section shall be completed within the period
                specified in section 14.”
           18. Orders regarding child found to be in conflict with
           law. ––(1) Where a Board is satisfied on inquiry that a child
           irrespective of age has committed a petty offence, or a
           serious offence, or a child below the age of sixteen years
           has committed a heinous offence, then, notwithstanding
           anything contrary contained in any other law for the time
           being in force, and based on the nature of offence, specific
           need for supervision or intervention, circumstances as
           brought out in the social investigation report and past
           conduct of the child, the Board may, if it so thinks fit,—
                (a)   allow the child to go home after advice or
                      admonition by following appropriate inquiry
                      and counselling to such child and to his
                      parents or the guardian;
                (b)   direct the child to participate in group
                      counselling and similar activities;
                (c)   order the child to perform community
                      service under the supervision of an
                      organisation or institution, or a specified
                      person, persons or group of persons
                      identified by the Board;
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             (d)   order the child or parents or the guardian
                   of the child to pay fine:
                   Provided that, in case the child is working,
                   it may be ensured that the provisions of
                   any labour law for the time being in force
                   are not violated;
             (e)   direct the child to be released on probation
                   of good conduct and placed under the
                   care of any parent, guardian or fit person,
                   on such parent, guardian or fit person
                   executing a bond, with or without surety,
                   as the Board may require, for the good
                   behaviour and child’s well-being for any
                   period not exceeding three years;
             (f)   direct the child to be released on probation
                   of good conduct and placed under the
                   care and supervision of any fit facility for
                   ensuring the good behaviour and child’s
                   well-being for any period not exceeding
                   three years;
             (g)   direct the child to be sent to a special
                   home, for such period, not exceeding
                   three years, as it thinks fit, for providing
                   reformative services including education,
                   skill development, counselling, behaviour
                   modification therapy, and psychiatric
                   support during the period of stay in the
                   special home:
             Provided that if the conduct and behaviour of
             the child has been such that, it would not be
             in the child’s interest, or in the interest of other
             children housed in a special home, the Board
             may send such child to the place of safety.
        (2) If an order is passed under clauses (a) to (g) of sub-
        section (1), the Board may, in addition pass orders to—
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     Thirumoorthy v. State Represented by the Inspector of Police


                (i)    attend school; or
                (ii)   attend a vocational training centre; or
                (iii) attend a therapeutic centre; or
                (iv) prohibit the child from visiting, frequenting
                     or appearing at a specified place; or
                (v)    undergo a de-addiction programme.
           (3) Where the Board after preliminary assessment under
           section 15 pass an order that there is a need for trial of the
           said child as an adult, then the Board may order transfer
           of the trial of the case to the Children’s Court having
           jurisdiction to try such offences.
           19. Powers of Children’s Court.—(1) After the receipt
           of preliminary assessment from the Board under Section
           15, the Children’s Court may decide that—
           (i) there is a need for trial of the child as an adult as per
           the provisions of the Code of Criminal Procedure, 1973 (2
           of 1974) and pass appropriate orders after trial subject to
           the provisions of this section and Section 21, considering
           the special needs of the child, the tenets of fair trial and
           maintaining a child friendly atmosphere;
           (ii) there is no need for trial of the child as an adult and
           may conduct an inquiry as a Board and pass appropriate
           orders in accordance with the provisions of Section 18.
           (2)-(5)..……..”
29. The provisions contained in Section 9(1) stipulate that when a
    Magistrate not empowered to exercise the power of the Board under
    the Act is of the opinion that the person alleged to have committed
    the offence and brought before him is a child, he shall, without any
    delay, record such opinion and forward the child immediately along
    with the record of such proceedings to the Board having jurisdiction.
30. Sections 9(2) and 9(3) cast a burden that where the Court itself is of
    the opinion that the person was a child on the date of commission
    of the offence, it shall conduct an inquiry so as to determine the age
    of such person and upon finding that the person alleged to have
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     committed the offence was a child on date of commission of such
     offence, forward such person to the Board for passing appropriate
     orders and sentence, if any, passed by the Court shall be deemed
     to have no effect.
31. In the present case, the situation is very stark inasmuch as, even
    when the charge sheet was filed, the Investigating Officer had clearly
    recorded that the date of birth of the accused was 30th May, 2000,
    and hence, even assuming that Sessions Court at Salem had been
    designated as a Children’s Court, there was no option for the said
    Court but to forward the child to the concerned Board for further
    directions.
32. There is no dispute on the aspect that the offences of which the
    accused appellant was charged with, fall within the category of
    ‘heinous offences’ as defined under Section 2(33) of the JJ Act.
    Section 15(1) provides that in case where a heinous offence/s are
    alleged to have been committed by a child who has completed or is
    above the age of sixteen years, the Board shall conduct a preliminary
    assessment with regard to his mental and physical capacity to
    commit such offence, ability to understand the consequences of the
    offence and the circumstances in which he committed the offence.
    The Board, after conducting such assessment, may pass an order
    in accordance with the provisions of sub-section (3) of Section 18 of
    the JJ Act. Section 15(2) provides that where the Board is satisfied
    on preliminary assessment that the matter should be disposed of
    by the Board, then the Board shall follow the procedure, as far as
    may be, for trial of summons case under CrPC. Under first proviso
    to this sub-section, the order passed by the Board is appealable
    under Section 101(2) of the JJ Act.
33. Section 18(3) provides that where the Board after preliminary
    assessment under Section 15 opines that there is a need for the
    said child to be tried as an adult, then the Board may order transfer
    of the trial of the case to the Children’s Court having jurisdiction to
    try such offences.
34. By virtue of Section 19(1), the Children’s Court, upon receiving such
    report of preliminary assessment undertaken by the Board under
    Section 15 may further decide as to whether there is a need for trial
    of the child as an adult or not.
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     Thirumoorthy v. State Represented by the Inspector of Police


