Don Biju Mathew v. Sub Inspector of Police, Kuravilangad Police Station, Kuravilangad, Kottayam District & State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944 CRL.MC NO. 615 OF 2021** **AGAINST ST 16/2019 OF PRINCIPAL MAGISTRATE AND JUVENILE JUSTICE BOARD, KOTTAYAM** ## **PETITIONER/CHILD IN CONFLICT WITH LAW:** DON BIJU MATHEW, AGED 20 YEARS S/O BIJU MATHEW, OPPAMTHADATHIL HOUSE, MARANGATTUPALLI P.O.686 635, MEENACHIL TALUK, ELAKKAD VILLAGE, KOTTAYAM DISTRICT BY ADVS. JOHNSON MANAYANI SRI.JEEVAN MATHEW MANAYANI ## **RESPONDENTS:** 1 SUB INSPECTOR OF POLICE KURAVILANGAD POLICE STATION, KURAVILANGAD P.O.KOTTAYAM DISTRICT-686 633. 2 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT COMPLEX, ERNAKULAM-682 031. BY ADV PUBLIC PLEADER SRI SANGEETHA RAJ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.615/2021 ## -:2:- O R D E R Dated this the 2[nd ] day of August, 2022 This Crl.M.C has been preferred under Section 482 of the Cr.P.C. to quash Annexure A9 final report in ST No. 16/2019 on the files of the Principal Magistrate & Juvenile Justice Board, Kottayam. 2. The petitioner is the child in conflict with law in ST No.16/2019 at Juvenile Justice Board, Kottayam (for short, ‘the JJ Board’). Originally the crime was registered by Kuruvilangadu Police Station for the offences punishable under Sections 342, 354, 354A, 354B r/w 34 of IPC and Sections 7 and 8 of POCSO Act against two accused persons. The first accused has been named as one Ashin and the second accused has been described as a person who can be identified by sight. Later, the petitioner’s name has been arrayed as accused No.2 and his age was shown as 16 years. 3. The prosecution case in short is that, on 23/12/2017, petitioner along with the first accused outraged the modesty of the minor girl aged 14 years. After conducting investigation, Crl.M.C.No.615/2021 -:3:- initially the police filed final report on 31/10/2018 against the petitioner and the first accused together without taking into account the age of the petitioner. The petitioner approached this court with Crl.M.C. No. 63/2019 to quash the said final report on the ground that he was a juvenile at the time of occurrence of the crime and the procedures as mandated by the Juvenile Justice (Care and Protection of Children) Act, (for short’ JJ(CPC) Act) were not complied with. During the pendency of the said Crl.M.C, the investigating officer was convinced that the petitioner had not completed the age of 18 years as on the date of the incident and had thereupon withdrawn that final report to the extent it is directed against the petitioner and had refiled the final report before the JJ Board and the same was numbered as ST No. 16/2019. Crl.M.C No.63/2019 was disposed of by this court vide Annexure A8 order with the liberty to the petitioner to challenge the final report (Annexure A9) in ST No.16/2019 on the file of the JJ Board. Hence, this Crl.M.C is filed. 4. I have heard Sri. Johnson Manayani, the learned counsel for the petitioner and Sri. Sangeetha Raj, the learned Public Prosecutor. 5. The learned counsel for the petitioner raised twofold Crl.M.C.No.615/2021 -:4:- contentions. I) The entire proceedings which led to the filing of Annexure A9 are in violation of the mandatory procedure contemplated under the JJ Act and the Rules and hence bad in law. II) Even if the entire allegations in Annexure A9 are believed to be true, no offences are made out against the petitioner. 6. Chapter III of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 deals with the procedures to be followed in the case of juvenile in conflict with law. It categorizes the crimes committed by the juvenile into three categories i.e., petty offence, serious offence and heinous offence. Section 2(54) of the JJ(CPC) Act, 2015 defines ‘serious offence’ as the offence for which the maximum punishment under IPC or any other law for the time being in force is imprisonment between three to seven years. Here, the offence alleged against the petitioner falls under the category of ‘serious offence’. 7. As per Rule 8 of the Juvenile Justice (Care and Protection of Children) Model Rules 2016, no First Information Report shall be registered in respect of any serious or petty offence committed by the juveniles. In such category of offences, the Special Juvenile Police Unit or the Child Welfare Police Officer shall record the information regarding the offence alleged to have Crl.M.C.No.615/2021 -:5:- been committed by the child in the general daily diary followed by a social background report of the child in Form 1 and circumstances under which the child was apprehended, wherever applicable, and forward it to the Board before the first hearing. Moreover, there is no power to apprehend the child who is involved in serious or petty offence unless it is for the best interest of the child. Therefore, in the case of serious offences where apprehending the child is not necessary, in the best interest of the child, the police or Special Juvenile Police Unit or Child Welfare Police Officer shall intimate the parents or guardian of the child as to when the child is to be produced for hearing before the Board. As per Rule 9 (4), where the information in this regard is forwarded by the police or Special Juvenile Police Unit or Child Welfare Police Officer to the Board, the Board shall require the child to appear before it at the earliest so that measures for rehabilitation, where necessary, can be initiated, though the final report may be filed subsequently. Rule 10 deals with Postproduction processes by the Board. On production of the child before the Board, the report containing the social background of the child, circumstances of apprehending the child and offence alleged to have been committed by the child as provided by the