Babli And Another vs State Of Uttarakhand And Another on 10 July, 2026

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    Uttarakhand High Court

    Babli And Another vs State Of Uttarakhand And Another on 10 July, 2026

                                                UKHC010077882024
    
    
    
                                                           2026:UHC:5622
    
    
    
    HIGH COURT OF UTTARAKHAND AT NAINITAL
     Criminal Misc. Application U/s 482 No. 978 of 2024
                             10TH July, 2026
    
    
    Babli and Another                                     --Applicants
    
                                   Versus
    
    State of Uttarakhand and Another                   --Respondents
    
    ----------------------------------------------------------------------
    Presence:-
    Mr. Prem Kaushal, learned counsel for the applicants
    Mr. Pankaj Joshi, learned A.G.A. for the State.
    ----------------------------------------------------------------------
    
    Hon'ble Siddhartha Sah, J.
    

    By means of the present Criminal Misc.

    Application under Section 482 Cr.P.C., the applicants

    SPONSORED

    have sought quashing of the impugned order dated

    06.05.2024, passed by learned Additional Sessions

    Judge, Khatima, District Udham Singh Nagar in

    Sessions Trial No.65 of 2012, arising out of FIR No.254

    of 2011, ‘State vs. Prabhunath & Others under Sections

    304, 302 & 201 of IPC, Police Station Khatima, District

    Udham Singh Nagar.

    2. It has been informed that the respondent

    no.2 has since died.

    3. Brief facts of the case necessary for the

    adjudication of the present Criminal Misc. Application

    under Section 482 Cr.P.C. are as follows :-

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    (i) First Information Report was lodged by the
    respondent no.2, which was registered as FIR
    No.254 of 2011 for the offence punishable under
    Sections 147, 148, 302, 201 & 34 of IPC, at Police
    Station Khatima, District Udham Singh Nagar.

    Though the applicants were named in the FIR but
    the charge-sheet was submitted only against three
    accused persons, namely Prabhunath, Punnalal
    and Panchanand. It was only during the trial, on
    an application moved under Section 319 Cr.P.C.,
    which was allowed by the trial court vide order
    dated 05.07.2014 that the applicants and one
    Jyoti were summoned as accused under Section
    319
    Cr.P.C.. After summoning the applicants
    under Section 319 Cr.P.C., the applicants
    challenged said the summoning order dated
    05.07.2014 before this Court by way of filing a
    Criminal Revision, but the same was dismissed
    vide order dated 02.11.2017. However, the
    applicants were directed to appear before the trial
    court and move the bail application and the trial
    court was directed to decide the same as
    expeditiously as possible. Thereafter, the
    applicants surrendered before the trial court and
    moved the bail application and the same was
    allowed on the same day.

    (ii) It is further the case of the applicants that
    since the applicants were juvenile on the date of
    incident, therefore, an application dated
    01.05.2024 was moved by the applicants along
    with Jyoti, praying to declare them as juvenile and
    by separating their files, the same be sent before

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    Juvenile Justice Board for trial. In the said
    application, it has been stated that the on date of
    incident i.e 23.11.2011, date of birth of the
    accused Jyoti D/o Dilip being 14.06.1997 she was
    14 years, 5 months & 11 days old; date of birth of
    Babli D/o Videshi being 05.07.1995 she was 16
    years 4 months 18 days old and date of birth of
    Pappu S/o Pardeshi being 14.02.1995 he was 16
    years 9 months 11 days old and all the three
    accused were minor on the date of incident.

    (iii) The learned Additional Sessions Judge,
    Khatima, District Udham Singh Nagar vide
    impugned order dated 06.05.2024 rejected the
    application on behalf of present applicants,
    namely Babli Kumari and Pappu. However, co-
    accused Jyoti has been declared juvenile and her
    file has been ordered to be separated and sent to
    the Juvenile Justice Board.

