Child in Conflict with the Law: SC directs the release of the accused stating “the very foundation of the prosecution case is illegal to the core”

In a recent judgment, Thirumoorthy vs. State represented by the Inspector of Police, the Supreme Court (SC) of India directed the release of an accused in the POCSO case who was a Child in Conflict with the Law. This order was given after quashing and setting aside the impugned judgment of the Madras High Court dismissing the criminal appeal filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 and affirming his conviction and sentence awarded by the Sessions Judge, Mahila Court, Salem. The SC bench consisting of Justice BR Gavai and Justice Sandeep Mehta held that the very foundation of the prosecution case was illegal to the core as the accused was never presented before the Juvenile Justice Board. It said, “There has been a flagrant violation of the mandatory requirements of Sections 15 and 19 of the JJ Act (Juvenile Justice(Care and Protection of Children) Act).” 

In this case, the victim Ms. D, the daughter of the first informant, Mr. G (PW-1), aged 6 years went missing. Mr. G complained and a search was made in the locality but the child could not be traced out. The accused confessed to his guilt and acting in furtherance thereof, the dead body of Ms. D was found concealed in a wide-mouthed Aluminium vessel lying in the prayer room of the house of the accused. Indisputably, the accused was a Child in Conflict with the Law (CICL) as provided under Section 2(13) of the Juvenile Justice(Care and Protection of Children) Act, 2015. The proceedings were required to be conducted following the mandatory procedure prescribed under the JJ Act. Despite this, a charge sheet against the accused was filed directly before the Sessions Court. The trial Court proceeded to convict and sentence the accused vide judgment and order. 

Further, the mother of the accused-appellant (Thirumoorthy) filed a petition before the Special Court, POCSO Act Cases, praying that the sentence of her son may be reduced and he may be considered for early release given his good behavior. The application was dismissed by the special court. Being aggrieved by the conviction and the sentences awarded by the trial Court, the accused-appellant preferred an appeal before the HC which came to be rejected vide impugned judgment. The matter was, therefore, mentioned before the Supreme Court bench. The SC said, “There is no escape from the conclusion that even before the result of the investigation was filed, the fact regarding the accused being a CICL was well known to the Investigating Officer(PW-25), the prosecution, and the trial Court as well.” It added that even assuming that Sessions Court had been designated as a Children’s Court, there was no option for the said Court but to forward the child to the concerned Board for further directions. 

Furthermore, the SC said that neither a charge sheet against Thirumoorthy was filed before the Board nor any preliminary assessment was conducted under Section 15 to find out whether he was required to be tried as an adult. The bench observed, “It seems that pursuant to the trial being concluded, the trial Court realized the gross illegality in the proceedings and thus, in an attempt to give a vestige of validity to the grossly illegal proceedings conducted earlier, an exercise was undertaken to deal with the accused-appellant as per the provisions of the JJ Act on the aspect of sentencing. However, ex facie, the said action which seems to be taken by way of providing an ex post facto imprimatur to the grossly illegal trial does not stand to scrutiny because the very foundation of the prosecution case is illegal to the core.” It added, “it was impermissible for the trial Court to have accepted the charge sheet and to have proceeded with the trial of the accused.”

Moreover, the SC also mentioned that the accused being a CICL was never subjected to a preliminary assessment by the Board to find out whether he should be tried as an adult.  Directing such an exercise at this stage would be sheer futility because now the appellant is nearly 23 years of age. Therefore, the bench opined, “At this stage, there remains no realistic possibility of finding out the mental and physical capacity of the (Thirumoorthy) to commit the offence or to assess his ability to understand the consequences of the offence and circumstances in which he committed the offence in the year 2016.” Further, the SC held that the entire proceedings taken against the appellant right from the stage of investigation and the completion of the trial stand vitiated as having been undertaken in gross violation of the mandatory requirements of the JJ Act. If further quashed and set aside the impugned judgment of the HC and directed the appellant, who is presently lodged in jail, should be released forthwith, if not required in any other case.