Madras High Court
Saveetha vs The Superintendent Of Prison on 8 April, 2026
Author: Anita Sumanth
Bench: Anita Sumanth
H.C.P.No.2743 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 01.04.2026
PRONOUNCED ON : 08.04.2026
CORAM :
THE HONOURABLE DR.JUSTICEANITA SUMANTH
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
H.C.P.No.2743 of 2025
Saveetha F/43
W/o. Muthu,
No.54, Kalaingar Colony,
Mayilduthurai Taluk & District. .. Petitioner
vs
1.The State of Tamil Nadu
Rep. by its Superintendent of Prison,
Central Prison, Cuddalore,
Cuddalore District.
2.The Inspector of Police,
Mayiladduthurai Police Station,
Mailaduthurai District. .. Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying to issue a writ of habeas corpus directing the 1 st respondents
herein to produce the person of petitioner’s son namely Santhosh, S/o.
Muthu, PID No. 727002 aged 19 years, at present confined in Central
Prison, Cuddalore before this Court and set him at liberty.
For Petitioner : Mr.P.Muthamizh Selvakumar
For Respondents : Mr.R.Muniyapparaj
Additional Public Prosecutor
assisted by
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Mr.M.Sylvester John
Mr.E.V.Chandru
Advocate – Amicus Curiae
ORDER
Dr. ANITA SUMANTH, J
Background
S.C.No.23 of 2023 had been filed as against 22 accused, for
various charges levelled against them concerning an incident that had
taken place on 17.08.2022 (date of occurrence). The petitioner is the
mother of A4 (detenu) in the aforesaid case. The date of birth of the
detenu is 13.03.2005 and as on 17.08.2022, the detenu was aged 17 years
5 months and 3 days.
2. Since he was a juvenile as on the date of occurrence, his case
was referred to the Juvenile Justice Board, Nagapattinam (JJB/Board)
under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ
Act). The Board had conducted a preliminary assessment of the child
under Section 15(1) of the JJ Act and passed an order on 18.11.2022
holding that the detenu could be tried as an adult.
3. The matter was thereafter taken up by the Protection of Children
from Sexual Offences Act, Nagapattinam (Pocso Court/Children’s Court)
in line with Section 18(1) of the JJ Act to re-look into the assessment of
whether the detenu, a child in conflict with the law (CCL), was to be
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treated as an adult for the purposes of trial and, vide order dated
09.06.2023 confirmed the opinion that CCL/A4 was to be tried as an
adult.
4. The order of the Board transferring the case records for trial as
an adult before the Children’s Court, Nagapattinam was thus reiterated by
the Children’s Court on 09.06.2023. Both orders have attained finality
and have not been challenged by the detenu. As a consequence, the case
was split up and the trial of the detenu was commenced in SSC.No.11 of
2023, whereas the remaining accused were tried in Sessions case No.23
of 2023.
5. Somewhere along the way, there was a consolidation of both
matters and ultimately the trial of the detenu was conducted along with
the other adult accused culminating in judgment dated 31.10.2025,
delivered by the District and Sessions Judge, Mayiladuthurai, wherein
several accused, including A4 were found guilty under Sections 302,
6. Since we are not concerned with the other accused in this matter,
we do not elaborate on the convictions in their cases. We clarify and
confirm that this HCP concerns only A4 and hence none of the
observations herein relate to the other accused in SC.No.23 of 2023.
7. The Sessions Court, Mayiladuthurai has not lost sight of the fact
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that the detenu was a CCL as on the date of occurrence, and, citing the
decision of the Constitution Bench of this Court in N.Gowthaman @
Babu v. The Government of Tamil Nadu represented by its Home
Secretary Fort St.George, Chennai 600 009 and others1, holds the detenu
entitled to the benefit of Sections 8, 10 and 10A of the Tamil Nadu
Borstals Schools Act, 1925. The prison authorities were directed to lodge
the detenu in the Borstal School till he attained the age of 21 years.
8. The fact of the matter however, is that the Constitution Bench in
N.Gowthaman @ Babu2 has suggested the repeal of the Tamil Nadu
Borstals Schools Act, 1925. In such circumstances, the prison authorities
have, for lack of any other place to send the detenu, lodged him in regular
prison.
Submissions of the Petitioner
9. The grievance of the petitioner under this Habeas Corpus
Petition is three-fold. Firstly, that the detenu had been compelled to face
trial before the regular Court of Sessions, that the sentence imposed was
illegal and contrary to the provisions of the JJ Act and thirdly, that the
detenu, a CCL at the time of occurrence, had been deprived of the
benefits and privileges available under the JJ Act and the Tamil Nadu
1
HCP.No.1441 of 2007 etc. batch dated 29.08.2016
2
Foot Note Supra (1)
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(Care and Protection of Children) Rules, 2016 (in short ‘Tamil Nadu
Rules’), particularly the provisions/Rules relating to rehabilitation and
social re-integration of a CCL alleged to have committed a heinous
offence.
10. Mr.Muthamizh Selvakumar, learned counsel appearing for the
petitioner submits that the procedure followed by the Sessions Court in
consolidating the trial and conducting a joint trial of the CCL with
accused adults, is directly contrary to Section 18(3) of the JJ Act, that
requires trial of a CCL to be conducted by the Children’s Court only.
