The introduction of Section 86(4) of the JJ Act mandates that offences under the Act must be tried by the Children's Court, rendering any prior proceedings by a Magistrate invalid.

O R D E R

Order dated 10.09.2024 in Crl.M.P.No.1099/2024 in S.C.No.480/2024 on the files of the Special Court for trial of cases relating to Atrocities and Sexual Violence against Women and Children ( Protection of Children from Sexual Offences Act `POCSO Act’ for short), is under challenge in this petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (` BNSS ’ for short).

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the impugned order.

3. In this matter prosecution alleges commission of offences punishable under Section 323 of the Indian Penal Code (` IPC ’ for short) as well as Section 75 of the Juvenile Justice (Care and Protection of Children) Act , 2015 (`JJ Act’ for short). Prosecution case is that the Crl.M.C.No.9125/2024 3 accused, who was the manager of ‘Kaliveedu Day Care’ physically assaulted the victim child, aged 1 ½ years, of the defacto complainant from 05.12.2016 to 23.05.2017 and thereby caused mental and physical suffering to the child. Initially, the case was numbered as C.C.No.1317/2017 and charge was framed and trial proceeded. Thereafter it was brought to the notice of the learned Magistrate that since offence under Section 75 of the JJ Act is involved, the case shall be tried by the Children's Court. Accordingly, the learned Magistrate, as per the impugned order, committed the case under Section 207 of Cr.P.C to the Children's Court.

4. While assailing the order it is pointed out by the learned counsel for the petitioner that in this matter since trial has already commenced and substantially progressed, whether the committal thereafter is legally sustainable, is the question to be decided. He also pointed out that, if so, what is the fate of the evidence recorded by the learned Magistrate?

5. According to the learned counsel for the petitioner, since the trial has commenced and substantially progressed, committal of the Crl.M.C.No.9125/2024 4 case to Children's Court is illegal and the same would require interference.

6. Whereas the learned Public Prosecutor strongly opposed the contentions on the submission that as per Section 86 of the JJ Act, 2015, Children's Court alone has the jurisdiction to try offences under the JJ Act and, therefore, the learned Magistrate rightly committed the case before the Children's Court, and therefore, the impugned order is only to be justified.

7. In the decision reported in [2024 KHC 474] , Anil Kumar M.R v. State of Kerala this Court held as under in paragraphs 5, 6, 7, 8, 12 and 13:

“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, S.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 S.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 S.86(4) of the JJ Act has application in the pending cases also and therefore, the learned Magistrate rightly passed Annexure A3 order Crl.M.C.No.9125/2024 5 and the order impugned does not require any interference.

7. Extracting the legal provisions prior to amendment with effect from 01/09/2022, S.86 of the JJ Act provided as under: "S.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,