IMPORTANT POINT
Procedural amendments are presumed to be retrospective in nature unless the amending statute expressly or impliedly provides otherwise. The forum for legal proceedings is a matter of procedural law, and the introduction of 86(4) of the JJ Act made all offences covered by it triable by the Children’s Court.

ORDER :

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure.

2. The prayer in this petition is to set aside Annexure A3 order in CMP No.16060/2023 in C.P.No.94/2023 in Crime No.1766/2018 on the files of the Judicial First Class Magistrate Court-I, Nedumangad.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. As per order dated 07.02.2024, the learned Magistrate proceeded to commit the case to Sessions Court and dismissed CMP No.16060/2023, holding that this is a case to be tried by the Children's Court/Sessions Court. In paragraph Nos. 6, 7 and 8 the learned Magistrate extracted the legal position and held in paragraph No.9 that in the light of 86(4) of the Juvenile Justice (Care and Protection of Children) Act (hereinafter referred to as 'JJ Act' for short), the learned Magistrate has no jurisdiction and the case has to go for trial before the Children's Court.

5. In this matter, the point argued by the learned counsel for the petitioner is that this crime was registered for an occurrence on 04.12.2018. During the time of occurrence, Section 86(4) of the JJ Act, a new provision introduced as per the amendment, came into force from 01.09.2022, was not in force. Since the amendment has no retrospective operation, the present case cannot be transferred in tune with the mandate of Section 86(4) of the JJ Act and the Magistrate alone has jurisdiction to try the case. Accordingly, he prays for setting aside the order impugned.

6. Whereas it is submitted by the learned Public Prosecutor that Section 86(4) of the JJ Act has application in the pending cases also and therefore, the learned Magistrate rightly passed Annexure A3 order and the order impugned does not require any interference.

7. Extracting the legal provisions prior to amendment with effect from 01.09.2022, Section 86 of the JJ Act provided as under :

“Section 86. (1) Where an offence under this Act is punishable with imprisonment for a term more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Children’s Court.

(2) Where an offence under this Act is punishable with imprisonment for a term of three years and above, but not more than seven years, then, such offence shall be cognizable, non-bailable and triable by a Magistrate of First Class.

(3) Where an offence, under this Act, is punishable with imprisonment for less than three years or with fine only, then, such offence shall be non-cognizable, bailable and triable by any Magistrate”

8. After the amendment, Section 86(4) of the JJ Act has been introduced and the same reads as under :

“86(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or the Commission of protection of Child Rights Act, 2005 or the Protection of Children from Sexual Offences Act, 2012, offences under this Act shall be triable by the Children’s Court.”

9. The sum and substances of the argument mooted by learned counsel for the petitioner is that the amendment is not retrospective. In this connection, it is necessary to refer the decisions of the Hon’ble Apex Court in New India Insurance Co. Ltd. v. Shanti Misra, reported in (1975) 2 SCC 840 and SEBI v. Ajay Agarwal, reported in (2010) 3 SCC 765 : (2010) 2 SCC (Cri) 491, where the Apex Court made in clear and unambiguous terms that, namely, that procedural amendments are presumed to be retrospective in nature, unless the amending statute expressly or impliedly provides otherwise. And also, that generally change of “forum” of trial is procedural, and normally following the above proposition, it is presumed to be retrospective in nature unless the amending statute provides otherwise. This determination emerges from the decision of this Court in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri) 1087; Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392 : 1995 SCC (Cri) 728 and Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460 : (2014) 6 S