11. The sentenced imposed upon the CCL also denotes total non-
application of mind, in that, as on date of the sentence, there were no
Borstal Schools in the State of Tamil Nadu, hence necessitating the illegal
detention of the detenu in the jail. It is, in the above circumstances that
the present HCP has been filed. Learned counsel relies on the following
cases:
1.S.Madheswaran v. State of Tamil Nadu rep. by Secretary to
Government, Home Department, Fort St.George, Chennai-9 and others3
2.Dhanalakshmi v. The State of Tamil Nadu rep. by its Superintendent of
Central Prison, Cuddalore, Cuddalore District and another4
3.CCL ‘K’ v. The State (NCT of Delhi)5
Submissions of the State
3
HCP.No.133 of 2012 dated 31.07.2012
4
HCP.No.2098 of 2023 dated 06.11.2023
5
Crl.Rev.P.No.436 of 2022 dated 03.03.2025
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12. Mr.Muniyapparaj, learned Additional Public Prosecutor
appearing for the State and Inspector of Police, Mayiladuthurai Police
Station/R1 and R2, raises a preliminary objection to the maintainability of
this HCP. His objection is mainly that no appeal has been filed by the
detenu as against judgment dated 31.10.2025 and hence no HCP would
lie in such circumstances. He relies on the following decisions in support
of his submissions.
1.N.Gowthaman @ Babu v. The Government of Tamil Nadu represented
by its Home Secretary Fort St.George, Chennai 600 009 and others6
2.Dhanam v. State of Tamil Nadu represented by its S.C.Joint Secretary to
Government Public (SC) Department Secretariat, Chennai 600 009 and
others7
3.Barun Chandra Thakur v. Master Bholu and another8
Submissions of the Amicus
13. Mr.E.V.Chandru, learned counsel who was appointed as
Amicus Curiae to assist this Court, takes us in extenso through the
scheme of the JJ Act and the Tamil Nadu Rules to set out the contours of
protection afforded to a CCL. Elaborating on the amendment to Juvenile
Justice Act after the judgment of Supreme Court in Nirbhaya’s case, he
points out that the Juvenile Justice Act was also amended, to introduce
specific provisions relating to the mode and manner of trial of offenders
between the ages of 16 and 18.
6
HCP.No.1441 of 2007 etc. batch dated 29.08.2016
7
HCP.No.2399 of 2020 dated 08.10.2021
8
2022 LiveLaw (SC) 593
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14. Hence, an individual falling within the ages of 16 to 18, who
allegedly commits an offence, is to be tried bearing in mind the special
scheme set out under the JJ Act to provide for his/her trial, sentencing and
reformation. The perspective with which the law addresses the juvenile
between 16 and 18 years is thus different.
15. On the question of maintainability of the plea for Habeas
Corpus, learned counsel relies on the judgements in Willie (William)
Slaney Vs. The State of Madhya Pradesh,9Pulukuri Kotayya v. King-
Emperor10and State of Madhya Pradesh vs Bhooraji & Ors 11 for the
proposition that every error or omission in trial will not vitiate the trial.
He would urge that the Court thus assess whether the errors are illegal,
which would have the consequence of vitiating the trial or whether they
are mere irregularities, which would be curable, thus saving the
proceedings.
16. He concludes with a suggestion that a Writ of Habeas Corpus
would lie only in the case of an illegal detention which is preventive by
the State or an illegal detention by a private person and cannot, as in the
present case, be used as an avenue to challenge a conviction and sentence
returned by the Court of law.
9
(1955) 2 SCR 1140
10
(1947) LR 74 IA 65
11
2001 (7) SCC 679
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17. To sum up his submissions, while agreeing with the learned
counsel for the petitioner that the trial and sentence, and the very
approach of the Sessions Court is contrary to the provisions of the JJ Act,
he would align with the State on the lack of maintainability of the Habeas
Corpus Petition. He relies on the following decisions to buttress his
arguments.
(i) Janardan Reddy and others v. The State of Hyderabad and others12
(ii) The Home Secretary (Prison) & Others v. H.Nilofeer Nisha13
(iii) Rajkumar v. State through The Inspector of Police, Vadamadurai
Police Station, Dindigul District.14
(iv) Karan @ Fatiya v. The State of Madhya Pradesh15
(v)State represented by Inspector of Police, Chennai v.
N.S.Gnaneswaran16
(vi) Lalita Kumari v. Government of U.P. and others17
(vii) M/s.SCG Contracts India Pvt. Ltd. v. K.S.Chamankar Infrastructure
Pvt. Ltd. and others18
Discussion
18. We have heard the rival contentions, perused the material
papers and cases cited, and devoted our anxious consideration to the
pleadings and the questions that arise therefrom. We have also had the
benefit of the records of the case in S.C.No.23 of 2023 and Special Case
212 of 2024 that we have called for from Mayiladuthurai and
12
1951 AIR 217 : 1951 SCR 344
13
Criminal Appeal No(s).144 of 2020 dated 23.01.2020
14
Crl.A(MD)No.106 of 2021 dated 06.01.2023
15
2023 LiveLaw (SC) 159
16
Criminal Appeal No.456 of 2008 dated 09.01.2013
17
Writ Petition (Criminal)No.68 of 2008 dated 12.11.2013
18
Civil Appeal No.1638 of 2019 dated 12.02.2019
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Nagapattinam respectively.
19. The terms ‘Children’s Court’ and ‘Pocso Court’ connote the
same Court, and hence, the terms ‘Children’s Court’ and ‘Pocso Court’
wherever used in this order, have been used interchangeably.
20. The admitted facts are that, on 20.11.2021, there was an
incident which led the way to a wordy altercation, fist fight and
thereafter, a fight with deadly weapons between two groups of persons. A
case in Crime No.1837 of 2021 had been lodged and charges framed
under Sections 147, 148, 341, 294(b), 323, 324, 307 and 506(ii) IPC read
with various Sections of the Scheduled Casts and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
21. Matters did not stop there, and on 17.08.2022, the date of
occurrence for the purposes of this matter, there were further attacks by
members of one group on the other, leading to the death of one Kannan.
A case was registered in Crime No.636 of 2022 for the offences under
Sections 147, 148, 341, 294(b), 342, 324, 307, 302, 506(ii), 120B of IPC
and 25(1B) of Arms Act, 1959.
