The Kerala High Court has held that a child charged with the offences under the Protection of Children from Sexual Offences (POCSO) Act, 2012, is to be prosecuted as per the provisions of the Juvenile Justice (Care and Protection of Children) (JJ) Act.
Justice P.G. Ajithkumar made the observation while disposing of a petition filed by a 13-year-old boy seeking to quash the case registered against him under the POCSO Act and various sections of the Indian Penal Code (IPC). The prosecution case is that the petitioner had sexually assaulted another boy. Counsel for petitioner submitted that prosecution of a child for an offence under the POCSO Act or sexual offences under the IPC was not possible as much as the offender, being a child, could not be attributed with the criminal intent. Therefore, the investigation against the petitioner was illegal
The court observed that ‘Child’ was not defined in the POCSO Act whereas it is defined in the JJ Act, 2015. Section 2(12) of the JJ Act, defined a child to be a person who has not completed 18 years of age.
The court added that “aforementioned definitions would ensure an inference that a child can be an offender of sexual offences as defined in the POCSO Act. Needless to say, when a child is the offender, he cannot be tried in the ordinary criminal court, but can be dealt with only as provided under the provisions of the JJ Act”.
The court further observed if the offender is a child in conflict with law, whether for the offences under the POCSO Act or under any other statute, shall be inquired into only by a Juvenile Justice Board. In the event of filing a final report by the investigating agency, after due investigation with a finding that the petitioner has committed the offence, the board is obliged to inquire as provided under the JJ Act.
The court directed that the investigation against the petitioner be completed in two months.