Crl.M.C.No.615/2021 ## -:6:- officers, individuals, agencies producing the child shall be reviewed by the Board and the Board may pass such orders (i) disposing of the case, if on the consideration of the documents and record submitted at the time of his first appearance, his being in conflict with law appears to be unfounded or where the child is alleged to be involved in petty offences, (ii) referring the child to the Committee where it appears to the Board that the child is in need of care and protection, (iii) releasing the child in the supervision or custody of fit persons or fit institutions or Probation Officers as the case may be, through an order in Form 3, with a direction to appear or present a child for an inquiry on the next date; and (iv) directing the child to be kept in the Child Care Institution, as appropriate, if necessary, pending inquiry as per order in Form 4. As per Rule 10(6), in cases of petty or serious offences, the final report shall be filed before the Board at the earliest and in any case not beyond the period of two months from the date of information to the police, except in those cases where it was not reasonably known that the person involved in the offence was a child, in which case extension of time may be granted by the Board for filing the final report. When witnesses are produced for examination in an inquiry relating to a child Crl.M.C.No.615/2021 ## -:7:- alleged to be in conflict with law, the Board shall ensure that the inquiry is not conducted in the spirit of strict adversarial proceedings and it shall use the powers conferred by Section 165 of the Indian Evidence Act, 1872 (1 of 1872) so as to interrogate the child and proceed with the presumptions in favour of the child. 8. In _**Dr. Subramanian Swamy and others v. Raju through member Juvenile Justice Board and another**_ [AIR 2014 SC 1649], the apex court pointed out that FIR and charge sheet in respect of juvenile offenders is filed only in serious cases where adult punishment exceeds 7 years. The court also noted that, the JJ board conducts a child – friendly ‘inquiry’ and not adversarial trial. This is not to say that the nature of inquiry is non adversarial, since both prosecution and defence submit their cases, instead, the nature of the proceedings acquires a child – friendly colour. 9. The documents and case records produced reveal that initially FIR was registered, the investigation was conducted and final report was filed by the local police at the regular Magistrate court with respect to an offence that comes under the category of ‘serious offence’ committed by the petitioner who was a juvenile Crl.M.C.No.615/2021 -:8:- then, and after knowing that the petitioner was a juvenile at the time of the commission of the offence, the investigating officer just withdrew the final report from the Magistrate court and refiled the same at the JJ Board without complying the procedures as mandated by the JJ(CPC) Act or the Rules mentioned above. Therefore, I am of the view that the entire proceedings which led to the filing of the final report is against the JJ Act and the Rules. 10. The learned counsel for the petitioner next argued that, even if the entire allegations in the FIR together with the materials collected during the investigation are taken at their face value, they do not constitute any of the offences alleged against the petitioner. I have perused the entire records of the case. In the FIR, the petitioner was not named, though the name of the first accused was specifically mentioned. The second accused was described as a person who can be identified. In Annexure A9 final report, the status of the petitioner is shown as absconding. The investigating officer did not make any attempt to identify the petitioner by the victim. Moreover, no specific overt act has been alleged against the petitioner in the FIS or in the statements recorded under Section 161 of the Cr.P.C. The counsel for the petitioner also submitted that the first accused Crl.M.C.No.615/2021 -:9:- was already acquitted by the Fast Track Special Court, Kottayam. A copy of the judgment is made available to me. A perusal of the said judgment would show that the court after a full-fledged trial found that the prosecution failed to prove the case beyond reasonable doubt and accordingly the first accused was acquitted. For all these reasons, I am of the view that no useful purpose will be served in proceeding further with the case against the petitioner. Accordingly, the entire proceedings pursuant to Annexure A9 final report in ST No. 16/2019 on the files of the Principal Magistrate & Juvenile Justice Board, Kottayam hereby stands quashed. Crl.M.C. is allowed. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** **Rp** Crl.M.C.No.615/2021 ## -:10:- ## **APPENDIX OF CRL.MC 615/2021** PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE FIR OF THE 1ST RESPONDENTS POLICE STATION ANNEXURE A2 TRUE COPY OF THE FINAL REPORT WITH THE ANNEXED RECORDS IN SC NO 518/2018 ADDL DISTRICT & SESSION-1 (POSCO) KOTTYAM ANNEXURE A3 TRUE COPY OF THE PETITIONERS SSLC BOOK PAGTE NO 2 ANNEXURE A4 TRUE COPY OF THE BIRTH CERTIFICATE OF THE PETITIONER ISSUED BY THE ETTUMANOOR GRAMA PANCHAYATH DATED 23.5.2006 ANNEXURE A5 TRUE COPY OF THE CRL MC NO 63/2019 DATED 2.1.2019 WITHOUT THE EXHIBITS ATTACHED THEREIN ANNEXURE A6 TRUE COPY OF THE INTERIM ORDER DATED 7.1.2019 OF THE HON'BLE HIGH COURT IN CRL MA NO 1/2018 IN CLR MC NO 63/2019 ANNEXURE A7 TRUE COPY OF THE INTERIM ORDER DATED 29.1.2020 OF THE HON'BLE HIGH COURT IN CRL MC NO 63/2019 ANNEXURE A8 TRUE COPY OF THE ORDER OF THE HON'BLE HIGH COURT IN CRL MC NO 63/2019 DATED 11.9.2020 ANNEXURE A9 TRUE CERTIFIED COPY OF THE FINAL REPORT AND THE CONNECTED RECORDS IN ST NO 16/2019 OF THE PRINCIPAL MAGISTRATE & JUVENILE JUSTICE BOARD, KOTTAYAM