22. The detenu was arrayed as A4 in Crime No.636 of 2022. The
Judicial Magistrate, Mayiladuthurai, on receipt of the case records, found
that the matter was triable by the Court of Sessions and hence committed
the case to the District and Sessions Court, Nagapattinam assigning the
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number as S.C.No.23 of 2023.
23. Prior thereto, as A4 was a juvenile as on the date of occurrence,
the matter had been referred to the Board for preliminary assessment of
the age and maturity of the juvenile. The Board, vide order dated
18.11.2022, found that the juvenile had the necessary maturity and
capacity to be aware of the act committed by him, and the consequences
thereof.
24. The case was thereafter taken up by the Sessions Judge, Special
Court for Pocso Act, Nagapattinam under Section 18(1) of the Act and
Cr.M.P.No.181 of 2023 decided on 09.06.2023 reiterating the opinion of
the Board under the JJ Act that A4, though a child in conflict with law,
was to be tried as an adult as per the provisions of the Cr.PC.
25. Applying the provisions of Section 18(3), the case records were
transferred for trial before the Children’s Court and assigned the number,
SSC No.11 of 2023. The final Report u/s 173 of Cr.P.C dated 23.09.2022
is by the JJB Nagapattinam and there is an observation that the detenu is
not in the juvenile home.
26. The Annexure to the Final Report contains the school Transfer
Certificate and photo of the detenu. The Report refers to SSC No.11 of
2023, wherein the first date is 28.03.2023, and a total of 37 hearings were
conducted before the Children’s Court spanning 28.03.2023 to
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08.07.2025. The dates are as follows: 28.03.2023, 12.04.2023,
28.04.2023, 18.05.2023, 09.06.2023, 23.06.2023, 13.07.2023,
02.08.2023, 08.08.2023, 07.09.2023, 21.09.2023, 10.10.2023,
27.10.2023, 22.11.2023, 08.12.2023, 28.12.2023, 22.01.2024,
08.02.2024, 26.02.2024, 12.03.2024, 01.04.2024, 22.04.2024,
13.05.2024, 05.06.2024, 26.06.2024, 15.07.2024, 05.08.2024,
29.08.2024, 25.09.2024, 30.09.2024, 24.10.2024, 16.12.2024,
10.02.2025, 17.03.2025, 21.04.2025, 04.07.2025 and 08.07.2025.
27. In the interim, vide docket sheet noting dated 30.09.2024, the
Sessions Judge, Special Court under Pocso Act, Nagapattinam notes thus:
Suo-Moto Hearing advanced today. Case is transferred to
District Court, Mayiladuthurai for exclusive trial of cases
under POCSO Act as per the proceedings of the District
Judge Nagapattinam in A.No.224/2024 dated 26.09.2024.
The accused is directed to appear before the Special CourtProceedings in A.No.224 of 2024 dated 26.09.2024 is not available
in the records.
28. Old SSC No.11 of 2023 was thus re-numbered as SSC NO.212
of 2024 and transferred before the District and Sessions Judge
Mayiladuthurai. The Docket order of aforesaid Court dated 24.10.2024
reads thus:
The District and Sessions Court, Mayiaduthurai has been
bifurcated from the Principle District Court, Nagapattinam
and started functioning with effect from 25.03.2023. On the
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point of territorial jurisdiction the Sessions Judge, Special
Court under POCSO Act, Nagapattinam has transferred the
cases to the District and Sessions Court, Mayiladuthurai vide
letter in D.No.764/2024 dated 01.10.2024 and the same was
taken on file new number assigned as Spl.S.C. 212/2024 and
issue fresh accused summon for the hearing 16.12.2024. Send
Court Notice to the concerned police and Defence counsel
regarding the transfer of the case.
29. The docket sheet notings of the District and Sessions Court,
Mayiladuthurai that heard Spl.S.C.No 212/2024 on 16.12.2024,
10.02.2025, 17.03.2025, 21.04.2025, 04.07.2025 and 08.07.2025 read
thus:
SPL.SC.No.212/2024
Mayiladuthurai P.S.
CCL
Santhosh S/o Muthu (SC 23/23)C/W
u/s. 120(B), 147, 148, 149, 341, 294(b), 342, 324, 307, 506(ii), 302 IPC,
25(1)(b) of Arms Act
Adv. Mr.Mahendran10.02.2025 LW1 to 3
For appearance of Accused.
(CCL) order
Accused present. Mr.K.Mahendran Advocate filed continuation
Memo for accused. Issue summon to LW1 to LW3 and case posted
to 17.03.2025.
17.03.2025 For Examination of LW1 to 3
Accused absent. U/s.355 BNSS petition filed and allowed. Witness
not produced. Issue summon to LW1 to 3 and case posted to
21.4.25.
21.4.25
For Examination of LW1 to LW3
Accused present. Witness not produced. Send Letter to S.P.
regarding non production of witness at the stage of case is
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Examination of Witness and case posted to 4.07.2025.
SPl. SC.212/2024
Mayiladuthurai P.S.
Santhosh S/o Muthu.
4.7.2025
For examination of LW1 to LW3.
Accused present. Adj. to 8/7/25.
8/7/25
For examination of LW1 to LW3.
This case is clubbed with its mother case in Spl.SC.23/2023.
30. As per order dated 09.06.2023 in Crl.M.P.No.181 of 2023, trial
was to be conducted in Special Case No.212 of 2024 to try A4/child in
conflict with law as an adult, in terms of the benevolent provisions of the
JJ Act. The trial in S.C.No.23 of 2023 thus ought to have been conducted
separately in respect of the other accused who are adults.
