Supreme Court of India
Child In Conflict With Law Through His … vs The State Of Karnataka on 7 May, 2024
Author: Rajesh Bindal
Bench: Rajesh Bindal, C.T. Ravikumar
2024 INSC 387 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
(Arising out of Special Leave Petition (Crl.) No. 3033 of 2024)
CHILD IN CONFLICT WITH LAW
THROUGH HIS MOTHER … Appellant (s)
VERSUS
THE STATE OF KARNATAKA AND ANOTHER … Respondent(s)
JUDGMENT
Rajesh Bindal, J.
Leave granted.
BRIEF FACTS
2. The present appeal has been filed by Child in Conflict with
Law1 impugning the order2 passed by the High Court3.
Signature Not Verified
Digitally signed by Dr.
Naveen Rawal
Date: 2024.05.07
13:43:17 IST
Reason:
1
Hereinafter referred to as “CCL”.
2
Order dated 15.11.2023 passed in Criminal Revision Petition No. 1243 of 2023.
3
High Court of Karnataka at Bengaluru.
Page 1 of 77
3. Vide aforesaid order, the High Court set aside the order
dated 10.04.2023 passed by the Board4.
4. Briefly, the facts as available on record are that FIR 5 was
registered against the CCL for commission of offences under sections
376(i), 342 IPC and sections 4, 5, 6, 7 and 8 of Protection of Children
from Sexual Offences Act, 20126. After his apprehension on 03.11.2021,
the CCL was produced before the Board. On 09.11.2021, he was
released on bail. After completion of investigation, charge-sheet was
filed. The Board was called upon to decide the issue as to whether the
CCL is to be tried by the Board or as an adult by the Children’s Court.
The arguments in the matter were heard on 29.03.2022 by the Principal
Magistrate and a Member of the Board. The matter was adjourned to
05.04.2022 for order.
4.1 On 05.04.2022, the Principal Magistrate of the Board passed
an order holding that as per preliminary assessment report and the
social investigation report, the CCL is to be tried as an adult by the
Children’s Court. The record was directed to be transferred to the Court
concerned. However, when the file was put up before the Member of the
4
Additional Juvenile Justice Board, Bangalore City.
5
Crime No. 239/2021 dated 03.11.2021.
6
Hereinafter referred to as “2012 Act”.
Page 2 of 77
Board for signatures, he recorded: “I am having a dissenting view to
abovesaid order. I will pass detailed order on next date of hearing.”. The
matter was adjourned to 12.04.2022. No separate order, as recorded by
the Member of the Board on 05.04.2022, was passed by him. On
12.04.2022 the matter was apparently heard afresh by two Members of
the Board without there being the Principal Magistrate. Order was
passed that as per the preliminary assessment report and the social
investigation report, the enquiry regarding the alleged offence
committed by the CCL has to be conducted by the Board as a juvenile.
4.2 An application under Section 19 of the Juvenile Justice (Care
and Protection of Children) Act, 20157 dated 18.10.2022 was filed by the
complainant/mother of the victim before the Board for termination of
proceedings and transferring the matter to the Children’s Court, to
which objections were filed by the CCL.
4.3 Vide order dated 10.4.2023, the Board dismissed the
application.
4.4 Impugning the aforesaid order, revision petition8 was filed
by the Complainant before the High Court, which was allowed. The
7
Hereinafter referred to as “the Act”
8
Criminal Revision Petition No. 1243 of 2023
Page 3 of 77
impugned order dated 10.04.2023 passed by the Board was set aside.
The Board was directed to transmit the record to the Children’s Court for
trial.
4.5 The aforesaid order is under challenge before this Court by
the CCL.
ARGUMENTS OF THE APPELLANT
5. Mr. Sidharth Luthra and Mr. S. Nagamuthu, learned senior
counsel appearing for the CCL, submitted that the practice of passing
order while stating that the reasons will follow has been deprecated by
this Court. It deprives the party concerned to avail of his appropriate
remedy, when no reasons are available. In the case in hand, firstly the
Principal Magistrate mentioned that the order was being passed by him
and another Member of the Board. However, the Member of the Board
did not sign the same. He only mentioned that he dis-agrees with the
views of the Principal Magistrate and will pass a detailed order on the
next date. The matter was kept for 12.04.2022. In support of the
arguments, reliance was placed upon the judgment of this Court in
Page 4 of 77
Balaji Baliram Mupade and Another v. State of Maharashtra and
Others9.
5.1 It was further argued that the order passed on 05.04.2022 is
not an order in the eyes of law. The matter being listed on 12.04.2022,
the arguments were heard by two Members of the Board including the
Member who had earlier not signed the order. An order was passed
directing that the enquiry into the offence shall be conducted by the
Board, treating the CCL as juvenile. He further referred to the
documents placed on record with Crl. M.P. No. 28749 of 2024 that even
the Principal Magistrate was present in Court on that date. He had also
heard the arguments but did not sign the order. There was a well-
considered order passed on 12.04.2022, against which the only remedy
available to the victim was to file an appeal. However, the same was not
availed of within the period provided for under Section 101 of the Act.
5.2 It was further submitted that after the commencement of trial
before the Board, nearly six months thereafter an application was filed
for terminating the proceedings before the Board and transferring the
matter to the Children’s Court, to which objections were filed by the
9
(2021) 12 SCC 603
Page 5 of 77
CCL. The Board appreciated the position of law correctly and dismissed
the application filed by the mother of the victim.
5.3 It was submitted that even if for arguments’ sake it is
assumed that the order passed on 12.04.2022 cannot be legally
sustained. It may, at the most, revive the order dated 05.04.2022 against
which the CCL has a remedy of filing an appeal. However, in view of the
developments which had taken place since the passing of the order on
12.04.2022, the CCL has been deprived of his remedy of appeal. If this
Court is of the view that the order passed on 05.04.2022 was an order,
the CCL be given liberty to avail remedy of appeal against the same, as
with the passing of the impugned order by the High Court, the CCL has
been left remediless against the order.
5.4 Section 15(1) of the Act provides for preliminary assessment
regarding mental status and physical capacity of the CCL, who had
allegedly committed heinous offence. In case the Board is satisfied, that
enquiry into the matter has to be conducted by the Board, it shall follow
the procedure as prescribed. However, an order can also be passed in
terms of Section 18(3) of the Act for trial of the CCL by the Children’s
Page 6 of 77
Court. It is only the assessment, as to whether the Board or the
Children’s Court has to hold inquiry or conduct trial.
5.5 Section 18(3) of the Act provides that after preliminary
assessment under Section 15 of the Act, the Board shall pass an order
that there is a need for trial of the CCL as an adult. The records of the
case have to be transferred for trial to the Children’s Court having
jurisdiction.
5.6 Section 17 of the Act provides for procedure in relation to the
Board. It was submitted that the Board as such is not a court and any
proceeding conducted by the Board are not to be treated as an order. It
is merely an opinion. The Board, as defined in section 2(10) of the Act,
means the Board as constituted under section 4 thereof. It shall consist of
a Metropolitan Magistrate or a Judicial Magistrate of First Class, not
being the Chief Metropolitan Magistrate or Chief Judicial Magistrate
with at least three years’ experience and two social workers selected in
the manner prescribed, one of them has to be a woman.
5.7 Section 7(3) of the Act provides that there shall be at least two
members including the Principal Magistrate present at the time of final
disposal of a case or make an order under Section 18(3) of the Act.
Page 7 of 77
5.8 It was further submitted that the appeal against an order
passed under Section 18(3) of the Act by the Board, directing trial of the
CCL by the Children’s Court would lie to the Court of Sessions.
5.9 The term Children’s Court has been defined in Section 2(20)
of the Act. It means a Court established as such under the Commissions
for Protection of Child Rights Act, 200510 or a Special Court under the
2012 Act, and where such Courts have not been designated, the Court of
Sessions having jurisdiction. The argument is, that two separate
authorities have been mentioned in sub-sections (1) and (2) of Section
101 of the Act, otherwise separate provisions were not required. This is
the spirit of the law.
5.10 Section 19 of the Act deals with the powers of Children’s
Court. After receipt of the preliminary assessment from the Board under
Section 15, the Children’s Court may decide that the child is to be tried
as an adult or that there is no need for trial of the CCL as an adult. An
order passed by the Children’s Court is appealable before the High
Court in terms of Section 101(5) of the Act.
10
Hereinafter referred to as “2005 Act”
Page 8 of 77
5.11 Reference was made to Rule 10A of the Juvenile Justice
(Care and Protection of Children) Model Rules, 2016 11 which
prescribes the procedure for preliminary assessment regarding the age
of the CCL under Section 14, and inquiry by the Board or trial by the
Children’s Court under Section 15 of the Act.
5.12 Referring to the aforesaid scheme of the Act, it was submitted
that an assessment under Section 15 of the Act does not envisage
passing of an order. It is merely a satisfaction recorded, and there is no
final satisfaction recorded by the Board on 05.04.2022 as next date of
hearing had been given. The matter had to be considered by the Board
subsequently. In fact, no order had been passed under Section 18(3) of
the Act. Subsequent orders passed by the Board showed that the inquiry
had already commenced. It was at a later stage that the Complainant
filed an application for termination of proceedings before the Board,
which was dismissed on 10.04.2023. The order was appealable under
Section 101(1) of the Act. However, no appeal was filed. A revision was
filed before the High Court under Section 397 read with Section 399 of
the Cr.P.C., which was not maintainable.
