IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 10^TH DAY OF SEPTEMBER 2024 / 19TH BHADRA, 1946 CRL.MC NO. 5840 OF 2024 CRIME NO.761/2013 OF ERNAKULAM NORTH POLICE STATION, ERNAKULAM IN C.C. NO.1303 OF 2017 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM PETITIONER/ACCUSED:

VAHEEDA AGED 57 YEARS W/O NAJEEBH, THAMANNA,HOUSE, SRM ROAD, ERNAKULAM, PIN - 682304 BY ADV M.VANAJA RESPONDENTS/STATE & DEFACTO COMPLAINANT:

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE SUB INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, PIN - 682031 SR PP - RENJIT GEORGE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

“C.R”

ORDER

Dated this the 10^th day of September, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the 2^nd accused in C.C. No.1303/2017 on 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 1^st 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 wit