    4. Assailing the aforesaid order dated

    06.05.2024, the learned counsel for the applicants

    would submit that on the date of incident, the

    applicants were 16 years 4 months 18 days and 16

    years 09 months 11 days of age respectively. Therefore,

    the impugned order refusing them to declare juvenile is

    apparently erroneous and is against the provisions of

    Juvenile Justice (Care and Protection of Children) Act,

    2015 (hereinafter referred to as Juvenile Justice Act,

    2015). He further submitted that the application of the

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    applicants has been rejected on the sole ground that

    they were more than 16 years of age on the date of

    incident, this cannot be a sustainable ground to reject

    the application and the impugned order is against the

    letter and spirit of the Juvenile Justice Act.

    5. Referring to the impugned order dated

    06.05.2024, learned counsel for the applicants would

    submit that even from a bare reading of the order dated

    06.05.2024, it is clear that the learned Additional

    Sessions Judge, Khatima did not dispute the respective

    ages of the applicants to be between 16 & 18 and as per

    the provision of Section 2 (13) of the Juvenile Justice

    Act, 2015, the applicants would be ‘Child in Conflict

    with Law’. Section 2 (13) of Act, 2015 is being extracted

    hereunder for ready reference.

    “2(13) “child in conflict with law” means a child
    who is alleged or found to have committed an
    offence and who has not completed eighteen years
    of age on the date of commission of such offence”.

    6. To buttress his submissions, learned counsel
    for the applicants would rely upon the judgment of the
    Hon’ble Supreme Court in the case of Thirumoorthy
    vs. State
    represented by the Inspector of Police,
    reported in (2024) 12 SCC 307, and in particular has
    drawn the attention of the Court to para nos. 29,30 and

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    40 of the said judgment, which are reproduced
    hereunder for ready reference.

    “29. The provisions contained in Section
    9(1)
    stipulate that when a Magistrate not
    empowered to exercise the power of the Board under
    the Act is of the opinion that the person alleged to
    have committed the offence and brought before him
    is a child, he shall, without any delay, record such
    opinion and forward the child immediately along
    with the record of such proceedings to the Board
    having jurisdiction.

    30. Section 9(2) and Section 9(3) cast a burden that
    where the Court itself is of the opinion that the
    person was a child on the date of commission of the
    offence, it shall conduct an inquiry so as to
    determine the age of such person and upon finding
    that the person alleged to have committed the
    offence was a child on date of commission of such
    offence, forward such person to the Board for
    passing appropriate orders and sentence, if any,
    passed by the Court shall be deemed to have no
    effect.

    40. Thus, on the face of the record, the
    proceedings undertaken by the Sessions Court in
    conducting trial of the CICL, convicting and
    sentencing him as above are in gross violation of
    the mandate of the Act and thus, the entire
    proceedings stand vitiated.”

    7. Thus, placing reliance upon the provisions of

    the Act, 2015, learned counsel for the applicants would

    submit that the said Act is the beneficial legislation and

    has to be read in favour of the Child in Conflict with

    law, whenever the plea of juvenility is raised at any

    stage.

    8. In reply to the submissions of the learned

    counsel for the applicants, Mr. Pankaj Joshi, learned

    AGA would very fairly submit that in the present case,

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    the relevant provisions of the Act. 2015 would be

    Section 9(2) & (3). Section 9 of the Act, 2015 is

    extracted hereunder for ready reference.

    “9. Procedure to be followed by a Magistrate
    who has not been empowered under this Act :-

    (1) When a Magistrate, not empowered to exercise
    the powers of the Board under this Act is of the
    opinion that the person alleged to have committed
    the offence and brought before him is a child, he
    shall, without any delay, record such opinion and
    forward the child immediately along with the
    record of such proceedings to the Board having
    jurisdiction.

