JHARKHAND HIGH COURT
Ananda Sen and Gautam Kumar Choudhary, JJ.
Sobhnath Bhogta @
Somnath Pradhan and Anr. – Appellants
versus
State of Jharkhand – Respondent
Criminal Appeal (D.B.) No.93 of 2022 with Criminal Appeal (D.B.) No.295 of 2022
Decided on 12.9.2024

IMPORTANT POINTS
(1) Bail petition – There exists difference between a child below 16 years and those who are accused of or found guilty for a heinous offence and above 16 years – Section 12 of J.J. Act will have no application after conviction for offence and Section 389 Cr.P.C. will apply.
(2) Bail petition – Gang rape and other charges – If a juvenile is seeking to take benefits and claiming himself to be physically and mentally incapable and also not capable to understand consequence of committing heinous offence, and is between 16 and 18 years on the date of occurrence, he has to take that plea immediately at very first instance – He cannot be permitted to take this plea at a later stage.

Headnote:

Per Gautam Kumar Choudhary, J.

Juvenile Justice (Care and Protection of Children) Act, 2015 – Sections 12 and 15 – Indian Penal Code, 1860 – Sections 376D, 341 and 342/34 – Criminal Procedure Code, 1973 – Section 389 – Bail petition – Juvenile accused – Gang rape and other charges – Appellant has been found guilty and convicted for offence under Section 376D of IPC which is punishable for minimum sentence of 20 years’ imprisonment – In case of a child who has crossed age of 18 years, it will not be feasible for Board to conduct psychological assessment of child regarding his capacity to understand consequence of his act at the time of commission of offence – There exists difference between a child below 16 years and those who are accused of or found guilty for a heinous offence and above 16 years – In former case, any judgment or order passed is liable to be set aside if he is found to be below 16 years of age at any stage – Same is not the case with those who have completed 16 years of age and are accused of heinous offence – Appellant who was aged 17 years 10 months 23 days on the date of occurrence, cannot claim any prejudice for trial having been held not by Children Court, but by Additional Sessions Judge under provisions of Cr.P.C. – Section 12 of J.J. Act will have no application after conviction for offence and Section 389 Cr.P.C. will apply – Interlocutory application of appellant for grant of bail under Section 12 of Act, rejected – Appellant given liberty to prefer application for suspension of sentence under Section 389 of Cr.P.C. – Case of appellant be sent to Juvenile Justice Board, for carrying out necessary enquiry for determination of age of appellant on the date of occurrence.(Paras 4, 5, 6, 7, 8 and 11)

Per Ananda Sen, J. [Separate Assenting View]

(A) Juvenile Justice (Care and Protection of Children) Act, 2015 – Sections 12, 15 and 18 – Bail petition – Juvenile accused – Gang rape and other charges – Plea of juvenility, if not taken before Trial Court, can be raised before High Court at appellate stage or even before Supreme Court – If accused is adjudged as juvenile, appropriate order can be passed – However, situation has changed after Amendment Act of 2015 – If Board finds that child above 16 years is having sound mental and physical capacity to commit offence and has ability to understand consequences of heinous crime and circumstances thereto, he has to be tried as an adult by Children’s Court – Accused at very initial stage of trial, has to take plea that he is between 16 years and 18 years, to invoke Section 15 of Act read with Section 18 of Act – It is necessary because it would be impossible to go back in time to assess his mental and physical status and his capacity and his ability to understand the consequence of offence and circumstances thereof – If plea of juvenility, that he is between 16 years to 18 years, is allowed to be taken at any point of time, it will amount to misusing provision of law.(Paras 14, 18 and 20)

(B) Juvenile Justice (Care and Protection of Children) Act, 2015 – Sections 12, 15 and 18 – Indian Penal Code, 1860 – Sections 376D, 341 and 342/34 – Bail petition – Juvenile accused – Gang rape and other charges – If a juvenile is seeking to take benefits and claiming himself to be physically and mentally incapable and also not capable to understand consequence of committing heinous offence, and is between 16 and 18 years on the date of occurrence, he has to take that plea immediately at very first instance – He cannot be permitted to take this plea at a later stage – In instant case, offence is of rape of a minor girl and that too by threatening her with fire arms along with others – Offence is heinous and considering age of appellant, which is few days short of 18 years, it cannot be said that he did not have mental and physical capability – Now, age of appellant is more than 25 years and it is impossible to assess what was his mental status and ability when he was between 16 years and 18 years.(Paras 25 and 26)

(C) Juvenile Justice (Care and Protection of Children) Act, 2015 – Sections 12 and 15 – Jurisdiction – There is a concept of latent lack of jurisdiction and patent lack of jurisdiction – If an authority lacks jurisdiction to the effect that subject matter is not amenable to his decision, case is of patent lack of jurisdiction – If a child, prior to amendment, since there was no sub-classification of age between 16 years and 18 years and as per law, all children who were less than 18 years, even in heinous offences, were tried by Juvenile Justice Board, any other Court lacked jurisdiction to try the offence – Even at any stage, if plea of juvenility is taken and he is held to be below 18 years, regular Court lacked jurisdiction to hear the case – This patent lack of jurisdiction goes to root and it was open to accused to take plea of juvenility at any point of time.(Para 22)

Result: Interlocutory application rejected.