11
Hereinafter to be referred as “the 2016 Rules”
Page 9 of 77
5.13 It was further argued that in terms of Section 14(3) of the Act
preliminary assessment under Section 15 thereof, has to be made within
a period of three months from the date of first production of CCL before
the Board. In the case in hand, the child was produced before the Board
for the first time on 03.11.2021. The period of three months expired on
02.02.2022. No order could possibly be passed by the Board on
05.04.2022. The result thereof is that the CCL is to be tried by the Board
and no order for his trial by the Children’s Court could be passed
thereafter.
5.14 Reliance was placed upon the judgment of this Court in
Barun Chandra Thakur vs. Master Bholu & Anr.12 to submit that this
Court opined that the timelines provided for under the Act have to be
adhered to. If the time provided for in Section 14(3) for preliminary
assessment under Section 15 cannot be extended, no order for trial of
the CCL by the Children’s Court can be passed. Reliance was also
placed upon judgment of this Court in Shilpa Mittal vs. State (NCT of
Delhi)13.
12
2022 INSC 716: (2022) 10 SCR 595
13
(2020) 2 SCC 787: 2020 INSC 25: (2020) 2 SCR 478
Page 10 of 77
ARGUMENTS OF RESPONDENTS
6. On the other hand, learned counsel for the State submitted
that even after the order is passed by the Board transferring the matter
to the Children’s Court for trial of the CCL, it can be reconsidered by the
Children’s Court under Section 19(1) of the Act. Any order passed by
the Children’s Court is appealable under Section 101(5) of the Act. The
scope of Section 101(1) and 101(2) is different. Sub-section (1) deals with
final orders, whereas sub-section (2) deals with preliminary assessment.
The trial of the offence is only by the Children’s Court.
6.1 It was further submitted that, in terms of proviso to Section
15(1) of the Act, the Board may take assistance of experienced
psychologists, psycho-social workers or other experts to enable the
Board to reach a proper conclusion.
6.2 In this case, a report dated 01.02.2022 has been submitted by
the Department of Child and Adolescent Psychiatry, NIMHANS-DWCO.
It was in response to a letter dated 12.01.2022 from the Police Inspector,
Marathahalli Police Station to the Psychiatrist, NIMHANS Hospital,
Bengaluru. Going backward, learned counsel for the State referred to
the interim order of the Board dated 09.11.2021 in terms of which the
Page 11 of 77
Board had called for the social investigation report of the child to enable
the Board to pass further order in terms of Section 18(3) of the Act.
However, no report was produced on 06.12.2021. The matter was
adjourned from 06.12.2021 to 11.01.2022, and thereafter to 21.02.2022.
The Social Investigation Report was received by the Board on
19.02.2022.
6.3 The arguments on the issue of trial of the CCL by the
Children’s Court or inquiry by the Board, were completed on 29.03.2022
and the matter was adjourned to 05.04.2022 for orders, when the
Principal Magistrate passed an order directing for trial of the CCL by the
Children’s Court. Another member of the Board did not append his
signature and recorded that he had a dissenting view and would pass
the detailed order on the next date i.e. 12.04.2022. In fact, in terms of
Section 7(4) of the Act, the proceeding for determination of the forum,
which was to conduct the inquiry or trial, concluded on that day itself, as
the opinion of the Principal Magistrate is final. The manner in which the
case was dealt with subsequently, is strange. Subsequent order dated
12.04.2022 was passed by different members of the Board. The entire
proceedings were non-est. There was no error in the application moved
Page 12 of 77
by the victim for termination of proceedings before the Board and
referring the matter to the Children’s Court, for which an order had
already been passed by the Principal Magistrate on 05.04.2022.
6.4 It was further argued that merely because proceedings
under Section 15 of the Act could not be concluded within three months,
by default the CCL will not be tried by the Board. The provision cannot
be held to be mandatory, as no consequence of such a default has been
provided in the Act. Even proviso to Section 14(4) provides for extension
of time in case the inquiry as envisaged under Section 14(1) cannot be
concluded within the time prescribed.
6.5 It was further submitted that though there is no direct
judgment of this Court in this matter dealing with Section 14(3) of the
Act. However, the learned counsel for the State referred to the following
judgments of the Madhya Pradesh, Punjab & Haryana and Delhi High
Courts Bhola vs State of Madhya Pradesh14, Neeraj and Others vs
State of Haryana15 and X vs. State16.
14
2019 SCC OnLine MP 521
15
2005 SCC OnLine P&H 611
16
2019 SCC OnLine Del 11164
Page 13 of 77
6.6 It was further argued that the inquiry envisaged under
Section 15 of the Act provides for taking opinion from experienced
psychologists or psycho-social workers or other experts. The role of
investigating officer is also relevant as he is investigating the same.
There can be intentional delays caused in the process also to take
benefit, in case by default CCL in a heinous offence is to be tried by the
Board. As in the case in hand the investigating officer himself took about
two months in getting the report from NIMHANS. In such a situation the
Board should not be treated as powerless to extend the time for reasons
to be recorded. No doubt, in such a matter all the proceedings have to
be completed as expeditiously as possible.
6.7 It was further submitted that there is no merit in the
arguments raised by the learned counsel for the appellant, to give him
liberty to challenge the order dated 05.04.2022 in case he has grievance
against the same. Much water has flown thereafter. All possible
arguments were raised in the revision decided by the High Court, and
considered. To give liberty to the appellant to raise the same before a
lower authority would be an exercise in futility. The same would rather
Page 14 of 77
result in delaying the process further. The prayer is for the dismissal of
the appeal.
DISCUSSION
7. Heard learned counsel for the parties and perused the
relevant referred record. We have divided our judgment in different
parts, as mentioned below:
Sl. HEADING PARA PAGE
No. No(s). No(s).
I. Relevant provisions. 8 16-37
II. Whether the period provided for 9-9.28 37-57
completion of preliminary assessment
under section 14(3) of the Act is mandatory
or directory.
III. Exercise of revisional power by the High 10-10.5 58-61
Court.
IV. Anomaly in Section 101 of the Juvenile
Justice (Care and Protection of Children)
Act, 2015.
(A) Regarding the terms used as 11-12.2 62-66
‘Children’s Court’ and ‘Court of
Sessions’.
(B) Time for filing appeal against 13-13.2 66-67
order of the Board under Section
15 of the Act.
(C) Regarding second appeal. 14-14.1 67-68
V. Validity of order passed by the Board on 15-15.5 68-71
05.04.2022.
VI. Remedy of appeal to appellant. 16-16.2 71-72
VII. Additional issues. 17-17.3 72-74
VIII. Reliefs and Directions. 18-19 74-77
Page 15 of 77
I. RELEVANT PROVISIONS
8. The relevant provisions of various statutes and the Rules
applicable in the matter are extracted below:
EXTRACTS OF RELEVANT PROVISIONS OF THE
JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2015“Section 2(10). “Board” means a Juvenile Justice Board
constituted under section 4.
Section 2(13). “child in conflict with law” means a child
who is alleged or found to have committed an offence and
who has not completed eighteen years of age on the date of
commission of such offence.
Section 2(20). “Children’s Court” means a court
established under the Commissions for Protection of Child
Rights Act, 2005 (4 of 2006) or a Special Court under the
Protection of Children from Sexual Offences Act, 2012 (32 of
2012), wherever existing and where such courts have not
been designated, the Court of Sessions having jurisdiction to
try offences under the Act.
Section 2(22). “Committee” means Child Welfare
Committee constituted under section 27.
Page 16 of 77
Section 2(23). “court” means a civil court, which has
jurisdiction in matters of adoption and guardianship and may
include the District Court, Family Court and City Civil Courts.
Section 2(33). “heinous offences” includes the offences for
which the minimum punishment under the Indian Penal Code
(45 of 1860) or any other law for the time being in force is
imprisonment for seven years or more.
x x x Section 4. Juvenile Justice Board.— (1) xx xx
(2) A Board shall consist of a Metropolitan Magistrate or a
Judicial Magistrate of First Class not being Chief Metropolitan
Magistrate or Chief Judicial Magistrate (hereinafter referred
to as Principal Magistrate) with at least three years
experience and two social workers selected in such manner
as may be prescribed, of whom at least one shall be a
woman, forming a Bench and every such Bench shall have the
powers conferred by the Code of Criminal Procedure, 1973
(2 of 1974) on a Metropolitan Magistrate or, as the case may
be, a Judicial Magistrate of First Class.
(3) to (7) xx xx
Section 7. Procedure in relation to Board.—
(1) & (2) xx xx
Page 17 of 77
(3) A Board may act notwithstanding the absence of any
member of the Board, and no order passed by the Board shall
be invalid by the reason only of the absence of any member
during any stage of proceedings:
Provided that there shall be atleast two members including
the Principal Magistrate present at the time of final disposal
of the case or in making an order under sub-section (3) of
section 18.
(4) In the event of any difference of opinion among the
members of the Board in the interim or final disposal, the
opinion of the majority shall prevail, but where there is no
such majority, the opinion of the Principal Magistrate, shall
prevail.
x x x
Section 14. Inquiry by Board regarding child in conflict
with law.—(1) Where a child alleged to be in conflict with
law is produced before Board, the Board shall hold an inquiry
in accordance with the provisions of this Act and may pass
such orders in relation to such child as it deems fit under
sections 17 and 18 of this Act.
(2) The inquiry under this section shall be completed
within a period of four months from the date of first
production of the child before the Board, unless the period is
extended, for a maximum period of 2 more months by thePage 18 of 77
Board, having regard to the circumstances of the case and
after recording the reasons in writing for such extension.
(3) A preliminary assessment in case of heinous offences
under section 15 shall be disposed of by the Board within a
period of three months from the date of first production of the
child before the Board.
