Whether Offender Or Not, Child Must Be Treated As Child: Karnataka HC Lays Down Guidelines For Ascertaining Juvenility Of Accused Before Trial

The Karnataka High Court recently issued guidelines to be followed by trial courts and special courts prescribing certain preliminary enquiry be made with the accused when produced for the first time in a criminal case in order to ascertain if the accused is a juvenile. A single judge bench of Justice C M Joshi said, “There is no doubt that a Magistrate or Special Court has to make certain preliminary enquiry with the accused when produced for the first time in a criminal case during the crime stage. These enquiries are not mere formalities but they have a vital importance in ascertaining an accused to be a juvenile, mentally fit and the requirements of law are fulfilled. A child, whether an offender or not, is a child and has to be treated as a child.”Then it went on to issue the following guidelines: a) The Learned Magistrate/presiding officer of the Special Court must satisfy that the accused is not a minor. b) Whenever accused of the age of 18 to 22 years are produced, the IO or the accused may be directed to produce the documentary proof of his age. c) At the time of first production of accused, an oral enquiry about the age, apart from ill treatment by Police, intimation to the family members of the accused, reason for arrest, place of arrest, and ailments if any be made and recorded in the order of remand. d) An early ascertainment of the juvenility of the accused would be of great importance in reforming the child.The directions were issued while allowing an appeal acquitting the accused of the offence punishable under Sections 450, 376(3) of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The prosecution alleged that the accused knowing that the victim was a minor, followed her and developed a love affair with her, subsequently developing a physical relationship with her on 2-3 occasions under the false promise of marriage. It was submitted that on 22.08.2019, when the parents of the victim had gone to a marriage and the younger brother and grandfather of the victim were in the house, the accused had trespassed into the house of the victim girl and had sexual intercourse with her.It was alleged that on 23.08.2019, witnesses saw the accused coming out of the house of the victim and informed the victim's parents, who on their arrival came to know about the offence committed by the accused on the victim, and thereafter lodged the complaint. The special court on appreciating the evidence produced by the prosecution convicted the accused to suffer 20 years imprisonment along with a fine of Rs 25,000 and recommended payment of the compensation of Rs.1,00,000, to the victim. The appellant contended that at the time of the offence, the accused was a minor and the special court had no jurisdiction to take up the trial against the accused. Further, it was argued that the trial Court failed to appreciate the evidence from the proper perspective and erred in relying on the DNA report, in the absence of any substantive evidence, especially from the victim girl and her parents.Moreover, it was claimed that adequate opportunity was not granted to the defence counsel to cross-examine the prosecution witnesses and the trial Court committed a grave error in accepting the DNA report as a gospel truth. During the pendency of the appeal, the Principal District and Sessions Judge Bidar, was directed to send a report by deciding the juvenility of the accused/appellant after affording opportunity to the prosecution as well as the defence. Accordingly, it was reported that as of the date of the offence i.e., 22.08.2019, the accused was aged 16 years 2 months 2 days.Following this, the Court granted the accused bail by invoking Section 389 of Cr.P.C.The bench on going through the records noted that the defence of juvenility of the accused was never raised before the trial Court during the trial, except by the mother of the accused.The court noted “Therefore, an attempt was made to establish the juvenility of the accused but it was not pursued either by the Investigating Officer or by the accused. It was necessary that the Court should have enquired into the said matter to ascertain the age of the accused.” Further referring to the report submitted by the Principal District and Sessions Judge, Bidar the court said that there could not be any doubt that the accused was a juvenile as of the date of the commission of the offence.Noting that the statement of the victim shows that it was the victim, who had called the accused to her house and they had consensual sex, the Court opined “it is settled principle of law that the statement made under Sections 161 or 164 of Cr.P.C. cannot be treated as substantial evidence. The statement made by witnesses before the trial Court is of pivotal importance as it is subjected to cross-examination as well as recorded in the presence of the accused.”While addressing the medical evidence in the present case, which pointed to the existence of sexual intercourse...

Whether Offender Or Not, Child Must Be Treated As Child: Karnataka HC Lays Down Guidelines For Ascertaining Juvenility Of Accused Before Trial

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