IMPORTANT POINT
Substantive sentence of imprisonment of a juvenile offender can be suspended during pendency of appeal.

ORDER

This is an application for suspension of substantive sentence of imprisonment. The applicant/appellant has been convicted by learned Special Judge (POCSO), Aurangabad, vide order dated 17.01.2023 in Special Case (POCSO) No.161 of 2019, for the offences punishable under Sections 376(2)(i) of Indian Penal Code and Section 4(2) of the Protection of Children from Sexual Offences Act and therefore, sentenced to suffer rigorous imprisonment for ten years and to pay fine, with default stipulation.

2. Heard learned counsel for the parties.

3. Learned counsel for the applicant would mainly submit that there is non-compliance of certain mandatory provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (“Act of 2015”) and therefore, the application deserves to be allowed. On merits of the case as well, he would submit it to be a fit case for suspension of substantive sentence of imprisonment. He adverted the Court’s attention to the inconsistencies between the victim’s statement to the police and her evidence before the Court.

4. Learned counsel representing the victim filed affidavit-in-reply. The affidavit contained the reasons given by the trial Court with appreciation of the evidence in the case. According to learned counsel, the victim was of the age of 7 years at the material time. According to him, Section 19 of the Act of 2015 is not mandatory. The word “may” appearing in sub-section (1) was adverted to in support of his submissions. According to learned counsel, the applicant did not prefer appeal against the order passed under Section 15 of the Act. The applicant, therefore, could not be heard to say that there was non-compliance of Section 19 of the Act of 2015. The order passed by the Juvenile Justice Board about preliminary assessment had become final and then only, the applicant was tried. According to learned counsel, time is not ripe for release of the applicant on bail.

Learned APP reiterated the submissions made by learned counsel representing the victim.

5. Considered the submissions advanced. Perused the impugned judgment and relevant provisions of the Act of 2015.

6. The applicant allegedly committed aggravated penetrative sexual assault on the victim, aged seven years at the relevant time. True, the applicant appears to have committed a heinous offence and he, therefore, may not be entitled for grant of application on factual merits of the case, but for non-compliance of certain mandatory provisions of the Act of 2015. It would, therefore, be necessary to reproduce the relevant provisions thereof.

7. Section 2(13) of the Act of 2015 defines the term “child in conflict with law”, to mean - 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) defines “Children’s Court” to mean - 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 25 of the Commissions for Protection of Child Rights Act, 2005, reads:—

Children’s Courts.—For the purpose of providing speedy trial of offences against children or of violation of child rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify at least a court in the State or specify for each district, a Court of Session to be a Children’s Court to try the said offences:—

Provided that nothing in this section shall apply if—

(a) a Court of Session is already specified as a special court; or

(b) a special court is already constituted,

for such offences under any other law for the time being in force.

In short, it is the Court of Session, which is competent to deal with/try heinous offence commit