(4) If inquiry by the Board under sub-section (2) for petty
offences remains inconclusive even after the extended
period, the proceedings shall stand terminated:
Provided that for serious or heinous offences, in case the
Board requires further extension of time for completion of
inquiry, the same shall be granted by the Chief Judicial
Magistrate or, as the case may be, the Chief Metropolitan
Magistrate, for reasons to be recorded in writing.
(5) xx xx
x x x
Section 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,Page 19 of 77
and may pass an order in accordance with the provisions of
sub-section (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 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
(2 of 1974):
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.
x x x
Section 17. Orders regarding child not found to be in
conflict with law.—(1) Where a Board is satisfied on inquiry
that the child brought before it has not committed any
Page 20 of 77
offence, then notwithstanding anything contrary contained in
any other law for the time being in force, the Board shall pass
order to that effect.
(2) In case it appears to the Board that the child referred to
in sub-section (1) is in need of care and protection, it may
refer the child to the Committee with appropriate directions.
Section 18. Orders regarding child found to be in conflict
with law.—
(1) & (2) xx xx
(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.
Section 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;
Page 21 of 77
(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) 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.
(3) 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.
(4) The Children’s Court shall ensure that there is a
periodic follow up report every year by the probation officer
or the District Child Protection Unit or a social worker, as
required, to evaluate the progress of the child in the place of
safety and to ensure that there is no ill-treatment to the child
in any form.
Page 22 of 77
(5) The reports under sub-section (4) shall be forwarded to
the Children’s Court for record and follow up, as may be
required.
x x x
Section 101. Appeals. —(1) Subject to the provisions of this
Act, any person aggrieved by an order made by the
Committee or the Board under this Act may, within thirty days
from the date of such order, prefer an appeal to the
Children’s Court, except for decisions by the Committee
related to Foster Care and Sponsorship After Care for which
the appeal shall lie with the District Magistrate:
Provided that the Court of Sessions, or the District
Magistrate, as the case may be, may entertain the appeal
after the expiry of the said period of thirty days, if it is
satisfied that the appellant was prevented by sufficient cause
from filing the appeal in time and such appeal shall be
decided within a period of thirty days.
(2) An appeal shall lie against an order of the Board
passed after making the preliminary assessment into a
heinous offence under section 15 of the Act, before the Court
of Sessions and the Court may, while deciding the appeal,
take the assistance of experienced psychologists and
medical specialists other than those whose assistance has
been obtained by the Board in passing the order under the
said section.
Page 23 of 77
(3) No appeal shall lie from any order of acquittal made by
the Board in respect of a child alleged to have committed an
offence other than the heinous offence by a child who has
completed or is above the age of sixteen years.
(4) No second appeal shall lie from any order of the Court
of Session, passed in appeal under this section.
(5) Any person aggrieved by an order of the Children’s
Court may file an appeal before the High Court in
accordance with the procedure specified in the Code of
Criminal Procedure, 1973 (2 of 1974).
(6) & (7) xx xx
102. Revision.—The High Court may, at any time, either on
its own motion or on an application received in this behalf,
call for the record of any proceeding in which any Committee
or Board or Children’s Court, or Court has passed an order,
for the purpose of satisfying itself as to the legality or
propriety of any such order and may pass such order in
relation thereto as it thinks fit: Provided that the High Court
shall not pass an order under this section prejudicial to any
person without giving him a reasonable opportunity of being
heard.”EXTRACTS OF RELEVANT RULES 10, 10A, 11 & 13 OF
THE JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) MODEL RULES, 2016Page 24 of 77
“Rule 10. Post-production processes by the Board.- (1)
On production of the child before the Board, the report
containing the social background of the child, circumstances
of apprehending the child and offence alleged to have been
committed by the child as provided by the officers,
individuals, agencies producing the child shall be reviewed
by the Board and the Board may pass such orders in relation
to the child as it deems fit, including orders under sections 17
and 18 of the Act, namely:
(i) disposing of the case, if on the consideration
of the documents and record submitted at the time of
his first appearance, his being in conflict with law
appears to be unfounded or where the child is
alleged to be involved in petty offences;
(ii) referring the child to the Committee where
it appears to the Board that the child is in need of
care and protection;
(iii) releasing the child in the supervision or
custody of fit persons or fit institutions or Probation
Officers as the case may be, through an order in
Form 3, with a direction to appear or present a child
for an inquiry on the next date; and
(iv) directing the child to be kept in the Child
Care Institution, as appropriate, if necessary,
pending inquiry as per order in Form 4.
Page 25 of 77
(2) In all cases of release pending inquiry, the Board shall
notify the next date of hearing, not later than fifteen days of
the first summary inquiry and also seek social investigation
report from the Probation Officer, or in case a Probation
Officer is not available the Child Welfare Officer or social
worker concerned through an order in Form 5.
(3) When the child alleged to be in conflict with law, after
being admitted to bail, fails to appear before the Board, on
the date fixed for hearing, and no application is moved for
exemption on his behalf or there is not sufficient reason for
granting him exemption, the Board shall, issue to the Child
Welfare Police Officer and the Person-in-charge of the Police
Station directions for the production of the child.
(4) If the Child Welfare Police Officer fails to produce the
child before the Board even after the issuance of the
directions for production of the child, the Board shall instead
of issuing process under section 82 of the Code of Criminal
Procedure, 1973 pass orders as appropriate under section 26
of the Act.
(5) In cases of heinous offences alleged to have been
committed by a child, who has completed the age of sixteen
years, the Child Welfare Police Officer shall produce the
statement of witnesses recorded by him and other documents
prepared during the course of investigation within a period
of one month from the date of first production of the childPage 26 of 77
before the Board, a copy of which shall also be given to the
child or parent or guardian of the child.
(6) In cases of petty or serious offences, the final report
shall be filed before the Board at the earliest and in any case
not beyond the period of two months from the date of
information to the police, except in those cases where it was
not reasonably known that the person involved in the offence
was a child, in which case extension of time may be granted
by the Board for filing the final report.
(7) When witnesses are produced for examination in an
inquiry relating to a child alleged to be in conflict with law,
the Board shall ensure that the inquiry is not conducted in the
spirit of strict adversarial proceedings and it shall use the
powers conferred by section 165 of the Indian Evidence Act,
1872 (1 of 1872) so as to interrogate the child and proceed
with the presumptions in favour of the child.
(8) While examining a child alleged to be in conflict with
law and recording his statement during the inquiry under
section 14 of the Act, the Board shall address the child in a
child-friendly manner in order to put the child at ease and to
encourage him to state the facts and circumstances without
any fear, not only in respect of the offence which has been
alleged against the child, but also in respect of the home and
social surroundings, and the influence or the offences to
which the child might have been subjected to.
Page 27 of 77
(9) The Board shall take into account the report containing
circumstances of apprehending the child and the offence
alleged to have been committed by him and the social
investigation report in Form 6 prepared by the Probation
Officer or the voluntary or non- governmental organisation,
along with the evidence produced by the parties for arriving
at a conclusion.
Rule 10A. Preliminary assessment into heinous offences
by Board.- (1) The Board shall in the first instance determine
whether the child is of sixteen years of age or above; if not, it
shall proceed as per provisions of section 14 of the Act.
(2) For the purpose of conducting a preliminary
assessment in case of heinous offences, the Board may take
the assistance of psychologists or psycho-social workers or
other experts who have experience of working with children
in difficult circumstances. A panel of such experts may be
made available by the District Child Protection Unit, whose
assistance can be taken by the Board or could be accessed
independently.
(3) While making the preliminary assessment, the child
shall be presumed to be innocent unless proved otherwise.
(4) Where the Board, after preliminary assessment under
section 15 of the Act, passes an order that there is a need for
trial of the said child as an adult, it shall assign reasons for the
Page 28 of 77
same and the copy of the order shall be provided to the child
forthwith.
Rule 11. Completion of Inquiry.- (1) Where after
preliminary assessment under section 15 of the Act, in cases
of heinous offences allegedly committed by a child, the
Board decides to dispose of the matter, the Board may pass
any of the dispositional orders as specified in section 18 of
the Act.
(2) Before passing an order, the Board shall obtain a social
investigation report in Form 6 prepared by the Probation
Officer or Child Welfare Officer or social worker as ordered,
and take the findings of the report into account.
(3) All dispositional orders passed by the Board shall
necessarily include an individual care plan in Form 7 for the
child in conflict with law concerned, prepared by a Probation
Officer or Child Welfare Officer or a recognised voluntary
organisation on the basis of interaction with the child and his
family, where possible.
(4) Where the Board is satisfied that it is neither in the
interest of the child himself nor in the interest of other
children to keep a child in the special home, the Board may
order the child to be kept in a place of safety and in a manner
considered appropriate by it.
Page 29 of 77
(5) Where the Board decides to release the child after
advice or admonition or after participation in group
counselling or orders him to perform community service,
necessary direction may also be issued by the Board to the
District Child Protection Unit for arranging such counselling
and community service.
(6) Where the Board decides to release the child in conflict
with law on probation and place him under the care of the
parent or the guardian or fit person, the person in whose
custody the child is released may be required to submit a
written undertaking in Form 8 for good behaviour and well-
being of the child for a maximum period of three years.
(7) The Board may order the release of a child in conflict
with law on execution of a personal bond without surety in
Form 9.
(8) In the event of placement of the child in a fit facility or
special home, the Board shall consider that the fit facility or
special home is located nearest to the place of residence of
the child’s parent or guardian, except where it is not in the
best interest of the child to do so.
