Mandatory inquiries under the Juvenile Justice Act must be conducted to assess a child's capacity to commit an offence; failure to do so renders the trial invalid.

JUDGMENT :

(Rakesh Kainthla, J.)

The present appeal is directed against the judgment dated 25.5.2019, passed by learned Sessions Judge, Special Court (POCSO Act), Kinnaur, H.P., vide which the appellant (child in conflict with law ‘CCL’ before learned Trial Court) was convicted of the commission of offences punishable under Sections 376 and 342 of the Indian Penal Code ( IPC ) and Section 4 of Protection of Children from Sexual Offences Act (POCSO Act) and was sentenced as under:-

(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the CCL for the commission of offences punishable under Sections 376 , 342 and 506 of IPC and Section 4 of the POCSO Act. It was asserted that the victim and her younger brother had gone to fetch water on 2.11.2016 at some distance from the village. The CCL came to the spot in a state of intoxication. He dragged the victim into a cowshed near the tap and raped her. He bolted the cowshed and went away from the spot. The victim’s sister searched for her. She found someone crying inside the cowshed. She opened the door. The victim reached her home and narrated the incident to her father. The police registered the FIR (Ex.PW13/F) and conducted the investigation. The police filed a charge sheet against the CCL after the completion of the investigation before the Juvenile Justice Board.

3. The Juvenile Justice Board found that CCL was more than 16 years of age but less than 18 years of age, and he had committed a heinous offence within the meaning of Section 2(33) of the Juvenile Justice (Care and Protection) Act, 2015 (JJ Act). Hence, the preliminary assessment was to be conducted. Learned Principal Magistrate, vide order dated 28.2.2017, held that MLC of CCL shows that he had the physical capacity to commit the offence. He had passed 10+1 class. Thus, he was physically and mentally fit to commit the offence. There was nothing to show that he was unable to understand the consequence of his act. The CCL made a statement before the Board showing that he was physically and mentally fit to commit the offence. His counsel did not object to the case being committed to the learned Special Judge under Section 18(3) of the Juvenile Justice Act. Hence, the case was committed to the learned Special Judge.

4. Learned Special Judge framed the charges against the CCL for the commission of offences punishable under Sections 376 , 342 and 506 of IPC and Section 4 of the POCSO Act. The prosecution evidence was led. The learned Special Judge convicted and sentenced the CCL for the commission of the offences as aforesaid after the conclusion of the trial.

5. Being aggrieved from the judgment passed by the learned Trial Court, the CCL has approached this Court by filing the present appeal.

6. I have heard Ms Anu Tuli, learned counsel for the CCL and Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State.

7. Ms Anu Tuli, learned counsel for the CCL, submitted that the Juvenile Justice Board and the learned Special Judge failed to conduct proper proceedings. The case of the CCL could not have been sent to the learned Special Judge merely on the admission of the counsel without conducting the preliminary inquiry. Learned Special Judge was also bound to conduct the inquiry. The proceedings against the CCL are vitiated. CCL has undergone imprisonment awarded to him. The CCL is entitled to an acquittal because of the absence of the inq