The court affirmed that juvenility must be claimed at trial; failure to do so precludes later claims, especially for heinous offences.

JUDGMENT :

Gautam Kumar Choudhary, J.

I.A. No.7803 of 2023

1. I.A. No.7803 of 2023 in Cr. Appeal (D.B.) No.93 of 2022 has been filed on behalf of appellant-Sobhnath Bhogta @ Somnath Pradhan for being released on bail in view of the age determination of the appellant by Juvenile Justice Board recording a finding that the appellant was aged 17 years 10 months 23 days on the date of occurrence on 08.02.2017.

2. It is submitted by the learned counsel on behalf of the appellant that earlier vide order dated 02.01.2023, the co-ordinate Bench of this Court had referred the matter for age determination to the J.J. Board. In pursuant to the direction, age of the appellant has been assessed and he has been found to be child at the date of occurrence. In this view of matter, the judgment of conviction and sentence was vitiated and is liable to be set aside, because the appellant has been tried and convicted as an adult without following the provisions of J.J. Act, 2015.

3. Learned A.P.P. has opposed the bail petition. It is submitted that the appellant has been convicted for committing gang rape under Sections 376D, 341 and 342/34 of the IPC. The offence will come within the definition of “heinous offences” as defined under Section 2(33) of the J.J. Act, 2015. In view of the fact that the appellant was above 16 years and almost approaching 18 years, he was liable to be tried as an adult by the Children’s Court as per the provisions of the Cr.P.C. in terms of Sections 19 and 21 of J.J. Act, 2015. It is also argued that this is not a case of a child below 16 years, where at any stage when the age is determined to be below 16 years, matter is to be referred to J.J. Board for enquiry. Once the child is found to be above 16 years, he has to be tried as an adult as the offence involved is a heinous offence.

4. Having considered the submissions advanced on behalf of both sides and the materials on record, the undisputed fact that emerges is that the appellant-Sobhnath Bhogta @ Somnath Pradhan has been found guilty and convicted for the offence under Section 376D of the IPC which is punishable for minimum sentence of 20 years’ imprisonment. It has been held by Hon’ble Supreme Court in the case of Shilpa Mittal Versus State (NCT of Delhi) & Another, (2020) 2 SCC 787 that offence is prescribed minimum sentence of seven years or more can be regarded as heinous offence.

5. In order to refer the matter for adjudication by the Children’s Court three conditions need to be satisfied under Section 15 of the J.J. Act. The conditions are: (i) Child is above 16 years, (ii) He should be accused of a heinous offence and (iii) Board should have conducted a preliminary assessment with regard to his mental and physical capacity that he had the ability to understand the consequence of committing the said offence. In the present case, the first two conditions have been satisfied, but since the plea was not taken at the stage of trial, therefore, no psychological assessment could be done by the Board. We find force in the argument advanced on behalf of the State that in case of a child who has crossed the age of 18 years, it will not be feasible for the Board to conduct psychological assessment of the child regarding his capacity to understand the consequence of his act at the time of commission of offence.

6. There exists a 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 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. They are in case found to know the nature and consequence of their act, to be tried as an adult under the provisions of Cr.P.C. If the plea of juvenility is not taken at the stage of investigation, enquiry or trial and is taken for the first time at the appellate stage, their mental capacity cannot be