(9) The Board, where it releases a child on probation and
places him under the care of parent or guardian or fit person
or where the child is released on probation and placed under
the care of fit facility, it may also order that the child be
placed under the supervision of a Probation Officer who shall
Page 30 of 77
submit periodic reports in Form 10 and the period of such
supervision shall be maximum of three years.
(10) Where it appears to the Board that the child has not
complied with the probation conditions, it may order the
child to be produced before it and may send the child to a
special home or place of safety for the remaining period of
supervision.
(11) In no case, the period of stay in the special home or the
place of safety shall exceed the maximum period provided in
clause (g) of sub-section (1) of section 18 of the Act.
x x x
Rule 13. 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.
Page 31 of 77
(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.
(5) 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 the child should be tried as an adult the Children’s Court
shall call for the file of the case from the Board and dispose of
the matter as per the provisions of the Act and these rules.
(6) The Children’s Court shall record its reasons while
arriving at a conclusion whether the child is to be treated as
an adult or as a child.
(7) Where the Children’s Court decides that there is no
need for trial of the child as an adult, and that it shall decide
the matter itself:
(i) It may conduct the inquiry as if it were
functioning as a Board and dispose of the matter in
accordance with the provisions of the Act and these
rules.
(ii) The Children’s Court, while conducting the
inquiry shall follow the procedure for trial in
summons case under the Code of Criminal
Procedure, 1973.
Page 32 of 77
(iii) The proceedings shall be conducted in
camera and in a child friendly atmosphere, and
there shall be no joint trial of a child alleged to be in
conflict with law, with a person who is not a child.
(iv) When witnesses are produced for
examination the Children’s Court shall ensure that
the inquiry is not conducted in the spirit of strict
adversarial proceedings and it shall use the powers
conferred by section 165 of the Indian Evidence Act,
1872 (1 of 1872).
(v) While examining a child in conflict with law
and recording his statement, the Children’s Court
shall address the child in a child-friendly manner in
order to put the child at ease and to encourage him
to state the facts and circumstances without any fear,
not only in respect of the offence which is alleged
against the child, but also in respect of the home and
social surroundings and the influence to which the
child might have been subjected.
(vi) The dispositional order passed by the
Children’s Court shall necessarily include an
individual care plan in Form 7 for the child in conflict
with law concerned, prepared by a Probation
Officer or Child Welfare Officer or recognized
Page 33 of 77
voluntary organisation on the basis of interaction
with the child and his family, where possible.
(vii) The Children’s Court, in such cases, may
pass any orders as provided in sub-sections (1) and
(2) of section 18 of the Act.
(8) Where the Children’s Court decides that there is a
need for trial of the child as an adult:
(i) It shall follow the procedure prescribed by
the Code of Criminal Procedure, 1973 of trial by
sessions and maintaining a child friendly
atmosphere.
(ii) The final order passed by the Children’s
Court shall necessarily include an individual care
plan for the child as per Form 7 prepared by a
Probation Officer or Child Welfare Officer or
recognized voluntary organisation on the basis of
interaction with the child and his family, where
possible.
(iii) Where the child has been found to be
involved in the offence, the child may be sent to a
place of safety till the age of twenty-one years.
(iv) While the child remains at the place of
safety, there shall be yearly review by the Probation
Officer or the District Child Protection Unit or aPage 34 of 77
social worker in Form 13 to evaluate the progress of
the child and the reports shall be forwarded to the
Children’s Court.
(v) The Children’s Court may also direct the
child to be produced before it periodically and at
least once every three months for the purpose of
assessing the progress made by the child and the
facilities provided by the institution for the
implementation of the individual care plan.
(vi) When the child attains the age of twenty-one
years and is yet to complete the term of stay, the
Children’s Court shall:
(a) interact with the child in order to
evaluate whether the child has undergone
reformative changes and if the child can be a
contributing member of the society.
(b) take into account the periodic reports
of the progress of the child, prepared by the
Probation Officer or the District Child Protection
Unit or a social worker, if needed and further
direct that institutional mechanism if inadequate
be strengthened.
(c) to (cd) xx xx
(vii) xx xx”
Page 35 of 77
EXTRACT OF RELEVANT PROVISION OF PROTECTION
OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012“Section 28. Designation of Special Courts.—
(1) For the purposes of providing a speedy trial, the State
Government shall in consultation with the Chief Justice of the
High Court, by notification in the Official Gazette, designate
for each district, a Court of Session to be a Special Court to
try the offences under the Act:
Provided that if a Court of Session is notified as a
children’s court under the Commissions for Protection of
Child Rights Act, 2005 (4 of 2006) or a Special Court
designated for similar purposes under any other law for the
time being in force, then, such court shall be deemed to be a
Special Court under this section.
(2) While trying an offence under this Act, a Special Court
shall also try an offence [other than the offence referred to in
subsection (1)], with which the accused may, under the Code
of Criminal Procedure, 1973 (2 of 1974) be charged at the
same trial.
(3) The Special Court constituted under this Act,
notwithstanding anything in the Information Technology Act,
2000 (21 of 2000) shall have jurisdiction to try offences under
section 67B of that Act in so far as it relates to publication or
transmission of sexually explicit material depicting childrenPage 36 of 77
in any act, or conduct or manner or facilitates abuse of
children online.”II WHETHER THE PERIOD PROVIDED FOR
COMPLETION OF PRELIMINARY ASSESSMENT
UNDER SECTION 14(3) OF THE ACT IS MANDATORY
OR DIRECTORY.
9. Section 15 of the Act enables the Board to make preliminary
assessment into heinous offences where such an offence alleged to have
been committed by a child between 16 and 18 years of age. The
preliminary assessment is to be conducted with regard to his mental and
physical capacity to commit such an offence, ability to understand the
consequences of the offence and the circumstances in which the offence
was allegedly committed. Proviso to the aforesaid section provides that
for making such an assessment the Board may take assistance of an
experienced psychologist or psycho-social worker or other experts.
Explanation thereto provides that the process of preliminary assessment
is not a trial but merely to assess the capacity of such a child to commit
and understand the consequences of the alleged offence. The
importance of the assistance from the expert is even evident from
Section 101(2) of the Act. While considering the appeal against an order
Page 37 of 77
passed under Section 15, the appellate authority can also take assistance
of experts other than those who assisted the Board.
9.1 The importance of the aforesaid provision was considered by
this Court in Barun Chandra Thakur’s case (supra) where
requirement of such assistance was held to be mandatory, even though
the words used in proviso to Section 15(1) and Section 101(2) of the Act
are ‘may’.
9.2 Section 14(3) of the Act provides that the preliminary
assessment in terms of Section 15 is to be completed by the Board within
a period of three months from the date of first production of the child
before the Board.
9.3 In case the Board after preliminary assessment under Section
15 of the Act comes to a conclusion that the trial of the CCL is to be
conducted as an adult, then the Board shall transfer the records to the
Children’s Court having jurisdiction.
9.4 The argument raised by learned counsel for the appellant
was that the CCL was produced before the Board on 03.11.2021. The
period of three months having expired on 02.02.2022, any order passed
Page 38 of 77
by the Board thereafter is non-est, and the trial of CCL cannot now be
transferred to the Children’s Court.
9.5 What we need to consider is as to whether the timeline for
the conclusion of inquiry as envisaged under Section 14 is mandatory or
directory?
9.6 As per the scheme of Section 14 of the Act, sub-section (1)
thereof provides that, when a CCL is produced before the Board, after
holding inquiry, it may pass order in relation to such CCL as it deems fit
under Section 17 and 18 of the Act.
9.7 Section 17 of the Act envisages the order regarding a child
not found to be in conflict with the law. Whereas Section 18 (1) envisages
an order passed in case a child is found to be in conflict with law. It
includes child of the age of 16 years and above, who is involved in a
heinous offence, but inquiry to be conducted by the Board.
9.8 Section 14(2) of the Act provides that the inquiry as
envisaged under Section 14(1) thereof shall be completed within a
period of four months from the date of first production of the child before
the Board. The time is extendable by the Board for a maximum period of
two months, for the reasons to be recorded. The consequences of non-
Page 39 of 77
conclusion of any such inquiry have been provided in Section 14(4) of
the Act, only with reference to petty offences. The aforesaid sub-section
provides that if inquiry by the Board under sub-section (2) for petty
offences remains inconclusive even after the extended period, the
proceedings shall stand terminated. Proviso to the aforesaid sub-section
provides that in case the Board requires further extension of time for
completion of inquiry into serious and heinous offences, the same shall
be granted by the Chief Judicial Magistrate or, as the case may be, the
Chief Metropolitan Magistrate, for reasons to be recorded in writing.
9.9 Meaning thereby that as far as inquiry of CCL, as envisaged
under Section 14(1) of the Act, by the Board for heinous offences is
concerned, there is no deadline after which either the inquiry cannot be
proceeded further or has to be terminated.
9.10 Now coming to the issue in hand. It is not in dispute that the
CCL has allegedly committed a heinous offences. The argument is with
reference to the period provided for the conclusion of preliminary
assessment under Section 15 of the Act and passing of an order under
Section 15(2) or 18(3) of the Act, namely as to whether the matter is to be
Page 40 of 77
enquired into by the Board or is to be transferred to the Children’s Court
for trial of the CCL as an adult.
9.11 We may add here that apparently the placement of Section
18(3) does not seem to be appropriate. Sub-sections (1) and (2) of
Section 18 deal with final orders to be passed by the Board on inquiry
against the CCL, whereas sub-section (3) envisages passing of an order
by the Board as to whether the trial of CCL is to be conducted by the
Children’s Court in terms of preliminary assessment, as envisaged in
Section 15 thereof. Passing of such an order could very well be placed in
Section 15 itself after sub-section (2) thereof.