The twist in the tale
31. On 08.07.2025, there is a docket order of the District and
Sessions Court, Mayiladuthurai, that reads thus:
A4 in the original case namely Santhosh son of Muthu is
appeared today. His case was split up in SPL.SC 212/2024. As
per the request of the learned counsel of the said accused and
with concurrence of the learned public prosecutor the case
against Santhosh in SPL.SC 212/2024 is clubbed with this
case. In respect of the witness already examined the learned
counsel adopted the cross examination of other accused. A6
and A20 absent petition filed and allowed. A8, A18 and A19
are in the Judicial Custody in another case. The learned
counsel appearing for A8, A18 and A19 agreed to proceed
with trial as he is defending their right. LW2 examined as
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PW3, LWS examined as PW4 and LW9 examined PW5, A1, A2,
A3, A4, A5, A6 present. Issue summon to LW11 to 23. A9, 19,
20 produced through VC. by 18.07.2025.
32. Based on the above docket order which indicates that there was
a request by the learned counsel for A4/detenu who wanted a joint trial of
the detenu with the other accused, Special S.C.No.212 of 2024 was
clubbed with S.C.No.23 of 2023 and a joint trial was conducted. In the
judgment ultimately passed on 31.10.2025, the learned District and
Sessions Judge, Mayiladuthurai refers to the process of clubbing at
paragraph 17 in the following terms:
17. Santhosh, S/o. Muthu, arrayed A4 in the mother case was
treated as a juvenile and the case against him, was split up in
SSC No.11/2023 on the file of Special Court. Under POCSO
Act, Nagapattinam. The charges are framed against him U/s
148. 341, 342, 294(b), 302 of IPC and 25(1B) of Arms Act and
the case was transferred to this court on the point of territorial
jurisdiction and as per order in CrlM.P No. 181/2023 dated
09.06.2023 new number assigned as SSC.No.212/2024. Later
the case of A4 clubbed with this parent’s case. Its details are
given in the forthcoming paragraphs.
33. In paragraph 17, extracted above, he refers to the order in
Crl.M.P.No.181 of 2023 as the basis of transfer of the Juvenile’s case to
the District and Sessions Court at Mayiladuthurai. It thus remains to be
seen if this is correct, as, under order dated 18.06.2023, the Sessions
Judge who was presiding over the Special Pocso Court in Nagapattinam
had transferred the case records for trial before the Pocso Court only.
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Issues
34.On the basis of the admitted facts as above, we frame the issues
to be decided as (i) whether the habeas corpus petition is maintainable
(ii) whether the assumption of jurisdiction by the District and Sessions
Judge, Mayiladuthurai in Special Case 212 of 2024 by clubbing the case
of the juvenile with other adult accused in S.C.No.23 of 2023,is right in
law? (iii) If the answer to the second issue is in the affirmative, what is
the consequence of the wrongful assumption of jurisdiction by the District
and Sessions Court, Mayiladuthurai.
Scheme of the JJ Act
35. The Juvenile Justice Act was specifically enacted in 2015 for
the care and protection of children. It was amended in 2021 to provide for
a special mode of trial of a CCL between the ages of 16 and 18, as an
adult, vide Act 23 of 2021, with effect from 01.09.2022 onwards, with
various reformative and corrective measures as well. There are certain
definitions that would be relevant for the purpose of this case.
36. Under Section 2(12) a ‘child’ must be a person who has not
completed 18 years of age. Under Section 2(13), a ‘child in conflict with
law’ refers to a child alleged or found to have committed an offence, and
who has not completed 18 years of age as on the date of commission of
such offence.
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37. In order to determine whether the individual in question is a
child for grant of the protection under the JJ Act, it is the age of the
individual as on the date of occurrence, that is relevant. Applying the
provisions of Section 2(12) and 2(13) of the JJA, the detenu, date of birth
being 13.03.2005, was a ‘child in conflict with law’ as on the date of
occurrence, hence entitled to the benefits under the JJ Act.
38. Section 2(15) defining ‘child friendly’, means, behaviour,
conduct, practice, process, attitude, environment or treatment that is
humane, considerate and in the best interests of the child. Section 2(20)
defines the Children’s Court, and means a Court established under the
Commission for Protection of Child Rights Act, 2005 or a Special Court
under the Protection of Children from Sexual Offences Act, 2012
wherever existing, and where such Courts have not been designated,
reference to the Court of Sessions having jurisdiction to try offences
under the Pocso Act.
39. Hence, a Children’s Court shall be a Special Court as
constituted under the Pocso Act, or where such Court has not been
constituted, the Court of Sessions in that particular District that has been
designated to try offences related to the Pocso Act. In the event of a
vacancy in the post of a Presiding Officer in the Special Court, it is the
learned Sessions Judge who would hear the cases assigned to the Special
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Court, though in his/her capacity as the Sessions Judge presiding over the
Children’s Court, and through the prism and protection of the JJ Act.
40. If there is a Special Pocso Court, all the cases there, would, by
design and default, be tried in line with the prescriptions under the JJ Act.
However, if a regular Sessions Court is designated additionally as a Pocso
Court, it is imperative that the learned Special Judge be conscious of the
distinction between his role as a Sessions Judge on the one hand, and his
role as Presiding Officer under the Pocso and JJ Acts on the other, as the
approach, spirit and objects are unique, distinct and specific.
41. While as regards the former, the law applied would be criminal
law as applicable to adults, in the case of the latter, the approach of
Judges would be different and distinct, as would be the manner in which
the trial is conducted and the sentence imposed, having regard to the
principles, prescriptions and object of the JJ Act.
42. Section 2(33) defines a ‘heinous offence’ as being an offence
for which minimum punishment under the Indian Penal Code or any other
law for the time being in force, is imprisonment of 7 years.