    (2) In case a person alleged to have committed an
    offence claims before a court other than a Board,
    that the person is a child or was a child on the
    date of commission of the offence, or if the court
    itself is of the opinion that the person was a child
    on the date of commission of the offence, the said
    court shall make an inquiry, take such evidence
    as may be necessary (but not an affidavit) to
    determine the age of such person, and shall record
    a finding on the matter, stating the age of the
    person as nearly as may be:

    Provided that such a claim may be raised
    before any court and it shall be recognised at any
    stage, even after final disposal of the case, and
    such a claim shall be determined in accordance
    with the provisions contained in this Act and the
    rules made thereunder even if the person has

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    ceased to be a child on or before the date of
    commencement of this Act.

    (3) If the court finds that a person has committed
    an offence and was a child on the date of
    commission of such offence, it shall forward the
    child to the Board for passing appropriate orders
    and the sentence, if any, passed by the court shall
    be deemed to have no effect.

    (4) In case a person under this section is required
    to be kept in protective custody, while the person’s
    claim of being a child is being inquired into, such
    person may be placed, in the intervening period in
    a place of safety.

    9. The learned AGA, has also referred the

    provision of Section 19 of Act, 2015, which is

    abstracted hereunder for ready reference.

    “19. Powers of Children’s Court :- (1) After the
    receipt of preliminary assessment from the Board
    under section 15, the Children´s Court may decide
    that– (i) there is a need for trial of the child as an
    adult as per the provisions of the Code of Criminal
    Procedure
    , 1973 and pass appropriate orders after
    trial subject to the provisions of this section and
    section 21, considering the special needs of the
    child, the tenets of fair trial and maintaining a
    child friendly atmosphere; (ii) there is no need for
    trial of the child as an adult and may conduct an
    inquiry as a Board and pass appropriate orders in
    accordance with the provisions of section 18.

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    (2) The Children’s Court shall ensure that the final
    order, with regard to a child in conflict with law,
    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.

    (3) 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 twenty-

    one years and thereafter, the person shall be
    transferred to a jail: Provided that the reformative
    services including educational services, skill
    development, alternative therapy such as
    counselling, behaviour modification therapy, and
    psychiatric support shall be provided to the child
    during the period of his stay in the place of safety.
    (4) The Children’s Court shall ensure that there is
    a periodic follow up report every year by the
    probation officer or the District Child Protection
    Unit or a social worker, as required, to evaluate
    the progress of the child in the place of safety and
    to ensure that there is no ill-treatment to the child
    in any form.

    (5) The reports under sub-section (4) shall be
    forwarded to the Children´s Court for record and
    follow up, as may be required.”

    10. Placing reliance upon the aforesaid

    provisions of Section 9 (3) as well as Section 19 of the

    said Act, 2025, the learned AGA very fairly submits,

    that if a court finds that a person has committed an

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    offence and was a child in conflict with law on the date

    of commission of such offence, it shall forward the child

    in conflict with law to the Board for passing appropriate

    orders and after the receipt of preliminary assessment

    of the court under Section 15, the Children’s Court may

    decide that there is need for trial of child as adult as

    per the provisions of the Cr.P.C. and pass appropriate

    orders.

    11. Learned AGA would further submit that the

    provisions of Section 15 and Section 18(3) of the Act,

    2015 relating to preliminary assessment, were enforced

    with effect from 15th of January, 2016 and will have no

    applicability to the offence which is allegedly committed

    on 23.11.2011. There is no corresponding section of

    section 15 and 18(3) in the former Act of 2000, i.e. the

    Juvenile Justice (Care and Protection of Children) Act,

    2000 and that there is no provision for retrospective

    applicability of the Juvenile Justice Act, 2015.

    12. After hearing the learned counsel for the

    parties at length and after going through the record, it

    is clear from a bare perusal of the impugned order

    dated 06.05.2024 that the learned Additional Sessions

    Judge, Khatima, though having noted that all the three

    applicants have raised the plea of juvenility and had

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    sought reference to the Board were found to be below

    18 years of age, however, and only since the applicants

    were found to be above 16 years of age, the learned

    Additional Sessions Judge declined to separate their file

    and refer the same to the Juvenile Justice Board.