9.12 The inquiry as envisaged in Section 15(1) of the Act enables
the Board to take assistance from experienced psychologists or psycho-
social workers or other experts. The proviso has nexus with the object
sought to be achieved. The Act deals with the CCL. The preliminary
assessment as envisaged in Section 15 has large ramifications, namely,
as to whether inquiry against the CCL is to be conducted by the Board,
where the final punishment, which could be inflicted is lighter or the trial
is to be conducted by the Children’s Court treating the CCL as an adult,
where the punishment could be stringent.
Page 41 of 77
9.13 As noticed earlier, the preliminary assessment into the
heinous offence by the Board in terms of Section 15(1) of the Act has to
be concluded within a period of three months in terms of Section 14(3) of
the Act. The Act as such does not provide for any extension of time and
also does not lay down the consequence of non-compilation of inquiry
within the time permissible. In the absence thereof the provision
prescribing time limit of completion of inquiry cannot be held to be
mandatory. The intention of the legislature with reference to serious or
heinous offences is also available from the language of Section 14 of the
Act which itself provides for further extension of time for completion of
inquiry by the Board to be granted by the Chief Judicial Magistrate or
Chief Metropolitan Magistrate for the reasons to be recorded in writing.
It is in addition to two months’ extension which the Board itself can grant.
9.14 As in the process of preliminary inquiry there is involvement
of many persons, namely, the investigating officer, the experts whose
opinion is to be obtained, and thereafter the proceedings before the
Board, where for different reasons any of the party may be able to delay
the proceedings, in our opinion the time so provided in Section 14(3)
cannot be held to be mandatory, as no consequences of failure have
Page 42 of 77
been provided as is there in case of enquiry into petty offences in terms
of Section 14(4) of the Act. If we see the facts of the case in hand, the
investigating officer had taken about two months’ time in getting the
report from the NIMHANS.
9.15 Where consequences for default for a prescribed period in a
Statute are not mentioned, the same cannot be held to be mandatory.
For this purpose, reference can be made to the following decisions of
this Court.
9.16 This Court in Topline Shoes Ltd vs Corporation Bank 17
while interpretating Section 13(2)(a) of the repealed Consumer
Protection Act, 1986 prescribing time limit for filing reply to the
complaint, held the same to be directory in nature. Relevant para 11
thereof is extracted below:
“11. We have already noticed that the provision as
contained under clause (a) of sub-section (2) of Section 13 is
procedural in nature. It is also clear that with a view to
achieve the object of the enactment, that there may be
speedy disposal of such cases, that it has been provided that
reply is to be filed within 30 days and the extension of time
may not exceed 15 days. This provision envisages that17
(2002) 6 SCC 33: 2002 INSC 287: (2002) 3 SCR 1167Page 43 of 77
proceedings may not be prolonged for a very long time
without the opposite party having filed his reply. No penal
consequences have however been provided in case
extension of time exceeds 15 days. Therefore, it could not be
said that any substantive right accrued in favour of the
appellant or there was any kind of bar of limitation in filing of
the reply within extended time though beyond 45 days in all.
The reply is not necessarily to be rejected. All facts and
circumstances of the case must be taken into account. The
Statement of Objects and Reasons of the Act also provides
that the principles of natural justice have also to be kept in
mind.”
(emphasis supplied)
9.17 This Court in Kailash vs Nanhku and Others 18 while
interpretating Order VIII Rule 1 CPC prescribing time limit for filing
written statement, held the same to be directory in nature. Relevant
paras 30 and 46 thereof are extracted below:
“30. It is also to be noted that though the power of the
court under the proviso appended to Rule 1 Order 8 is
circumscribed by the words “shall not be later than ninety
days” but the consequences flowing from non-extension of
time are not specifically provided for though they may be
read in by necessary implication. Merely because a18
(2005) 4 SCC 480: 2005 INSC 186: (2005) 3 SCR 289Page 44 of 77
provision of law is couched in a negative language implying
mandatory character, the same is not without exceptions. The
courts, when called upon to interpret the nature of the
provision, may, keeping in view the entire context in which
the provision came to be enacted, hold the same to be
directory though worded in the negative form.
x x x
46. We sum up and briefly state our conclusions as
under:
(i) - (iii) xxxx
(iv) The purpose of providing the time
schedule for filing the written statement under
Order 8 Rule 1 CPC is to expedite and not to
scuttle the hearing. The provision spells out a
disability on the defendant. It does not impose an
embargo on the power of the court to extend the
time. Though the language of the proviso to Rule 1
Order 8 CPC is couched in negative form, it does
not specify any penal consequences flowing from
the non-compliance. The provision being in the
domain of the procedural law, it has to be held
directory and not mandatory. The power of the
court to extend time for filing the written statement
beyond the time schedule provided by Order 8
Rule 1 CPC is not completely taken away.
Page 45 of 77
(v) Though Order 8 Rule 1 CPC is a part of
procedural law and hence directory, keeping in
view the need for expeditious trial of civil causes
which persuaded Parliament to enact the
provision in its present form, it is held that
ordinarily the time schedule contained in the
provision is to be followed as a rule and departure
therefrom would be by way of exception. A prayer
for extension of time made by the defendant shall
not be granted just as a matter of routine and
merely for the asking, more so when the period of
90 days has expired. Extension of time may be
allowed by way of an exception, for reasons to be
assigned by the defendant and also be placed on
record in writing, howsoever briefly, by the court
on its being satisfied. Extension of time may be
allowed if it is needed to be given for
circumstances which are exceptional, occasioned
by reasons beyond the control of the defendant
and grave injustice would be occasioned if the
time was not extended. Costs may be imposed
and affidavit or documents in support of the
grounds pleaded by the defendant for extension
of time may be demanded, depending on the facts
and circumstances of a given case.”(emphasis supplied)
Page 46 of 77
9.18 This Court in State of Bihar and Others vs Bihar RajyaBhumi Vikas Bank Samiti 19 while section 34 (5) and (6) of the
Arbitration and Conciliation Act, 1996 held the period prescribed in
sub-section (6) to be directory. The relevant paras 23, 25 and 26 are
extracted below:
“23. It will be seen from this provision that, unlike
Sections 34(5) and (6), if an award is made beyond the
stipulated or extended period contained in the section, the
consequence of the mandate of the arbitrator being
terminated is expressly provided. This provision is in stark
contrast to Sections 34(5) and (6) where, as has been stated
hereinabove, if the period for deciding the application under
Section 34 has elapsed, no consequence is provided. This is
one more indicator that the same Amendment Act, when it
provided time periods in different situations, did so intending
different consequences.
x x x
25. We come now to some of the High Court
judgments. The High Courts of Patna [Bihar Rajya Bhumi
Vikas Bank Samiti v. State of Bihar, 2016 SCC OnLine Pat
10104], Kerala [Shamsudeen v. Shreeram Transport Finance
Co. Ltd., 2016 SCC OnLine Ker 23728], Himachal Pradesh
[Madhava Hytech Engineers (P) Ltd. v. Executive Engineers,19
(2018) 9 SCC 472: 2018 INSC 648: (2018) 7 SCR 1147Page 47 of 77
2017 SCC OnLine HP 2212], Delhi [Machine Tool India Ltd. v.
Splendor Buildwell (P) Ltd., 2018 SCC OnLine Del 9551], and
Gauhati [Union of India v. Durga Krishna Store (P) Ltd., 2018
SCC OnLine Gau 907] have all taken the view that Section
34(5) is mandatory in nature. What is strongly relied upon is
the object sought to be achieved by the provision together
with the mandatory nature of the language used in Section
34(5). Equally, analogies with Section 80 CPC have been
drawn to reach the same result. On the other hand, in Global
Aviation Services (P) Ltd. v. Airport Authority of India [Global
Aviation Services (P) Ltd. v. Airport Authority of India, 2018
SCC OnLine Bom 233] , the Bombay High Court, in answering
Question 4 posed by it, held, following some of our
judgments, that the provision is directory, largely because no
consequence has been provided for breach of the time-limit
specified. When faced with the argument that the object of
the provision would be rendered otiose if it were to be
construed as directory, the learned Single Judge of the
Bombay High Court held as under: (SCC OnLine Bom para
133)
“133. Insofar as the submission of the
learned counsel for the respondent that if
Section 34(5) is considered as directory, the
entire purpose of the amendments would be
rendered otiose is concerned, in my view, there
is no merit in this submission made by the
Page 48 of 77
learned counsel for the respondent. Since there
is no consequence provided in the said
provision in case of non-compliance thereof, the
said provision cannot be considered as
mandatory. The purpose of avoiding any delay
in proceeding with the matter expeditiously is
already served by insertion of appropriate rule
in the Bombay High Court (Original Side) Rules.
The Court can always direct the petitioner to
issue notice along with papers and proceedings
upon other party before the matter is heard by
the Court for admission as well as for final
hearing. The vested rights of a party to
challenge an award under Section 34 cannot be
taken away for non-compliance of issuance of
prior notice before filing of the arbitration
petition.”
The aforesaid judgment has been followed by recent
judgments of the High Courts of Bombay [Maharashtra State
Road Development Corpn. Ltd. v. Simplex Gayatri
Consortium, 2018 SCC OnLine Bom 805] and Calcutta [Srei
Infrastructure Finance Ltd. v. Candor Gurgaon Two
Developers and Projects (P) Ltd., 2018 SCC OnLine Cal
5606].