43. Section 3, falling under Chapter II, is the soul of the JJ Act and
sets out various salutary principles involved in the care and protection of
children. Those principles are,
(i) presumption of innocence of any malafide or criminal intent,
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(ii) dignity and worth of the child
(iii) participation of the child
(iv) best interests of the child
(v) family responsibility
(vi) safety of the child
(vii) Positive measures for promoting and providing an enabling
environment to the child
(viii) Use of non-stigmatising semantics
(ix) non-waiver of rights
(x) equality and non-discrimination on any grounds including sex,
caste, ethnicity, place of birth, disability, and provision of equality of
access, opportunity, and treatment shall be provided to every child
(xi)Right to privacy and confidentiality
(xii) Institutionalisation as a measure of last resort
(xiii)Repatriation and restoration
(xiv) Fresh start
(xv)Diversion from judicial proceedings as far as possible
(xvi) Natural justice.
44. Thus, any proceeding that is carried out in regard to a CCL
must always have, as a reference and backdrop, the above salutary
measures in mind. In a manner of speaking, the Children’s Court
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assumes, in addition to the role of Presiding Officer, the role of Parens
Patriae, to balance the delicate compulsions of both, imposing appropriate
punishment, and reforming, the CCL.
45. Under Section 4 of the JJ Act a Juvenile Justice Board is
constituted which is tasked with making a preliminary enquiry and
assessment in relation to the child produced before it, including the ability
of the child to comprehend his actions and the consequences thereof.
46. Since the offence that the detenu was convicted with in this
case constitutes a heinous offence, a preliminary assessment would have
to be made under Section 15 with regard to the mental and physical
capacity of the child to commit the offence, ability to understand the
consequence of the offence and the circumstances in which he allegedly
committed the offence. Upon completion of the assessment, the Board
was of the opinion that the detenu was competent, both to commit the
offence, and to be aware of the consequences thereof.
47. The proviso to Section 15(2) states that the order of the Board
making the preliminary assessment can be appealed under Section 101(2)
of the JJ Act. In the present case, the preliminary assessment has been
accepted by the detenu.
48. Under Section 18, once the Board is satisfied that a child has
committed a petty offence or serious offence, or a child above the age of
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16 has committed a heinous offence, and based on the nature of offence
and its assessment, the Board may either (i) allow the child to go home
after advice/admonition, provide counselling either in a group or
otherwise, (ii) order that the child perform community services, (iii) order
the child or parents or the guardian of the child to pay fine, (iv) direct the
child to be released on probation of good conduct and placed under the
care of any parent, guardian or fit person, (v) direct the child to be
released on probation of good conduct and placed under the care and
supervision of any fit facility for a period of three years or (vi) direct the
child to be sent to a special home for a period not exceeding three years
for providing reformative services such as education, skill development,
counselling, behaviour modification therapy, and psychiatric support and
others.
49. The proviso to Section 18 states that depending on the conduct
and behaviour of the child, if the Board feels that, it would not be in the
child’s interest, or in the interest of other children housed in the Special
Home, the child may be sent to a place of safety.
50. If the preliminary assessment made by the Board is that the
juvenile may be tried as an adult, such assessment is subject to further
confirmation by the Children’s Court under Section 19 of the JJ Act.
Section 19 says that after such review, the Children’s Court may decide
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whether there is a need for trial of the child as an adult per the provisions
of Cr.P.C. and pass orders considering the special needs of the child, the
tenets of fair trial and maintaining a child friendly atmosphere.
51. If the Children’s Court believes that there is no need for trial of
the child as an adult, the Children’s Court may itself conduct enquiry
assuming the role of the Juvenile Justice Board, passing orders in line
with Section 18 and 19 of the JJ Act. Section 19(2) states that the final
order passed by the Children’s Court shall include an individual care plan
for the rehabilitation of child, including follow up by the probation officer
or the District Child Protection Unit or a social worker.
52. Section 19 (3) states that the Children’s Court shall ensure that
the child who is found to be in conflict with law is sent to a place of
safety till he attains the age of 21, and thereafter transferred to a jail
ensuring continuance of reformative services such as education, skill
development, and alternative therapy like counselling, behaviour
modification therapy, and psychiatric support, if required. Section 19(4)
states that periodic reports as per Section 19(4) shall be sent to the
Children’s Court for proper follow-up.
53. Section 21 is critical to the scheme of juvenile justice, and
states that no child in conflict with the law, shall be sentenced to death, or
for life imprisonment without the possibility of release, for any offence
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either under the provisions of the JJ Act, the IPC or any other law for the
time being in force.
54. This provision carves out an essential feature of juvenile
justice, being the possibility of reformation and release. A sentence of
punishment under criminal law is always subject to the possibility of
release as an act of benevolence by the State/Government.
55. The JJ Act, however, makes a marked departure from this
position. Section 20 states that, where the child in conflict with the law
attains the age of 21, but is yet to complete the term of stay, the
Children’s Court shall have an evaluation of the child made by a
competent person, such as the probation officer, District Child Protection
Unit, social worker or by the Court itself, so as to determine whether the
child has undergone reformative changes and can contribute usefully to
the society.
56. Under Section 20(2), the Children’s Court may then exercise
the power of releasing the child on such conditions as it deems fit, which
includes appointment of a monitoring authority for the remainder of the
prescribed term of stay. Alternatively, the Children’s Court may, at its
discretion, under Section 20(2)(ii) decide that the child may complete the
remainder of his term in a jail. It is for this reason that Section 21
contains the possibility and promise (at its discretion, and subject to
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conditions) of a Court-ordered release, hitherto unknown to Criminal
Law.
57. Hence, on a combined reading of Sections 20 and 21, it is
possible for the Children’s Court even in the case of the commission of
heinous offence by a child in conflict with the law, to release the child at
the discretion of the Court and on the imposition of conditions deemed fit
by the Court.
58. Another of the statutory mandates of the JJ Act is under Section
23 which states that, notwithstanding anything contained in Section 223
of the Cr.P.C or in any other law for the time being in force, there shall be
no joint proceedings of a child alleged to be in conflict with law, with an
adult. Section 23(2) states that, if during the inquiry by the Board or by
the Children’s Court, the person alleged to be in conflict with law is
found not to be a child, such person shall not be tried along with a child.
