Thresiamma Varkey v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 9TH DAY OF JUNE 2017/19TH JYAISHTA, 1939** **Crl.MC.No. 6156 of 2016 () ---------------------------** **SC 50/2012 of ADDL.DISTRICT & SESSIONS COURT-1, KOTTAYAM CRIME NO. 464/2011 OF PALA POLICE STATION, KOTTAYAM ------------------** **PETITIONER(S)/PETITIONER:** **------------------------** **THRESIAMMA VARKEY D/O.VARKEY, AGED 52 YEARS, ATTUPURAM JOSE HOUSE, MURIKKUMPUZHA, PALA, MEENACHIL VILLAGE, NOW RESIDING AT THYKOODAM, VYTTILA, ERNAKULAM DISTRICT, PIN-682019.** **BY ADVS.SRI.P.V.ANILKUMAR SMT.S.ANITHA (UDUMBUMKUZHYIL)** **RESPONDENT(S)/RESPONDENTS: -------------------------STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN-682031.** **BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 6156 of 2016 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------ANNEXURE 1 CERTIFIED COPY OF FIR DTD 5/6/2011 IN CRIME NO 464/2011 OF PALA POLICE STATION ANNEXURE 2 CERTIFIED COPY OF FINAL REPORT DTD 28/6/2011 IN CRIME NO 464/2011 OF PALA POLICE STATION ANNEXURE 3 PHOTO COPIES OF TREATMENT DETAILS OF PETITIONER FROM AMRITHA HOSPITAL AND VELLOOR MEDICAL COLLEGE, DTD 14/12/15 & 12/9/2015.** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **STK** opy// ## **“C.R.”** ## **B. SUDHEENDRA KUMAR, J. -------------------------------Crl. M.C. No.6156 of 2016** **----------------------------------** Dated this the 9[th] day of June, 2017 ## **O R D E R** The petitioner is the accused in S.C. No.50 of 2012 on the files of the Additional Sessions Court Kottayam. The petitioner has filed this Crl.M.C. praying for quashing the final report and further proceedings in the above case. 2. The prosecution allegation is that on 5.6.2011, a minor girl aged 13 years was found employed in the house of the petitioner as a made servant for a very meager wage of Rs.100/- per month. 3. On the basis of the said allegation, Crime No.464/2011 was registered in Pala Police Station for the offence under Section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Old Act'). After completing the investigation, the final report was filed before the court by the Police for the above said offence. **-: 2 :-** ## **Crl. M.C. No.6156 of 2016** The learned Magistrate committed the case to the Sessions Court and presently, the case is pending as S.C.No.50/2012 before the court below. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner has argued that in view of Section 86 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the New Act'), the offence alleged against the petitioner is triable by a Judicial Magistrate of First Class and in the said circumstances, the proceedings before the Additional Sessions Court cannot be sustained. 6. The offence in this case was allegedly committed on 05.06.2011. The New Act came into force with effect from 15.01.2016., which was only subsequent to the commission of the offence in this case. 7. The New Act is intended to ensure proper care, protection, development, treatment and social re- ## **Crl. M.C. No.6156 of 2016** ## **-: 3 :-** integration of children in different circumstances by adopting a child-friendly approach keeping in view the best interest of the child in mind. 8. Section 25 of the Commissions for Protection of Child Rights Act, 2005 (for short 'the Child Rights Act') provides for the constitution of Children's Courts for the purpose of speedy trial of offences against children or violation of child rights. Accordingly, Children's Courts were constituted by notification. After the constitution of the Children's Courts, the offences against the children could be tried only by the Children's Court. Therefore, all offences against the children under the Old Act used to be tried by the Children's Courts. 9. Under the New Act, three categories of offences are defined, which are “heinous offences”, “serious offences” and “petty offences”. As per Section 2(33) of the New Act, “heinous offences” include the offences for which the minimum punishment under the Indian Penal Code (45 ## **Crl. M.C. No.6156 of 2016** ## **-: 4 :-** of 1860) or any other law for the time being in force, is imprisonment for seven years or more. As per Section 2(54) of the New Act, “serious offences” include the offences for which the punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force, is imprisonment between three and seven years. As per Section 2(45) of the New Act, “petty offences” include the offences for which the maximum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment upto three years. 10. Section 86 of the New Act provides classification of the offences and designated court, which is extracted hereunder:- “86. Classification of offences and designated court.(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 ## **Crl. M.C. No.6156 of 2016** ## **-: 5 :-** 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, is punishable with imprisonment for less than three years or with fine only, then, such offence shall be noncognizable, bailable and triable by any Magistrate.” 