Page 49 of 77
26. We are of the opinion that the view propounded
by the High Courts of Bombay and Calcutta represents the
correct state of the law. However, we may add that it shall be
the endeavour of every court in which a Section 34
application is filed, to stick to the time-limit of one year from
the date of service of notice to the opposite party by the
applicant, or by the Court, as the case may be. In case the
Court issues notice after the period mentioned in Section
34(3) has elapsed, every court shall endeavour to dispose of
the Section 34 application within a period of one year from
the date of filing of the said application, similar to what has
been provided in Section 14 of the Commercial Courts,
Commercial Division and Commercial Appellate Division of
High Courts Act, 2015. This will give effect to the object
sought to be achieved by adding Section 13(6) by the 2015
Amendment Act.”
(emphasis supplied)
9.19 This Court in C. Bright vs District and Others 20 while
interpretating the nature of section 14 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 held the period prescribed therein mandating the District
Magistrate to deliver possession of a secured asset within 30 days,
20
(2021) 2 SCC 392: 2020 INSC 633: (2020) 7 SCR 997
Page 50 of 77
extendable to an aggregate of 60 days, to be directory in nature. The
relevant paras 8 and 11 are extracted below:
“8. A well-settled rule of interpretation of the statutes
is that the use of the word “shall” in a statute, does not
necessarily mean that in every case it is mandatory that
unless the words of the statute are literally followed, the
proceeding or the outcome of the proceeding, would be
invalid. It is not always correct to say that if the word “may”
has been used, the statute is only permissive or directory in
the sense that non-compliance with those provisions will not
render the proceeding invalid [State of U.P. v. Manbodhan
Lal Srivastava, AIR 1957 SC 912] and that when a statute uses
the word “shall”, prima facie, it is mandatory, but the Court
may ascertain the real intention of the legislature by carefully
attending to the whole scope of the statute [State of U.P. v.
Babu Ram Upadhya, AIR 1961 SC 751]. The principle of literal
construction of the statute alone in all circumstances without
examining the context and scheme of the statute may not
serve the purpose of the statute [RBI v. Peerless General
Finance & Investment Co. Ltd., (1987) 1 SCC 424].
x x x
11. In a judgment reported as Remington Rand of
India Ltd. v. Workmen [Remington Rand of India Ltd. v.
Workmen, AIR 1968 SC 224], Section 17 of the Industrial
Page 51 of 77
Disputes Act, 1947 came up for consideration. The argument
raised was that the time-limit of 30 days of publication of
award by the Labour Court is mandatory. This Court held that
though Section 17 is mandatory, the time-limit to publish the
award within 30 days is directory inter alia for the reason that
the non-publication of the award within the period of thirty
days does not entail any penalty.”
(emphasis supplied)
9.20 As against above, where consequences of non-compliance
within the period prescribed for anything to be done in the statute have
been mentioned, the same was held to be mandatory by this Court in
SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P)
Ltd.21 It was with reference to Order VIII Rule 1 CPC as amended for
suits relating to commercial disputes in terms of Commercial Division
and Commercial Appellate Division of High Courts Act, 2015. Relevant
paras of the judgment are extracted hereinbelow:
“10. Several High Court Judgments on the amended
Order 8 Rule 1 have now held that given the consequence of
non-filing of written statement, the amended provisions of the
CPC will have to be held to be mandatory. See Oku Tech (P)
Ltd. v. Sangeet Agarwal, 2016 SCC OnLine Del 6601 by a21
(2019) 12 SCC 210: 2019 INSC 187: (2019) 3 SCR 1050Page 52 of 77
learned Single Judge of the Delhi High Court dated 11-8-2016
in CS (OS) No.3390 of 2015 as followed by several other
judgments including a judgment of the Delhi High Court in
Maja Cosmetics v. Oasis Commercial (P) Ltd., 2018 SCC
OnLine Del 6698.
11. We are of the view that the view taken by the
Delhi High Court in these judgments is correct in view of the
fact that the consequence of forfeiting a right to file the
written statement; non-extension of any further time; and the
fact that the Court shall not allow the written statement to be
taken on record all points to the fact that the earlier law on
Order 8 Rule 1 on the filing of written statement under Order
8 Rule 1 has now been set at naught.”
(emphasis supplied)
9.21 The judgment of this Court in Barun Chandra Thakur’s
case (supra) does not come to the rescue of the appellant. This Court in
the aforesaid judgment had only noticed the scheme of the Act in paras
59 and 60 and concluded that the conclusion of the inquiry and trials
under Act should be expeditious, is the scheme of the Act.
9.22 Hence, we are of the opinion that the time provided in
Section 14(2) of the Act to conduct inquiry is not mandatory but
directory. The time so provided in Section 14(3) can be extended by the
Page 53 of 77
Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the
case may be, for the reasons to be recorded in writing.
9.23 After holding that the period as provided for under Section
14(3) for completion of preliminary assessment is not mandatory, what
further? We deem it our duty to clarify the position further. For this
purpose, the tools of interpretation as were used in Afcons
Infrastructure Limited and Another vs Cherian Varkey Construction
Company Private Limited and Others22 could be aptly used to clarify
the position further. In the aforesaid case, the consideration before this
Court was the interpretation of Section 89 CPC. (See: paragraphs 20
and 21)
9.24 The rule of causus omissus i.e. ‘what has not been provided in
the Statute cannot be supplied by the courts’ in the strict rule of
interpretation. However, there are certain exceptions thereto. Para ‘19’
of the judgment of this Court in Surjit Singh Kalra vs. Union of India
and Another23 throws light thereon. The same is extracted below:
“19. True it is not permissible to read words in a
statute which are not there, but “where the alternative lies22
(2010) 8 SCC 24: 2010 INSC 431: (2010) 8 SCR 1053
23
(1991) 2 SCC 87: 1991 INSC 36: (1991) 1 SCR 364Page 54 of 77
between either supplying by implication words which appear
to have been accidentally omitted, or adopting a construction
which deprives certain existing words of all meaning, it is
permissible to supply the words” (Craies Statute Law, 7th
edn., p.109). Similar are the observations in Hameedia
Hardware Stores v. B. Mohan Lal Sowcar, (1988) 2 SCC 513,
524-25 where it was observed that the court construing a
provision should not easily read into it words which have not
been expressly enacted but having regard to the context in
which a provision appears and the object of the statute in
which the said provision is enacted the court should construe
it in a harmonious way to make it meaningful. An attempt
must always be made so to reconcile the relevant provisions
as to advance the remedy intended by the statute. (See:
Sirajul Haq Khan v. Sunni Central Board of Waqf, 1959 SCR
1287, 1299:AIR 1959 SC 198)”
(emphasis supplied)
9.25 The issue was thereafter considered by this Court in Rajbir
Singh Dalal (Dr.) vs. Chaudhari Devi Lal University, Sirsa and
Another 24 . In the aforesaid case this Court observed as: ‘where the
alternative lies between either supplying by implication words which
appear to have been accidentally omitted, or adopting a strict construction
which leads to absurdity or deprives certain existing words of all meaning,
24
(2008) 9 SCC 284: 2008 INSC 913: (2008) 11 SCR 992
Page 55 of 77
and in this situation it is permissible to supply the words (vide Principles of
Statutory Interpretation by Justice G.P. Singh, 9th Edn., pp.71-76)’. This
Court also considered the traditional principles of interpretation known
as the ‘Mimansa rules of interpretation’. The issue under consideration
in the aforesaid case was regarding requisite academic qualification for
appointment to the post of Reader in the University in Public
Administration. Applying the tools of interpretation, this Court opined
that ‘relevant subject’ should be inserted in the qualification required for
the post of Reader after the words ‘at the Masters degree level’ to give
the rules a purposive interpretation by filling in the gap.
9.26 The same principles were followed by this Court in Central
Bureau of Investigation, Bank Securities and Fraud Cell vs. Ramesh
Gelli and Others25.
9.27 In our opinion, the guidance as is evident from sub-section
(4) of section 14 of the Act enabling the Chief Judicial Magistrate or
Chief Metropolitan Magistrate to extend the period of inquiry as
envisaged under Section 14(1), shall apply for extension of period as
envisaged in sub-section (3) also. Such an extension can be granted for
25
(2016) 3 SCC 788: 2016 INSC 134: (2016) 1 SCR 762
Page 56 of 77
a limited period for the reasons to be recorded in writing. While
considering the prayer for extension of time, the delay in receipt of
opinion of the experts shall be a relevant factor. This shall be in the spirit
of the Act and giving the same a purposive meaning.
9.28 We approve the views expressed by the High Court of
Madhya Pradesh in Bhola vs State of Madhya Pradesh26 and the High
Court in Delhi in CCL vs State (NCT) of Delhi27 who while dealing with
the provisions of section 14 of the Act have held that the time period
prescribed for completion of the preliminary assessment is not
mandatory but merely directory in nature. We also approve the views
expressed by the High Court of the Punjab and Haryana in Neeraj and
Others vs State of Haryana 28 and by the High Court of Delhi in X
(Through his Elder Brother) vs State 29 who also expressed similar
views while dealing with the pari materia provisions of the repealed
Juvenile Justice (Care and Protection of Children) Act, 2000.
26
2019 SCC OnLine MP 521
27
2023 SCC OnLine Del 5063
28
2005 SCC OnLine P&H 611
29
2019 SCC OnLine Del 11164
Page 57 of 77
III EXERCISE OF REVISIONAL POWER BY THE HIGH
COURT
10. The order under challenge in the present appeal was passed
by the High Court in revision filed by the complainant, impugning the
order dated 10.04.2023 passed by the Board vide which the application
filed by her under section 19 of the Act for termination of proceedings
before the Board and transferring the case to the Children’s Court for
trial, was rejected. It was for the reason that the order passed by the
Principal Magistrate on 05.04.2022 was final in terms of Section 7(4) of
the Act, as no majority opinion could have been given.