This is an absolute bar, in light of which an individual determined to be a
child cannot be tried jointly with an adult.
59. The Tamil Nadu Juvenile Justice (Care and Protection of
Children) Rules, 2017, in exercise of power conferred under Section 110
(1) of the JJ Act carries forward the beneficial provisions set out under
the JJ Act to the Rules as well. We extract Rule 15, which sets out the
procedure in relation to the Children’s Court and the monitoring
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authorities:
15. Procedure in relation to Children’s court and
Monitoring Authorities.-
(1) Upon receipt of preliminary assessment from the
Board the Children’s court may decide whether there is need
for trial of the child as an adult or as a child and pass
appropriate orders.
………..
(8) Where the Children’s court decides that there is a
need for trial of the child as an adult,-
(i) It shall follow the procedure prescribed by the Code
of Criminal Procedure, 1973 (Central Act 2 of 1974) of trial
by sessions and maintaining a child friendly atmosphere.
(ii) The final order passed by the Children’s court shall
necessarily include an individual care plan for the child as per
Form V prepared by a probation officer or Child Welfare
Officer or recognized voluntary organisation on the basis of
interaction with the child and his family, where possible;
(iii) Where the child has been found to be involved in
the offence, the child may be sent to a place of safety till the
age of twenty-one years;
(iv) While the child remains at the place of safety, there
shall be yearly review by the probation officer or the District
Child Protection Unit or a social worker in Form IX to
evaluate the progress of the child and the reports shall be
forwarded to the Children’s court;
(v) The Children’s court may also direct the child to be
produced before it periodically and at least once every three
months for the purpose of assessing the progress made by the
child and the facilities provided by the institution for the
implementation of the individual care plan;
(vi) When the child attains the age of twenty-one years
and is yet to complete the term of stay, the Children’s court
shall,-
(a) interact with the child in order to evaluate whether
the child has undergone reformative changes and if the child
can be a contributing member of the society.
(b) take into account the periodic reports of the
progress of the child, prepared by the probation officer or the
District Child Protection Unit or a social worker, if needed
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and further direct that institutional mechanism if inadequate
be strengthened.
(c) After making the evaluation, the Children’s court
may decide to,-
(ca) release the child forthwith;
(cb) release the child on execution of a personal bond
with or without sureties for good behaviour;
(cc) release the child and issue directions regarding
education, vocational training, apprenticeship, employment,
counselling and other therapeutic interventions with a view to
promoting adaptive and positive behaviour etc.;
(cd) release the child and appoint a monitoring
authority for the remainder of the prescribed term of stay. The
monitoring authority, where appointed shall maintain a
Rehabilitation Card for the child in Form X.
……………
60. We have set out above the scheme under the JJ Act and Tamil
Nadu Rules in regard to treatment of a CCL who is tried as an adult.
Admittedly, the detenu was a CCL at the time of occurrence and the
relevant date to determine the treatment accorded to him is the date of
occurrence which is 17.08.2022. Bearing in mind the above scheme, we
now address the first issue relating to the assumption of jurisdiction of the
District and Sessions Judge, Mayiladuthurai in the trial of the detenu, that
too after clubbing the detenu’s case in SPL SC.No.212/2024 with the case
of the adult accused in S.C.No.23/2003.
61. We have seen that both the Board and the Special Judge,
Children’s Court, Nagapattinam had ordered the CCL to be tried as an
adult applying the provisions of the Cr PC tempered with the provisions
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of the JJ Act and TN Rules. The District and Sessions Judge however,
under docket order dated 08.07.2025, has clubbed the two trials,
conducting a joint trial of Special SC.No.212 of 2024 along with
S.C.No.23 of 2023. His justification for the clubbing, is that a request had
been so made by the counsel for A4. This has been reiterated by learned
Additional Public Prosecutor as well.
62. This argument flies in the face of Section 23 read with Section
3(ix) of the JJ Act. Section 23, as we have earlier noted, places a
categoric embargo against a juvenile being tried along with an adult. This
is a gross error in law. Moreover, the condition of separate trials is not
liable to be waived, as per Section 3(ix) which stipulates a specific
Principle to that effect. The Principle reads:
3. General Principles to be followed in administration of
Act.- The Central Government, the State Governments, the
Board, the Committee or other agencies, as the case may be,
while implementing the provisions of the Act shall be guided
by the following fundamental principles, namely:- (ix)
Principle of non-waiver of rights: No waiver of any of the
right of the child is permissible or valid, whether sought by
the child or person acting on behalf of the child, or a Board
or a committee and any non-exercise of a fundamental right
shall not amount to a waiver.
63. The Right under Section 23 to an independent and separate
trial, conducted in line with the stipulations under the JJ Act is thus an
indefeasible one, and one that cannot be waived even by the juvenile
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himself/herself, which is the reason assigned by the learned District and
Sessions Judge, Mayiladuthurai for clubbing of the case.
64. We thus hold that the jurisdiction assumed by the District and
Sessions Court Mayiladuthurai, in consolidating the Special case of the
juvenile with the Sessions case of the other adult accused, and conducting
a joint trial of the two cases, is utterly bad in law, and vitiates the
proceedings in entirety. We answer issue No. 1 accordingly.
65. We now examine the consequences of the wrongful assumption
of jurisdiction. The detenu has, with the conduct of joint trial in the
Sessions Court, been deprived of, and denied all the salutary features
under the JJ Act and TN Rules. We start with the beneficial presumptions
under Section 3.
66. A critical distinction in approach, between general criminal law
and criminal law as applicable to a juvenile, is the presumption of
innocence with no malafide or criminal intent. While under general law
too, an accused is presumed to be innocent until proved guilty, this is
reiterated with more force in the case of a CCL. Hence, the burden cast
upon the prosecution would have been that much stronger. Unfortunately,
this preferential treatment that ought to have been extended to the detenu
was given a go-by by the Sessions Court.