35. The procedure provided under Sections 15 and 19 has been held to
    be mandatory by this Court in the case of Ajeet Gurjar v. State of
    Madhya Pradesh3. In the said case, this Court considered the import
    of Section 19(1) of the JJ Act and held that the word ‘may’ used in
    the said provision be read as ‘shall’. It was also held that holding
    of an inquiry under 19(1)(i) is not an empty formality. Section 19)(1)
    (ii) provides that after examining the matter, if the Children’s Court
    comes to the conclusion that there is no need for trial of the child
    as an adult, instead of sending back the matter to the Board, the
    Court itself is empowered to conduct an inquiry and pass appropriate
    orders in accordance with provisions of Section 18 of the JJ Act. The
    trial of a child as an adult and his trial as a juvenile by the Children’s
    Court have different consequences.
36. It was further held that the Children’s Court cannot brush aside the
    requirement of holding an inquiry under Section 19(1)(i) of the JJ
    Act. Thus, all actions provided under Section 19 are mandatorily
    required to be undertaken by the Children’s Court.
37. As can be seen from the facts of the present case, there has been a
    flagrant violation of the mandatory requirements of Sections 15 and
    19 of the JJ Act. Neither was the charge sheet against the accused
    appellant filed before the Board nor was any preliminary assessment
    conducted under Section 15, so as to find out whether the accused
    appellant was required to be tried as an adult.
38. In absence of a preliminary assessment being conducted by the Board
    under Section 15, and without an order being passed by the Board
    under Section 15(1) read with Section 18(3), it was impermissible
    for the trial Court to have accepted the charge sheet and to have
    proceeded with the trial of the accused.
39. Thus, it is evident that the procedure adopted by the Sessions
    Court in conducting the trial of the accused appellant is de hors the
    mandatory requirements of JJ Act.
40. Thus, on the face of the record, the proceedings undertaken by
    the Sessions Court in conducting trial of the CICL, convicting and
    sentencing him as above are in gross violation of the mandate of
    the Act and thus, the entire proceedings stand vitiated.