10.1 In terms of the provision of law, the CCL could have
grievance against that order and availed of his remedy against the same
but, the proceedings were allowed to be continued further. Lesser said
the better as to how two members of the Board without the Principal
Magistrate being there had conducted the proceedings taking a
different view in the matter. It is relevant to note that when subsequent
order was passed by two members of the Board on 12.04.2022, the
Principal Magistrate had already been transferred, as is evident from
impugned order of the High Court (para 19). In fact, the order passed
by the two members of the Board on 12.04.2022 directing inquiry in the
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case by the Board was non-est in the eyes of law, if considered strictly in
terms of Section 7(4) of the Act. From various orders passed by the
Board, it is evident that the inquiry could not proceed further either on
account of the absence of the Presiding Officer or APP (Public
Prosecutor) or the witnesses summoned. At that stage, an application
was moved by the complainant for termination of proceedings before
the Board and transferring the matter to the Children’s Court, to which
objections were filed by the appellant. The Board vide order dated
10.04.2023 dismissed the application holding that the complainant had a
right of appeal against the order dated 12.04.2022, which could have
been availed and the Board does not have any power to review its order.
The aforesaid order was challenged by the complainant before the High
Court by filing the Revision Petition invoking power under Section 397
read with Section 399 Cr.P.C. It is the order passed in the aforesaid
petition which is impugned before this Court.
10.2 Firstly, the issue is mentioning of Section 397 read with
Section 399 Cr. P.C for filing revision petition before the High Court and
about its maintainability on that account. Nothing hinges on that, as it
was mere mentioning of a wrong section in the petition. The High Court
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otherwise has the power to deal with the subject-matter. Section 102 of
the Act enables the High Court to exercise its revisional powers with
reference to any order or proceeding by the Board or the Children’s
Court. Hence, on that account we do not find that the revision should
have been dismissed.
10.3 Another argument raised by learned counsel for the
appellant was that there being remedy of appeal available with the
complainant against the order dated 12.04.2024 vide which two
members of the Board had directed inquiry into the offence allegedly
committed by CCL by the Board. In our opinion, even though such a
remedy may be available to the complainant which should normally be
availed, but what is evident from the facts of the case is that there was an
earlier order passed by the Principal Magistrate on 05.04.2022, which
was final regarding conduct of trial of the CCL by the Children’s Court,
still subsequently two members of the Board without the Principal
Magistrate being there passed an order on 12.04.2022 directing inquiry
into the offence by the Board. In fact, the subsequent order was totally
non-est. Even if in such a situation the aforesaid order was not
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challenged by availing the remedy of appeal, in our opinion the revision
under Section 102 of the Act cannot be said to be not maintainable.
10.4 Firstly, there is no time limit provided for filing a revision
therein, and secondly it could be on an application filed by any of the
parties. The High Court can exercise its revisional powers for satisfying
itself as to the legality or propriety of any such order and may pass such
order in relation thereto as it thinks fit. Besides the legality of the order
dated 12.04.2022, the case in hand is such where even the propriety of
the proceeding was also in question. The proceedings before the Board
could not continue after the passing of the order dated 05.04.2022, in
terms of Section 7(4) of the Act.
10.5 Hence, non-availment of the remedy of appeal by the
complainant in such a situation cannot be held to be fatal. We may also
add here that even the appellant could have availed the remedy of
appeal against the order dated 05.04.2022, but he thought of continuing
before the Board in a non-est proceeding.
Page 61 of 77
IV ANOMALY IN SECTION 101 OF THE JUVENILE
JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2015
(A) REGARDING THE TERMS USED AS
‘CHILDREN’S COURT’ AND ‘COURT OF
SESSIONS’
11. Section 101 of the Act provides for appeal against various
orders as provided therein. Sub-section (1) thereof provides that any
person aggrieved by an order made by the Committee or the Board
under the Act may within 30 days from the date of such order prefer an
appeal to the Children’s Court, with an exception that against decision
of the Committee relating to foster care and sponsorship care the appeal
shall lie to the District Magistrate. The term ‘Committee’ has been
defined in Section 2(22) of the Act to mean ‘Child Welfare Committee’
constituted under Section 27 thereof.
The proviso to sub-section (1) of section 101 provides that the
Court of Sessions or District Magistrate, as the case may be, may
entertain the appeal after expiry of the period of 30 days in case
sufficient cause is shown for the delay in filing.
11.1 Sub-section (2) of Section 101 provides that an appeal against
the order passed by the Board after making preliminary assessment
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under Section 15 of the Act shall lie before the Court of
Sessons. While deciding the appeal, the Court can take assistance of
experienced psychologists and medical specialists, other than those
whose assistance was taken by the Board while passing the order
impugned. It shows independent examination of the issue. Sub-section
(4) provides that, no second appeal will be maintainable from the order
passed by the Court of Sessions. In Barun Chandra Thakur’s case
(supra) the provisions have been held to be mandatory.
11.2 Some anomalies are evident in the aforesaid proviso, as
pointed out by the learned counsel for the parties at the time of hearing.
Their contention was that the anomalies should also be addressed, so as
to streamline the procedure in future. We also think in the same
direction, keeping in view the spirit of law.
11.3 The term Court of Sessions as such has not been defined in
the Act. The trial of CCL, who is of the age of 16 years or above and is
involved in a heinous offence is to be conducted by the Children’s
Court, treating him as an adult.
11.4 ‘Children’s Court’ has been defined in the Act in Section
2(20) to mean the Court established under the 2005 Act or a Special
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Court established under the 2012 Act. Where such Courts are not
existing, the Court of Sessions shall have jurisdiction to try the offence
under the Act. Meaning thereby the Presiding Officer of the Children’s
Court and the Court of Sessions have been put in same bracket. There is
no doubt with the proposition that a Sessions Judge would include an
Additional Sessions Judge as well.
11.5 Section 25 of the 2005 Act provides that for providing speedy
trial of offences against children or violation of child rights, the State
Government in concurrence with the Chief Justice of the High Court by
notification specify at least a Court in the State or for each district a
Court of Sessions to be a Children’s Court. Meaning thereby the Special
Court under the 2005 Act is at the level of the Sessions Court.
11.6 Section 101(1) of the Act deals with filing of appeals against
certain orders passed by the Board or the Committee before the
Children’s Court, as the case may be. The proviso to the aforesaid sub-
section provides that in case there is any delay in filing the appeal, the
power of condonation has been vested with the Court of Sessions. The
word ‘Children’s Court’ is not mentioned, though appeal is maintainable
before Children’s Court.
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11.7 Sub-section (2) of Section 101 of the Act provides for an
appeal against an order passed by the Board under Section 15 of the
Act. The appellate authority is stated to be Court of Sessions.
11.8 Rule 13 of the 2016 Rules deals with the procedure in relation
to Children’s Court and Monitoring Authorities. Sub-rules (3) and (4)
thereof which deal with appeal filed under Section 101(2) of the Act refer
the appellate authority as the ‘Children’s Court’ though in Section 101(2)
of the Act appeal is stated to be maintainable before the Court of
Sessions. From the above provision also, it is evident that the words
‘Court of Sessions’ and the ‘Children’s Court’ have been used
interchangeably.
12. Section 102 of the Act provides for revisional power of the
High Court. This again talks of calling for records of any proceedings in
which a Committee or a Board or Children’s Court or Court has passed
an order. It does not talk of exercise of revisional power against the
order passed by the Sessions Court. To put the record straight, it is
added that the term ‘court’ has been defined in the Act in Section 2(23)
to mean a civil court, which has jurisdiction in matters of adoption and
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guardianship and may include the District Court, Family Court and City
Civil Courts.
12.1 Similarly, sub-section (2) provides that against an order
passed by the Board after preliminary assessment under Section 15 of
the Act, the appeal is maintainable before the Court of Sessions. The
Board is headed by the Principal Magistrate. Here, the word Children’s
Court is not mentioned.
12.2 From a conjoint reading of the aforesaid provisions of the Act
and the 2016 Rules, in our opinion, wherever words ‘Children’s Court’ or
the ‘Sessions Court’ are mentioned both should be read in alternative.
In the sense where Children’s Court is available, even if the appeal is
said to be maintainable before the Sessions Court, it has to be
considered by the Children’s Court. Whereas where no Children’s
Court is available, the power is to be exercised by the Sessions Court.
(B) TIME FOR FILING APPEAL AGAINST ORDER
OF THE BOARD UNDER SECTION 15 OF THE
ACT
13. Though, the right of appeal has been provided in Section
15(2) and Section 101(2) of the Act against an order passed under
Section 18(3) after preliminary assessment under Section 15 of the Act,
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however, neither any time has been fixed for filing the appeal nor any
provision is provided for condonation of delay in case need be.
13.1 In our opinion, the same being an omission. In order to make
the Act workable and putting timelines for exercise of statutory right of
appeal which always is there, we deem it appropriate to fill up this gap,
which otherwise does not go against the scheme of the Act. Hence, for
the period for filing of appeal in Section 101(2), we take guidance from
Section 101(1) of the Act. The period provided for filing the appeal
therein is 30 days and in case sufficient cause is shown the power to
condone the delay has also been conferred on the appellate authority.
Timeline has also been provided for decision of appeal.
