IMPORTANT POINT
The court established that jurisdiction for offences under the JJ Act is determined by the amended Section 86(4), which applies retrospectively.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the 2nd accused in C.C. No.1303/2017 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam, to quash Annexure.A2 order passed by the learned Additional Chief Judicial Magistrate in C.P. No.38/2023 dated 02.12.2023 and all further proceedings pursuant thereto pending as S.C. No.78/2024 on the files of the Special Court for the trial of cases under the Protection of Children from Sexual Offences Act, Ernakulam.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the legal provisions and judgments on the point.

3. In this matter, the prosecution alleges commission of offences punishable under Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 [hereinafter referred as 'JJ Act' for short]. Earlier, the 1st accused was discharged and accused Nos. 2 and 3 are facing indictment. As per Annexure.A2 order dated 02.12.2023, the learned Additional Chief Judicial Magistrate ordered committal of the case before the Children’s Court, Ernakulam, finding that the said Court alone has jurisdiction to try the offence.

4. According to the learned counsel for the petitioner, since the offences alleged are punishable under Sections 23 and 26 of the JJ Act, 2000, the offences shall be tried by the Chief Judicial Magistrate. Therefore, the order of committal is wrong and the impugned order and further proceedings thereof are liable to be quashed.

5. The learned Public Prosecutor pointed out that, as per Section 86(4) of the JJ Act, 2015, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or the Commission for Protection of Child Rights Act, 2005 or the Protection of Children from Sexual Offences Act, 2012, offences under the JJ Act, 2015 shall be tried by the Children's Court. Therefore, the order of committal is within the ambit of Section 86 of the JJ Act.

6. In the decision reported in Anilkumar M.R. v. State of Kerala [2024 KHC OnLine 474 : 2024 KHC 474 : 2024 KER 40226], when this Court considered offences under the JJ Act, 2015, alleged to be committed on 04.12.2018, referring to Section 86(4) of JJ Act, this Court held that, operation of the procedural law, which would decide the forum in legal proceedings, unless expressly or impliedly provides otherwise, is retrospective in operation. It was held by this court further that, the offences dealt therein to be tried by the Children's Court, in view of Section 86(4) of the JJ Act, 2015.

7. While canvasing the point urged by the learned counsel for the petitioner, she has placed decision of this Court reported in Thresiamma Varkey v. State of Kerala [2017 (3) KLT 216], wherein also this Court addressed the question of jurisdiction. In paragraph Nos.11 and 18 of the decision this Court held as under:

11. Section 86 of the New Act makes it clear that if the offence under the New Act is punishable with imprisonment for a term exceeding seven years, then that offence is triable by a Children's Court. If the offence under the New Act is punishable with imprisonment for a term of three years and above, but not more than seven years, then the said offence shall be triable by a Magistrate of First Class. If the offence under the New Act is punishable with imprisonment for less than three years or with fine only, then the said offence shall be triable by any Magistrate.

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18. The upshot of the above discussion is that the forum for the trial of offences against children shall be decided as provided under Section 86 of the New Act, irrespective of whether the offence was committed prior to the enactment of the New Act or not. Therefore, the Children's Court can try the offences against children or violation of child rights if and only if at least one of the offences alleged is punishable with imprisonment for a term exceeding seven years irrespective of