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 with imprisonment for a term of three years and above, but not more than seven years, then the said offence shall be triable by a Magistrate of First Class. If the offence under the New Act is punishable with imprisonment for less than three years or with fine only, then the said offence shall be triable by any Magistrate. 12. The above discussion would make it clear that “petty offences” and “serious offences” are not to be tried before the Children's Court because the said offences are **-: 6 :-** ## **Crl. M.C. No.6156 of 2016** not punishable with imprisonment for more than seven years. This would show that if the offence alleged under the New Act is punishable with imprisonment for more than seven years, then only that offence has to be tried before the Children's Court. The Children's Courts were constituted as per the notification as provided under Section 25 of the Child Rights Act for the purpose of speedy trial of offences against children or for violation of child rights. No forum was fixed for the trial in the Old Act. However, in view of Section 25 of the Child Rights Act, the offences under the Old Act used to be tried by the Children's Court. 13. It is very much clear on a simple and plain reading of the definition that “petty offences”, “serious offences” and “heinous offences” under the New Act would include offences under the Indian Penal Code or any other law for the time being in force. Therefore, it is manifest that even if the offence alleged against the children is an offence under the Indian Penal Code or under any other law, the said ## **Crl. M.C. No.6156 of 2016** ## **-: 7 :-** offence would fall within any one of the three categories of offences under the New Act, namely, “petty offences” or “serious offences” or “heinous offences”, depending upon the sentence provided for the said offence. Therefore, the trial of offences against children has to be conducted as provided under Section 86 of the New Act, irrespective of whether the offence is under the Indian Penal Code or under any other law for the time being in force. 14. Now the question to be considered is as to whether the offences committed under the Old Act are to be tried before the Children's Court as is being followed or before the Magistrate court as provided under Section 86 of the New Act. 15. In New Indian Insurance Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840], the Honourable Apex Court was dealing with a case of payment of compensation under the Motor Vehicles Act. The victim of the accident passed away before the constitution of the Claims Tribunal under the **-: 8 :-** ## **Crl. M.C. No.6156 of 2016** Motor Vehicles Act 1939 as amended. The legal heirs of the deceased filed a claim petition for payment of compensation before the Tribunal after the Tribunal was established. The question that arose for consideration was whether the claim petition was maintainable having regard to the fact that the cause of action had arisen prior to the change of the forum for trial of a claim for payment of compensation. The Apex Court held that the change of law was merely a change of forum i.e., a change adjectival or procedural law and not of a substantial law and such a change of law would operate retrospectively even if the cause of action or right of action had accrued prior to the change of forum. Therefore, the Apex Court held that the claimant had rightly approached the forum as per the amended law. It was further held in Shanti Misra (supra) that the claimant had a 'vested right of action' but not a 'vested right of forum'. The Apex Court further held in Shanti Misra (supra) that unless by express words the new forum is available only to causes of action ## **Crl. M.C. No.6156 of 2016** ## **-: 9 :-** arising after the creation of the forum, the general rule is to make it retrospective. 16. The Apex Court in Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602] referring to clause (bb) of Section 20(4) of the Terrorist and Disruptive Activities (Prevention) Act 1987, introduced by an Amendment Act governing to Section 167(2) Cr.P.C. in relation to TADA, held thus:- “i. A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. ii. Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. iii. Every litigant has a vested right in substantive **Crl. M.C. No.6156 of 2016** ## **-: 10 :-** law but no such right exists in procedural law. iv. A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. v. A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.” It is clear from the ratio in Hitendra (supra) that the law relating to Forum is procedure in nature and the litigant has no vested right in procedural law. 17. The above proposition of law makes it clear that no party has vested right to a particular proceeding or to a particular Forum and it is well settled that the procedural laws are retrospective unless the legislature expressly states to the contrary. 