13.2 Ordered accordingly.
(C) REGARDING SECOND APPEAL
14. In sub-section (4), it is provided that no second appeal shall
lie from the order of Sessions Court. Sub-section (5) provides for appeal
to the High Court against an order of Children’s Court, for this
procedure of CrPC is applicable, as if the second appeal may lie against
the order passed by the Children’s Court. High Court has also been
conferred revisional powers under Section 102 of the Act.
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14.1 The aforesaid provisions will also need examination in detail
for seamless working of the provisions of the Act removing anomalies.
However, as this is not the issue involved in the present appeal and no
arguments have been addressed thereon, hence, we leave this issue
open to be considered in some appropriate case.
V VALIDITY OF ORDER PASSED BY THE BOARD ON
05.04.2022
15. In the case in hand, after receipt of the report dated
01.02.2022 submitted by the Department of Child and Adolescent
Psychiatry, NIMHANS-DWCO, the arguments of learned counsel for the
parties were heard by the Board and vide order dated 29.03.2022 the
matter was kept for orders on 05.04.2022. On that day, the Principal
Magistrate passed the order, after considering the preliminary
assessment report and the social investigation report, that the CCL is to
be tried by the Children’s Court as an adult. The records of the case
were directed to be transferred to the Children’s Court, Bengaluru.
When the file was put up before the member of the Board for signature,
he recorded as under:
“I am having a dissenting view to above said order. I will
pass detailed order on next date of hearing.”Page 68 of 77
15.1 The matter was directed to be put up on 12.04.2022. On thenext date, the Principal Magistrate being not there and another person
having been appointed as a member of the Board, the arguments
apparently were reheard by the two members of the Board in the
absence of the Principal Magistrate, and it was directed that enquiry into
the offence allegedly committed by the CCL is to be conducted by the
Board.
15.2 Section 7 of the Act deals with the procedure in relation to the
Board. Sub-Section 3 thereof provides that the Board may act
notwithstanding absence of any member of the Board. No order passed
by the Board shall be invalid by reason only of absence of any member
during any stage of proceedings. The proviso thereto provides that at
the time of final disposal of the case or making an order under Section
18(3) of the Act, there shall be at least two members including the
Principal Magistrate.
15.3 When the arguments in the matter were heard with reference
to the order under Section 18(3) of the Act, and the order was reserved
on 29.03.2022 the Board consisted of a Principal Magistrate and a
Member.
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15.4 Section 7(4) of the Act provides that in case there is any
difference of opinion in the interim or the final disposal, the opinion of
the majority shall prevail. Where there is no such majority, the opinion
of the Principal Magistrate shall prevail.
15.5 A perusal of the record shows that after the order was
reserved on 29.03.2022, the matter was listed on 05.04.2022 for orders.
The Principal Magistrate recorded his opinion that the CCL is to be tried
by the Children’s Court. The other member of the Board recorded his
dissent though, no detailed reasons were given as such. In terms of
Section 7(4) of the Act, the opinion of the majority is to prevail. The case
in hand does not fall in that category, as the Board on that date consisted
of the Principal Magistrate and a Member, and the Member had
recorded his dissent. In such a situation the opinion of the Principal
Magistrate will prevail. In the case in hand the order was signed by the
Principal Magistrate. Even if the other member of the Board had not
signed the order and had merely mentioned that he had a dissenting
view, without any reasons being recorded, the order of the Principal
Magistrate will prevail. Needless to add that reasons in any order are
‘heart and soul’ and are helpful for the next higher Court to examine the
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matter. The proceedings with reference to the opinion of the Board
regarding inquiry or trial of the CCL, either by the Board or Children’s
Court, stood culminated. Any further proceedings in that matter were
non-est and without jurisdiction. Much less to say anything more about
the same. The opinion of the High Court in that regard does not call for
any interference.
VI REMEDY OF APPEAL TO APPELLANT
16. In our opinion, considering the facts of the case in hand, the
appellant deserves to be granted that right.
16.1 Initially the application filed by the complainant was rejected
by the Board. Aggrieved against the same, the complainant preferred
revision before the High Court. The High Court decided the same
merely on the issue of finality of the opinion of the Board. It was in terms
of Section 7(4) of the Act, which provides that where majority opinion is
not possible, the opinion of the Principal Magistrate shall prevail. An
appeal is a valuable right. The arguments, if any, which the CCL may
have against the order dated 05.04.2022 passed by the Board directing
for his trial by the Children’s Court, have not been considered. The
impugned order only noticed as fact that the Board had formed opinion
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after considering the opinion received from NIMHANS. If scheme of the
Act is considered, an appeal against order of the Board passed under
Section 15 of the Act lies to the Court of Sessions. The appellate
authority, to examine the issues, is entitled to get the assistance of
experienced psychologists and medical specialists other than those
whose assistance has been obtained by the Board. Hence, independent
examination is envisaged. The said process has not been followed in the
case in hand. We do not want to prejudice the rights of the parties in that
regard.
16.2 Hence, we are of the opinion that the CCL can exercise his
right of appeal against order dated 05.04.2022 passed by the Board
within 10 days and appeal, if any filed, shall be decided by the appellate
authority within two months thereafter.
VII ADDITIONAL ISSUES
17. Before parting with the judgment, we quote with approval
para 25 of the impugned order passed by the High Court. The same is
extracted below:
“25. One more point observed by this Court is that
while signing the order sheet and also orders, the names of
the Judicial Member as well as Non-judicial Members are notPage 72 of 77
noted below their signatures. This is coming in the way of
anyone knowing the names of the members who were
present and who were absent. Therefore, only on the basis of
signatures, this Court was able to distinguish as to who was
the Non-Judicial Member present on 05.04.2022 and who was
the third member who joined in expressing dissenting
opinion on 12.04.2022. This Court is of the considered
opinion that it would be appropriate to mention the names of
the members below their signatures, which would also help
the transparency in conduct of the said proceedings and put
the members on guard about their roles played in the said
proceedings.”17.1 The High Court has noticed an important issue which arises
in judicial and quasi-judicial proceedings throughout the country. The
Presiding Officers or Members of the Board, as the case in hand, or
Tribunals do not mention their names when the order is passed. As a
result of which it becomes difficult to find out later on, as to who was
presiding the Court or Board or Tribunal or was the member at the
relevant point of time. There may be many officers with the same name.
Insofar as the judicial officers are concerned, unique I.D. numbers have
been issued to them.
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17.2 We expect that wherever lacking, in all orders passed by the
Courts, Tribunals, Boards and the quasi-judicial authorities, the names of
the Presiding Officers or the Members be specifically mentioned in the
orders when signed, including the interim orders. If there is any
identification number given to the officers, the same can also be added.
17.3 The matter does not rest here. In many of the orders the
presence of the parties and/or their counsels is not properly recorded.
Further, it is not evident as to on whose behalf adjournment has been
sought and granted. It is very relevant fact to be considered at different
stages of the case and also to find out as to who was the party delaying
the matter. At the time of grant of adjournment, it should specifically be
mentioned as to the purpose therefor. This may be helpful in imposition
of costs also, finally once we shift to the real terms costs.
VIII RELIEFS AND DIRECTIONS
18. In view of our aforesaid discussions, the present appeal is
disposed of with the following directions:
(i) The provision of Section 14(3) of the Act,
providing for the period of three months for completion of a
preliminary assessment under Section 15 of the Act, is not
mandatory. The same is held to be directory. The period can
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be extended, for the reasons to be recorded in writing, bythe Chief Judicial Magistrate or, as the case may be, the Chief
Metropolitan Magistrate.
(ii) The words ‘Children’s Court’ and ‘Court of
Sessions’ in Juvenile Justice (Care and Protection of Children)
Act, 2015 and the 2016 Rules shall be read interchangeably.
Primarily jurisdiction vests in the Children’s Court. However,
in the absence of constitution of such Children’s Court in the
district, the power to be exercised under the Act is vested
with the Court of Sessions.
(iii) Appeal, under Section 101(2) of the Act against an
order of the Board passed under Section 15 of the Act, can be
filed within a period of 30 days. The appellate court can
entertain the appeal after the expiry of the aforesaid period,
provided sufficient cause is shown. Endeavour has to be
made to decide any such appeal filed within a period of 30
days.
(iv) There is no error in exercise of revisional
jurisdiction by the High Court in the present matter.
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(v) There is no error in the order dated 15.11.2023
passed by the High Court dealing with the procedure as
provided for under the Act in terms of Section 7(4) thereof.
(vi) Order passed by the Board as signed by the
Principal Magistrate on 05.04.2022 was final. However, the
same is subject to right of appeal of the aggrieved party. The
appellant shall have the right of appeal against the aforesaid
order within a period of 10 days from today. The appellate
authority shall make an endeavour to decide the same within
a period of two months from the date of filing.
(vii) In all the orders passed by the Courts, Tribunals,
Boards and the Quasi-Judicial Authorities the names of the
Presiding Officer and/or the Members who sign the orders
shall be mentioned. In case any identification number has
been given, the same can also be added.
(viii) The Presiding Officers and/or Members while
passing the order shall properly record presence of the
parties and/or their counsels, the purpose for which the
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matter is being adjourned and the party on whose behalf the
adjournment has been sought and granted.
19. A copy of the judgment be sent to all the Registrar Generals
of High Courts for further circulation amongst the Judicial Officers and
the Members of the Juvenile Justice Boards, the Directors of the National
Judicial Academy and the State Judicial Academies.
……………….……………..J.
(C.T. RAVIKUMAR)
……………….……………..J.
(RAJESH BINDAL)
New Delhi
May 07, 2024.
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