Chandigarh/Gurugram: The Punjab and Haryana High Court on October 30 dismissed a petition filed by the Central Bureau of Investigation (CBI) in 2018 seeking to transfer the trial of the juvenile accused in the 2017 murder of a seven-year-old Class II student inside a Gurugram school out of the Additional Sessions Judge-cum-Children's Court at Gurugram. The CBI had sought transfer to the Court of the Special Judge, CBI, at Panchkula or, in the alternative, to a Children's Court at Panchkula.

Justice Manisha Batra held that when a child in conflict with law is directed to be tried as an adult, the trial must be held by the Children's Court under Section 18(3) read with Section 1(4) of the Juvenile Justice (Care and Protection of Children) Act, 2015, and that this requirement cannot be bypassed merely because the CBI investigated the case. “The trial of respondent No. 2, who has been directed to be tried as an adult, is to be held by the Children's Court having jurisdiction under Section 18(3) read with Section 1(4) of the JJ Act. This requirement is a sine qua non, and the power of transfer under Section 407 Cr.P.C. cannot be used to take the trial to a Court of a different character,” the Court held.

Why the CBI court cannot hear this trial

The Court examined the Haryana government notification of February 8, 2012 on which the CBI relied and found it was issued under Section 3(1) of the Prevention of Corruption Act, 1988 — it appoints the CBI Court at Panchkula as Special Judge only for Prevention of Corruption Act offences and connected attempts, conspiracies or abetments. The juvenile accused is charged only under Section 302 of the Indian Penal Code, so that notification does not cover this trial. The September 2017 notifications under the Delhi Special Police Establishment Act only extended the CBI's power to investigate and said nothing about the forum of trial, the Court held, adding that although the CBI steps into the shoes of the state police as the investigating and prosecuting agency, the forum of trial does not change on that account.

On the alternative prayer for a transfer to a Children's Court at Panchkula, the Court found no ground made out: “No material has been placed before this Court to show that a fair and impartial trial cannot be had at Gurugram. There is no allegation of bias against the trial Court, nor is it alleged that the State machinery is acting in collusion with the accused.” It also noted that Section 23 of the JJ Act bars joint proceedings of a child with a person who is not a child, so the juvenile's trial and the connected adult case pending at Panchkula must in any case run separately.

Trial to be concluded within six months

Noting that the occurrence is of 2017 and that the trial at Gurugram has already progressed for several years without the CBI seeking a stay, the Court said a transfer at this stage would only delay the trial further and would not serve the family of the deceased. The Children's Court at Gurugram was directed to make every endeavour to conclude the trial within six months, subject to cooperation by the parties; the CBI was directed to ensure the presence of its witnesses on the dates fixed, and the trial court may record the evidence of official and outstation witnesses through video conferencing under the applicable rules.

The case dates back to September 8, 2017, when the Class II student was found murdered in a ground-floor washroom of his school in Gurugram and FIR No. 250 was registered the same day under Section 302 IPC and provisions of the Arms Act. The investigation was transferred to the CBI later that month; a school bus conductor arrested on the first day was later discharged, and the CBI apprehended the juvenile accused — a senior student of the same school who was below 18 at the time — in November 2017 and filed its charge sheet against him before the Children's Court at Gurugram. His preliminary assessment under the JJ Act was litigated up to the Supreme Court, which in 2022 upheld a remand for fresh assessment; on reassessment the Juvenile Justice Board again directed that he be tried as an adult, and the High Court dismissed his challenge to that direction in 2023. The accused is not being named because he was a minor at the time of the alleged offence.

Source: LiveLaw