18. The upshot of the above discussion is that the ## **Crl. M.C. No.6156 of 2016** ## **-: 11 :-** forum for the trial of offences against children shall be decided as provided under Section 86 of the New Act, irrespective of whether the offence was committed prior to the enactment of the New Act or not. Therefore, the Children's Court can try the offences against children or violation of child rights if and only if at least one of the offences alleged is punishable with imprisonment for a term exceeding seven years irrespective of whether the offences alleged are offences under the Indian Penal Code or under any other law for the time being in force. Therefore, in respect of cases which are presently pending before the Children's Court, unless atleast one of the offences for which the accused is being tried is punishable with imprisonment of more than seven years, the Children's Court cannot continue with the trial. However, in cases pending before the Children's Court, where the proceedings are concluded under the Old Law, the same cannot be re-opened for the purpose of applying the new procedure. **Crl. M.C. No.6156 of 2016** ## **-: 12 :-** 19. In Nani Gopal Mitra v. State of Bihar (AIR 1970 SC 1636) the Hon'ble Apex Court declared that amendments relating to procedure operated retrospectively subject to the exception that whatever be the procedure which was correctly adopted and proceedings concluded under the old law, the same cannot be reopened for the purpose of applying the new procedure. 20. It is therefore clear that as a general rule, the amended law relating to procedure operates retrospectively. Under the Old Act, no offence is punishable with imprisonment exceeding seven years. Therefore, as per Section 86 of the New Act, the said offences are not triable by the children's court, but are triable by the Magistrate court concerned. 21. In view of the above discussion, the following directions are issued for compliance by the Subordinate Courts:a)All cases pending before the Children's Court, where the ## **Crl. M.C. No.6156 of 2016** ## **-: 13 :-** proceedings are not concluded shall be transferred to the Magistrate Court concerned as provided under Section 228 (1)(a) Cr.P.C. for trial and disposal in accordance with law, unless atleast one of the offences for which the accused is being tried is punishable with imprisonment of more than seven years. - b)In cases where the proceedings are concluded under the Old Act, the same cannot be re-opened for the purpose of complying with the new procedure. - c)No case against the children or violation of child rights, shall be committed to the Sessions Court for being tried before the Children's Court unless atleast one of the offences for which the accused is being tried is punishable with imprisonment of more than seven years. - d) If none of the offences for which the accused is being tried is punishable with imprisonment of more than seven years, then, even if the case has been already numbered as C.P., the trial can be conducted by the Magistrate Court **Crl. M.C. No.6156 of 2016** **-: 14 :-** concerned by changing the nomenclature as C.C. or S.T. as the case may be, as the change in nomenclature does not affect the substantive right of the parties. 22. The learned counsel for the petitioner has also advanced various grounds for quashing the proceedings against the petitioner. The offence alleged in this case is punishable with imprisonment for a term which may extend to three years and with fine. Therefore, the above case is a warrant trial case and hence the petitioner is having right and opportunity to raise all his contentions before the trial court and plead for discharge under Section 239 Cr.P.C. For the said reason, I am not inclined to entertain the prayer of the petitioner to quash the final report and further proceedings against the petitioner in the above case. The above view is supported by the decision of the Apex Court in Umesh v. State of Kerala [2017 (3) SCC 112]. 23. The above discussion would make it clear that the Children's Court where the present case is pending is not ## **Crl. M.C. No.6156 of 2016** ## **-: 15 :-** having jurisdiction to try the offence against the petitioner. Therefore, the Children's Court concerned is directed to transfer S.C.No.50/2012 to the court of the Judicial Magistrate of First Class, Pala or to the Chief Judicial Magistrate Court, Kottayam for trial and disposal in accordance with law as provided under Section 228(1)(a) Cr.P.C., as the proceedings before the Children's Court concerned are not yet concluded. In the result, this Cr.M.C. stands disposed of as above. Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//