IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.861 of 2018
1. Jeemee Kumar Singh @ Ankit Kumar Singh S/o Krishna Singh, R/o
Bangara, P.S.- Mahrajganj, District- Siwan under the guardianship of father,
Krishna Singh, son of Late Bichari Singh.
…. …. Petitioner
Versus
The State of Bihar
…. …. Respondent
Appearance :
For the Petitioner/s : Mr. Arvind Kumar Mouar
For the Respondent/s : Mr. Ram Anurag Singh
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL ORDER
3 10-10-2018 This revision application has been filed against the
judgment dated 25.5.2018 passed by 1st Additional District and
Sessions Judge, Siwan in Cr.Appeal No. 33 of 2018 as well as the
order dated 9.5.2018 passed by Juvenile Justice Board, Siwan in
Juvenile Trial No. 73 of 2018, arising out of G.R.No. 88 of 2018,
Siwan Mahila P.S.Case No. 1 of 2018, whereby and whereunder
prayer for bail of the petitioner has been rejected.
Allegation against the petitioner is of committing rape
upon the prosecutrix and on that basis Siwan Mahila P.S.Case No.
01 of 2018 was registered under Sections 376(D) and 342 of the
Indian Penal Code and the offence is heinous in nature.
The petitioner was declared juvenile by the Juvenile
Justice Board (hereinafter to be referred as ‘the JJB’) and found
him aged 17 years 10 months 27 days at the time of occurrence on
an enquiry under Section 14 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (hereinafter to be referred as
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‘the Act’) and offence under Section 376 IPC comes under
definition of ‘Heinous Offence’. ‘Heinous Offence’ has been
defined under Section 2(33) of the Act, which provides as follows:
“2(33) “heinous offence” includes the
offences for which the minimum
punishment under the Indian Penal Code
(45 of 1860) or any other law for the time
being in force is imprisonment for seven
years or more.”
Section 14(5)(f) of the Act provides as follows :
“inquiry of heinous offence,-
(i) for child below the age of sixteen years
as on the date of commission of an offence
shall be disposed of by the Board under
clause (e);
(ii) for child above the age of sixteen years
as on the date of commission of an offence
shall be dealt with in the manner
prescribed under Section 15.”
Section 14 of the Act relates to inquiry by Board regarding
child in conflict with law.
Further Section 15 of the Act provides as follows :
“S.15. Preliminary assessment into
heinous offences by Board- (1) In case of a
heinous offence alleged to have been
committed by a child, who has completed
or is above the age of sixteen years, the
Board shall conduct a preliminary
assessment with regard to his mental and
physical capacity to commit such offence,
ability to understand the consequences of
the offence and the circumstances in which
he allegedly committed the offence, and
may pass an order in accordance with the
provisions of sub section (3) of Section 18 :
Provided that for such an assessment, the
Board may take the assistance of
experienced psychologists of psycho-social
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workers or other experts.”
Further Section 18(3) of the Act provides as follows :
“Where the Board after preliminary
assessment under Section 15 pass an order
that there is a need for trial of the said
child as an adult, then the Board may
order transfer of the trial to the case to the
Children’s Court having jurisdiction to try
such offences.”
On a plain reading of the aforesaid provisions of the Act
it appears that a child in conflict with law aged more than 16 years
is an accused in heinous offence as in the present case the JJB has
to conduct a preliminary assessment in terms of Section 15 of the
Act regarding ‘Preliminary assessment into heinous offences’ and
then pass an order under Section 18(3) of the Act that there is a
need for trial of the said child as an adult but in the present case
neither an order under Section 15 of the Act has been passed with
regard to preliminary assessment of the juvenile petitioner with
regard to his mental and physical capacity to commit such offence,
ability to understand and consequences of the offence and the
circumstances in which he allegedly committed the offence nor an
order under Section 18(3) of the Act has been passed, though the
juvenile petitioner is aged more than 16 years and is an accused
for the heinous offence, before passing an order on bail petition.
In such view of the matter, the impugned judgment dated
25.5.2018 passed by 1st Additional District and Sessions Judge,
Siwan in Cr.Appeal No. 33 of 2018 as well as the impugned order
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dated 9.5.2018 passed by the JJB, Siwan in Juvenile Trial No. 73
of 2018 cannot sustain. Hence they are set aside.
The matter is remitted back to the JJB, prior to consider
bail of the petitioner, for passing an order under Section 15 of the
Act as it is a mandatory provision and also for passing an order
under Section 18(3) of the Act within a period of 60 days from the
receipt of copy of this order.
Needless to say that if the petitioner is aggrieved by the
order of the JJB he may move before an appropriate court as
provided under the provisions of the Act.
With the above observation, this revision application is
disposed of.
(Vinod Kumar Sinha, J)
spal/-
U T