67. In this case, both the JJB and Children’s Court have held that
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the detenu was to be tried as an adult. Section 19 vests vast, and
munificent powers on the Children’s Court to extend a range of measures
including punishment of different kinds, at its discretion, and imposing
such conditions as it thinks fit. By conducting a joint trial and not
following the mandate of the JJ Act, the detenu has been denied these
recourses.
68. Sections 20 and 21 of the Act enable the Presiding Officer of
the Children’s Court to consider release of the juvenile at his discretion.
This benefit too, has been lost.
69. In summation, and to answer issue No.2, the consequence of
the illegal assumption of jurisdiction is that the detenu has been treated
not as a CCL but as an adult for the purpose of the criminal trial sans the
statutorily available benefits. Though the juvenile in certain cases is tried
‘as an adult’, such a trial is to be set in the context of the JJ Act and Tamil
Nadu Rules. The detenu has lost the benefit of all the beneficial
presumptions and general principles set out under Section 3 for the
administration of the JJ Act, and has also been denied the benefit of the
orders that could have been passed under Section 19(2) of the JJ Act
including the benefit of rehabilitational efforts and support, such as
counselling, behavioural modification therapy, psychiatric support and
child friendly treatment.
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70. Most importantly, the detenu has been denied the benefit of
Section 21 of the JJ Act, for early release at the discretion of the
Children’s Court. These denials assume very serious consequences of
violation of statutory rights of the child, as protected under the JJ Act.
Issue No.2 is answered as aforesaid.
71. We address the issue of maintainability last. The relevant dates
are as follows. The date of birth of the detenu is 13.03.2005. The date of
incident is 17.08.2022, on which date, he was 17 years 5 months and 3
days. He became an adult at the age of 18 on 13.03.2023. The date of
sentence is 09.06.2023, and in total effacement of the provisions of the JJ
Act, the detenu has been kept in regular jail from the date of sentence,
i.e., from 09.06.2023 till date.
72. In light of our conclusions on issue Nos. 1 and 2 above, the
detention of the detenu between 09.06.2023 when he was 18 years and 3
months till date, even if in a different wing having young offenders, is
nothing if not illegal.
73. Mr.Muniyapparaj has argued that the conduct of the trial by the
Sessions Court constitutes an irregularity, not fatal to the proceedings. In
Janardan Reddy and others19, a Constitution Bench of the Supreme Court
was concerned with the basic difference between want of jurisdiction and
19
Foot Note Supra (12)
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illegal or irregular exercise of jurisdiction.
74. That too was a case where the prayer was for Habeas Corpus,
on the ground that the detention of the petitioner was illegal, on the
ground of misjoinder of charges. After considering a series of judgments,
the Court states as follows:
‘The trend of decisions thus seems to be in favour of the view
that if it should appear on the face of the return that a person
is in detention in execution of a sentence on indictment on a
criminal charge, that would be a sufficient answer to an
application for a writ of habeas corpus. Assuming, however,
that it is open even in such cases to investigate the question of
jurisdiction, as was held in In re Anthers it appears to us that
the learned judges who decided that case went too far in
holding that notwithstanding the fact that the conviction and
sentence had been upheld on appeal by a court of competent
jurisdiction, the mere fact that the trial court had acted
without jurisdiction would justify interference, treating the
appellate order also as a nullity. Evidently, the appellate court
in a case which properly comes before it on appeal, is fully
competent to decide whether the trial was with or without
jurisdiction, and it has jurisdiction to decide the matter rightly
as well as wrongly. If it affirms the conviction and thereby
decides wrongly that the trial court had the jurisdiction to try
and convict, it cannot be said to have acted without
jurisdiction, and its order cannot be treated as a nullity. It is
true that there is no such thing as the principle of constructive
res judicata in a criminal case, but there is such a principle as
finality of judgments, which applies to criminal as well as civil
cases and is implicit in every system, wherein provisions are to
be found for correcting errors in appeal or in revision. Section
430, Criminal Procedure Code, and section 355 of the
Hyderabad Criminal Procedure Code, have given express
recognition to this principle of finality by providing that
“Judgments and orders passed by an Appellate Court upon
appeal shall be final, except in cases provided for in section
417 and Chapter XXXII.’
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75. The argument of the State is that till such time conviction dated
31.10.2005 is set aside in a manner known to law, the detention cannot be
said to be illegal. There are two aspects to the matter. Firstly, we have to
appreciate the nature of error and make a distinction between whether the
error amounts to an irregularity, curable in law, or an illegality that would
go to the root of the matter and vitiate all proceedings.
76. In Janardhan Reddy’s20 case there was a misjoinder of charges
that, under Section 460/464 of the Cr.P.C, is an irregularity that would not
vitiate the trial or the assumption of jurisdiction. It is on this account that
the conviction in that case (Janardan Reddy and others) was confirmed,
notwithstanding the error in misjoinder of charges.
77. However, the errors as we have found in the present case, are
grave as they vitiate the statutory scheme of the JJ Act, and go to the root
of the matter. We have gone through the entire scheme of the JJ Act and
have pointed out various instances where the statutory provisions of the
JJ Act have been violated, ignored and given a go-by.
78. At the risk of repetition, we may say that Section 23
specifically mandating an individual trial, and making it clear that no
joint trial with adults is to be conducted, has been violated, Sections 19,
20 and 21 which provide for method and mode of sentencing of a CCL
20
Foot Note Supra (12)
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have been ignored, and the detenu has been kept in regular jail contrary to
the express stipulation, object and purpose of the JJ Act. These are errors
which, in our considered view, will not constitute mere irregularities but
illegalities that would vitiate the trial and sentence.