    13. On one hand, the learned counsel for the

    applicants would submit that in view of the provisions

    of Section 2(13) of the Act, 2015, the applicants were

    child in conflict with law, and thus, as per provisions of

    Section 9(2) and (3) read with Section 19, the trial court

    was under an obligation to refer them to the Juvenile

    Justice Board after separating their files, particularly in

    view of the judgment of the Hon’ble Supreme Court in

    the case of Thirumoorthy (Supra) and particularly

    paragraph numbers 30 and 31 thereof.

    14. On the other hand, the learned AGA, though

    not strictly opposing the said submissions on behalf of

    the applicants per se, but his only objection would be

    that the Juvenile Justice Act, 2015 does not have a

    retrospective effect and therefore, it is doubtful whether

    the applicants could have been declared juvenile.

    15. After hearing the rival submissions of learned

    counsel for the parties and after going through the

    record, it is clear that provisions of Section 9(3) of the

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    Juvenile Justice Act, 2015 make it clear that if the

    court finds that a person has committed an offence and

    was a child in conflict with law on the date of

    commission of such offence, it shall forward the child to

    the Board for passing appropriate orders.

    16. Thus, once the learned Additional Sessions

    Judge had recorded the finding that the applicants

    were child in conflict with law, i.e. they were above 16

    years and below 18 years of age, it could not have

    declined to refer them to the Juvenile Justice Board.

    17. So far as the plea of the learned AGA is

    concerned that the Act does not have a retrospective

    effect. It is clear from the impugned order dated

    06.05.2024 that the learned Additional Sessions Judge

    has himself relied upon the provisions of Section 15(1)

    of the Juvenile Justice Act, 2015 and the provisions of

    Section 18(1) of the Juvenile Justice Act, 2015 and has

    recorded the reasons that the offences committed by

    the applicants and Kumari Jyoti, were serious offences

    and since the applicants were above 16 years of age,

    they had the ability to understand the nature and

    consequences of the offence and the circumstances in

    which they allegedly committed the offence, and

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    therefore, it would be as per law to try them as adult by

    the said court.

    18. The provisions of Section 9(3) of the Juvenile

    Justice Act, 2015 are mandatory in nature, and there is

    a mandate that once the court finds that a person has

    committed an offence and was a child in conflict with

    law on the date of commission of such offence, it shall

    forward such a child to the Board for passing

    appropriate orders. The Court finds that pari-materia

    provision is there under provisions of Section 7-A(2) of

    the Juvenile Justice (Care and Protection of Children)

    Act, 2000 containing similar mandate.

    19. Hence, the said provision would oust the

    jurisdiction of the learned Additional Sessions Judge

    before whom the trial was pending, and the order dated

    06.05.2024 was thus absolutely without jurisdiction

    after making assessment of the applicants as juvenile

    but declining to separate the file of the applicants from

    the others and refer it to the Juvenile Justice Board.

    20. Hence, this Court finds substance in the

    submissions made on behalf of the learned counsel for

    the applicants, and in view of the aforesaid facts and

    circumstances and the position of law as enunciated by

    the Hon’ble Supreme Court in the case of

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    Thirumoorthy
    (Supra) and the provisions of Section

    9(3) read with Section 2(13) of the Juvenile Justice Act,

    2015, the impugned order is unsustainable and

    deserves to be quashed.

    21. Thus, the present Criminal Miscellaneous

    Application under Section 482 Cr.P.C. is allowed. The

    impugned order dated 06.05.2024 passed by the

    learned Additional Sessions Judge, Khatima, District

    Udham Singh Nagar in Sessions Trial No.65 of 2012,

    arising out FIR No.254 of 2011, ‘State vs. Prabhunath

    & Others under Sections 304, 302 & 201 of IPC, Police

    Station Khatima, District Udham Singh Nagar is hereby

    quashed, and the file of the applicants shall also be

    separated and sent to the Juvenile Justice Board for

    further proceedings.

    (Siddhartha Sah, J.)
    10.07.2026
    JKJ/

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