3   2023 SCC Online SC 1255
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41. It seems that pursuant to the trial being concluded, the trial Court
    realized the gross illegality in the proceedings and thus, in an
    attempt to give a vestige of validity to the grossly illegal proceedings
    conducted earlier, an exercise was undertaken to deal with the
    accused appellant as per the provisions of the JJ Act on the aspect
    of sentencing. However, ex facie, the said action which seems to be
    taken by way of providing an ex post facto imprimatur to the grossly
    illegal trial does not stand to scrutiny because the very foundation
    of the prosecution case is illegal to the core.
42. All the proceedings taken against the accused appellant are vitiated
    as being in total violation of the mandatory procedure prescribed
    under the JJ Act.
43. In the case of Karan Alias Fatiya(supra) relied upon by learned
    counsel for the State, this Court interpreted Section 9(3) and held
    that this sub-section does not specifically or impliedly provide that
    the conviction recorded by any Court with respect to a person who
    has been subsequently, after the disposal of the case found to be
    juvenile or a child, would lose its effect, rather it is only the sentence
    if any passed by the Court would be deemed to have no effect. The
    said judgment is clearly distinguishable because in the present case,
    the fact that the accused was a child on the date of the incident
    was clearly known to the Investigating Officer, the prosecution and
    the trial Court and thus, there is no possibility of saving the illegal
    proceedings by giving them an ex post facto approval.
44. In the case of Pawan Kumar(supra), the plea of juvenility raised
    by the accused did not find favour of the Sessions Court as well as
    the High Court. However, in the appeal before this Court, a report
    was submitted by the Additional Sessions Judge, wherein it was
    opined that the appellant was a juvenile at the time of commission
    of alleged offences. The incident in the said case occurred on 1st
    December, 1995 and the age of juvenility was 16 years as provided
    in the then prevailing Juvenile Justice Act, 1986. In the peculiar
    facts of the said case, this Court held that by virtue of subsequent
    amendments, the age of juvenility had been raised to 18 years and
    thus, the accused was entitled to be treated as a juvenile by virtue of
    the provisions of the JJ Act prevailing when the appeal was taken up.
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     Thirumoorthy v. State Represented by the Inspector of Police


     Since the accused had already undergone the maximum punishment
     of detention provided under the said Act, i.e., three years, it was
     directed that the accused therein be released forthwith.
45. In the above two referred cases, the situation presented was
    that the factum regarding the accused being a child within the
    meaning of the JJ Act came to light at a very late stage i.e. after
    final decision of the cases and hence both these cases are clearly
    distinguishable from the case at hand.
46. In the case of Ajeet Gurjar(supra), this Court remitted back the
    matter to the Sessions Court for complying with the requirements
    of Section 19(1) of the JJ Act. However, in the present case, there
    is yet another hurdle which convinces us that it is not a fit case
    warranting de novo proceedings against the accused appellant
    by taking recourse to the provisions of the JJ Act. At the cost of
    repetition, it may be reiterated that the charge sheet was filed
    against the accused appellant directly before the Sessions Court
    (statedly designated as a Children’s Court) and he was never
    presented before the Juvenile Justice Board as per the mandate
    of the JJ Act.
47. The accused appellant being a CICL was never subjected to
    preliminary assessment by the Board so as to find out whether
    he should be tried as an adult. Directing such an exercise at this
    stage would be sheer futility because now the appellant is nearly
    23 years of age.
48. At this stage, there remains no realistic possibility of finding out the
    mental and physical capacity of the accused appellant to commit the
    offence or to assess his ability to understand the consequences of
    the offence and circumstances in which he committed the offence
    in the year 2016.
49. Since we have held that the entire proceedings taken against the
    appellant right from the stage of investigation and the completion of
    trial stand vitiated as having been undertaken in gross violation of
    the mandatory requirements of the JJ Act, we need not dwell into
    the merits of the matter or to reappreciate the evidence available
    on record for finding out whether the prosecution has been able to
    prove the guilt of the appellant by reliable circumstantial evidence.
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50. Thus, we are left with no option but to quash and set aside the
    impugned judgment and direct that the appellant who is presently
    lodged in jail shall be released forthwith, if not required in any other
    case.
51. The appeal is allowed accordingly.
52. Pending application(s), if any, shall stand disposed of.


     Headnotes prepared by: Divya Pandey                 Result of the case:
                                                            Appeal allowed.