79. We draw support from a judgment of the Division Bench of this
Court in S.Madheswaran21. This very issue came to be considered in that
matter and after noticing the decision in Suresh @ D.Sureshkumar V. The
Inspector of Police and others22 and several other cases, the Court
concluded that the question of juvenility can be raised at any time, even
after disposal of the case.
80. There were instances where the plea of juvenility had been
established even after the conviction had been upheld by Supreme Court.
We thus conclude that this Habeas Corpus Petition is maintainable.
Conclusion
81. We now address the consequence of our decision, that the plea
of Habeas Corpus is maintainable for want of jurisdiction and illegalities
committed by the learned District and Sessions Court, Mayiladuthurai.
The sequitur is that the trial is vitiated, and consequently, the finding of
guilt and sentence are liable to be set aside. In the interests of justice, we
21
Foot Note Supra (3)
22
CDJ 2012 MHC 3086
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are inclined, however, to remand the matter to the Children’s Court for
retrial. We also direct, in the facts of this case, that the evidence recorded
in S.C.No.23 of 2023 shall be deemed to have been recorded by the
Children’s Court.
82. In such a circumstance, we pass the following order:
(i) The authorities are directed to transfer forthwith the case files
including the evidence recorded to the Presiding Officer of the Children’s
Court, Mayiladuthurai. In other words, the evidence recorded in
S.C.No.23 of 2023 insofar as it relates to A4/detenu, shall be placed along
with Special S.C.No.212 of 2024 before the Presiding Officer of the
Children’s Court at Mayiladuthurai, forthwith.
(ii) The above Children’s Court shall take up the matter
immediately and decide the same in priority, in light of the provisions of
the JJ Act, including specifically Sections 3, 19, 20, and 21 thereof. The
Court shall permit the prosecution and the defence to adduce additional
evidence, if required, (including recall of witnesses for further
examination or cross examination), hear the detenu, the State or any other
party that the Court deems necessary, and pass orders afresh in relation to
the charges laid as against A4/detenu.
(iii) The above exercise shall be completed within a period of six
(6) months from date of uploading of this order on the website of this
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Court.
83. With our conclusion that the detention has been illegal since
09.06.2023, there is no further justification for the continued retention of
the detenu in jail. In light of our directions in the paragraph supra, we
direct the release of the detenu, Santhosh, S/o. Muthu, PID No. 727002
aged 19 years, presently confined in Central Prison, Cuddalore on bail on
the following conditions:
i. The detenu shall execute a bond for a sum of Rs.10,000/-
(Rupees Ten Thousand only), with two sureties each for a
like sum to the satisfaction of the District and Sessions
Judge, Mayiladuthurai;
ii. The detenu and the sureties shall affix their photographs and
Left Thumb Impression in the surety bonds;
iii. The detenu shall appear before the Inspector of Police,
Mayiladuthurai Police Station on every Monday at 10.30
a.m;
iv. The detenu shall not abscond or tamper with the evidence or
witness either during investigation or trial;
v. If there is a breach of any of the aforementioned conditions,
the Trial Court is entitled to take appropriate action against
the detenu in accordance with law, as if the conditions have
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been imposed and the detenu released on bail by the learnedMagistrate/Trial Court himself, as laid down by the Hon’ble
Supreme Court in P.K.Shaji Vs. State of Kerala [(2005) AIR
SCW 5560] and;
vi. If the detenu thereafter absconds, a fresh FIR shall be
registered under Section 229-A IPC.
84. The discussion in the paragraphs supra leading to our
conclusion that the confinement of the detenu was illegal, reveals a lack
of appreciation of the provisions and operation of the JJ Act by the
learned District and Sessions Judge, Mayiladuthurai. In order to prevent
the recurrence of such an instance, we direct the Registry to forward a
copy of this order to the officer concerned, District and Sessions Judge,
Mayiladuthurai forthwith.
85. In light of our conclusion that the detention of the detenu from
09.06.2023 till date is illegal, he is liable to be compensated for the same.
The detention of the detenu has been held to be illegal on account of
various irregularities in the conduct of trial. That apart, i) the learned
Judge has on 31.10.2025 directed the detenu to be placed in Borstal
School oblivious of the decision of the Constitution Bench in the case of
N.Gowthaman @ Babu23 and the Tamil Nadu Borstal Schools (Repeal)
23
Foot Note Supra (1)
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Act, 2025, gazetted by the Government on 22.01.2025.
86. In light of the aforesaid G.O. doing away with the system of
Borstal Schools the State has placed the detenu in regular jail without
even seeking a clarification from the learned District and Sessions Judge,
Mayiladuthurai as to the proper course of action to be adopted. This is
what has led to the illegal detention of the detenu. The Respondents shall
accordingly deposit an amount of Rs.1,00,000/- (Rupees one lakh only) to
the credit of his bank account within two weeks from today and file proof
of compliance thereof.
87. We place on record our appreciation for the learned Amicus
Curiae Mr.E.V.Chandru in this matter. This Habeas Corpus Petition is
disposed in terms of this order.
[A.S.M, J.] [S.M, J.]
08.04.2026
sl
Index:Yes/No
Speaking order/Non-speaking order
Neutral Citation:Yes/No
Note: Registry is directed to issue a copy of this order today.
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To
1.The Superintendent of Prison,
Central Prison, Cuddalore,
Cuddalore District.
2.The Inspector of Police,
Mayiladduthurai Police Station,
Mailaduthurai District.
3.The Superintendent of Prison,
Central Prison, Cuddalore.
4.The Public Prosecutor,
High Court, Madras.
5. The District and Sessions Judge, Mayiladuthurai.
6. The Registrar, District Judiciary, High Court, Madras.
6. 5. t
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DR. ANITA SUMANTH,J.
and
SUNDER MOHAN,J.
sl
7
H.C.P.No.2743 of 2025
08.04.2026
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