Trial Of Offences Against Children And Violation Of Child Rights-Thresiamma Varkey’s Case Creates A Catch-22 Situation

This is a short write up on Thresiamma Varkey vs. State of Kerala[1], wherein a Single Bench of the High Court of Kerala issued directions to the subordinate courts in the matter of trial of offences before the Children’s Court. It seems the Court has interpreted the section 86 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (the New Act) mistakenly. The question directly came before the Court was whether the Children’s Court can try an offence under section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the Old Act), for which punishment for three years was provided. Dealing with the issue, the High Court held that the forum for the trial of offences against children shall be decided as provided under Section 86 of the New Act, irrespective of whether the offence was committed prior to the enactment of the New Act or not.

In the above decision, apart from the decision on the issue, the Court also formulated some directions to the subordinate courts, inter alia, directed that “no case against the children or violation of child rights, shall be committed to the Sessions Court for being tried before the Children's Court unless at least one of the offences for which the accused is being tried is punishable with imprisonment of more than seven years.” It seems this direction sans legality and out of context. The theme of the issue did not demand it. The jurisdiction of Children’s Court is fixed by Section 25 of the Commissions for Protection of Child Rights Act, 2005 (for short 'the Child Rights Act'). Section 25 says:

“For the purpose of providing speedy trial of offences against children or of violation of child rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify at least a court in the State or specify, for each district, a Court of Session to be a Children's Court to try the said offences:”

Section 86 of the New Act fixes the venue of trial of different types of offences committed by the ‘child in conflict with law’. It has nothing to do with the offences committed against the child or in violation of child rights. It is completely a different area. In order to speed up the trial of cases where child rights are violated and offences against the children are committed the Children’s Courts are formed. It is the right of the victim to get a speedy trial. The Legislature considers it necessary that such cases are to be tried by a higher forum i.e. by the court having the status of a Sessions Court, irrespective of the quantum of the punishment. The only criterion is whether there was violation of child rights or was it committed against children. A blanket moratorium on trial of offences for which punishment prescribed of or less than seven years cannot be there. Moreover the establishment of this Court is by the State Government with the concurrence of the Chief Justice. A Single Bench of the High Court cannot, I humbly opine, curtail the jurisdiction of that Court. So, the direction that no case against the children or violation of child rights shall be committed to the Sessions Court for being tried before the Children's Court unless at least one of the offences for which the accused is being tried is punishable with imprisonment of more than seven years, appears to be against the legislative intention.

Though section 25 of the Child Rights Act provides for the trial of cases by the Children’s Court, where offences against the children or violation of child rights are involved, the method to identify such cases is not prescribed. At times, it is to be provided by interpretation by the Constitutional Courts. In the above context it is useful to read the decision rendered by the Division Bench of the High Court of Madhya Pradesh in In Reference: Received from: Presiding Officer, Children's Court & Sessions Judge, East-Nimar Khandwa (M.P.) vs. Vinod[2], wherein the scope and purpose of the Children’s Court were considered. The Court has given an elaborate, pithy and a praiseworthy decision on this case of reference. The question referred, among other things, was whether each and every offence irrespective of its gravity and nature in which a child happens to be a complainant or victim either alone or with other persons who are not child has to be tried exclusively by the Children's Court, which is a Court of Sessions. The Court, after having discussed the various seminal provisions and sentinel purposes of the Child Rights Act, held, among other things, as follows:

“(2) Each and every offence in which a child happens to be a complainant or victim shall not necessarily be deemed to be an offence triable under the Act unless in respect of it a proceeding for prosecution has been initiated by concerned Government or authority on the recommendation of Commission constituted under the Act. In respect of the prosecution initiated by the complainant or police in the absence of there being recommendation from the Commission, ordinary procedure provided under the Code of Criminal Procedure has to be followed. Even if the complainant or a victim is a child alone or there are other persons who are not child, the case has to be tried exclusively by the Children's Court constituted under section 25 of the Act, if prosecution has been recommended by the Commission.

(4) Only those kind of cases in respect of which the Commission finds "violation of child rights of a serious nature" or "contravention of provision of any law for the time being in force" and recommends to the concerned Government or authority for initiation of the proceedings for prosecution, shall be deemed to be cognizable and triable by the specified Children's Court constituted under section 25 of the Act. In all other cases, ordinary procedure provided in the Code of Criminal Procedure shall be followed.”

The decision by the High Court of MP in the above reference case is an authoritative decision on the real issue.  

The subordinate courts can desist from following the decision given per in curium, but when it is given in the nature of directions to the subordinate courts, it will create impasse. As the decision in Thresiamma Varkey (supra) tends to defeat the very purpose of section 25 of the Child Rights Act, it is desirable to take a suo motu revision by a larger Bench of the High Court of Kerala to rectify the error, it is humbly submitted.

[1] Crl. M.C. No. 6156 of 2016

[2] 2012(4)MPHT 492, 2013(II) MPJR 193

 S. Abdul Khader Kunju is  an Asst. Public Prosecutor at  Cherthala.