Prosecutor High Court · 2025

Section 363 of II'(l rnd issued a FIR.

3. On 5.7.2O1i', t was found that the CCTV r:arriera near Badi Masjid, Barkas lLrrcl recorded visuals of the missirLg boy on i 2 2a.6.2O17 in the comp€rny of one person, later identified as the appellant herein. Inquiries revealed that ttre appellalt was a minor at the time. Subsequenfly, on 6.7.201'7, PWI2 and other police personnel went to the appellant's residence and found that he was 17 years old. The appellant was then taken to the police station, accompanied by his father, and was produced before PW13.

4. PW13 interrogated the appellant, showing him the CCTV footage that depicted the missing boy in his company. Upon questioning, the appeilant allegedly confessed to kidnapping PWl's son (deceased), committing unnatural intercourse with the deceased on the terrace of Government High School, Barkas, ald then killing him by twisting and binding his hands and legs with a cloth before throwing the dead body to the side of the terrace. At the appellant's instance, the dead body of the deceased was recovered and identihed bY PW1.

5. Since a prima facie case was made out against the appellalt, the Section of law was altered from Section 363 of IPC to Sections 364, 377 , 3O2, and 2Ol of IPC, along with Sections 5(m) read with 6 '-=*.i'*r*+ of the POCSC) A<:t.. '2012- Thereafter, the appellant u'ers produced before the Probirlio:-r ofhcer as per the Juvenile Jr-rstice l\ct.

6. Initia,lly. tht: case was registered under Siections; 364' 377 ' 3o2,alrLd2o1c-ftrCandSections3readwith4ofth.ePoCSoACt before the Juvenil,: Justice Board, as the appellant vras :lassihed as a child in conf':i:t with the law, Subsequently, after ar;sessing the appellant, tht: -Itrrenile Justice Board tralsferred rhe case to the children,s cou:-t (l)ourt of I Additional Metropoli:al Sr:srsions Judge Cum Special JrrrlgS: lor Trial of Cases under the PO(ISC' Act,2Ol2)' deeming it fit ',r be tried by the Children's Cotrrl.' The Board concluded that the appellant should be tried as an adult' Thereafter, the zDprellant was produced before th.e Chilclren's court, which, upon 1lrt: rssessment, determined that the appt'1lant should be tried as l1r a rlult, as specihed under Section i! (1)(i) of the Juvenile Jus.,it:t' (lare and Protection of Children) Ac', 2015' The Court took c('gnizance of the case against the appeilanr and framed charges und€r Si:ction 6 of the POCSO Act a]1d Se<;tio:.rs 364,377, 302, and 2Ol r I t)1. 4 if\

7. Learned sessions Judge found the death of the deceased to be homicidal, based on the Post-Mortem Examination {pME) and Inquest Reports. Relying on circumstantial evidence, including the identifrcation of the appellant by PWs 1 to 4 (his neighbors), the discovery of the deceased's body at the instance of the appellant, Ex.P1O/DNA report conhrming that the deceased was the son of PW2 (mother of the deceased), the CCTV footage filed in CD-Expl1, which showed the deceased last seen in the appellant's company, and the medical evidence supporting the prosecution's case, the Court concluded that the appellant had performed unnatural intercourse with the deceased. This was corroborated by Injury No. 4 in the PME report. Furthermore, the murder was established through injuries found in the PME report-Injuries 1 to 3-caused by a head injury inflicted with MOl/Iron water pipe (which was seized from the scene of the offence). Based on this evidence, the appellant was found guilty.

8. Sri Mohd.Azhar, learrted counsel for the appeilant would submit as follows:

1. Violation of Section 15 of the Juvenile Justice Act: The prelimina4r assessment was not conducted in compliance with r / 5 the marrdr-rry lbur criteria established in lJant.n Chandra TLnkur u. U,loste-r Bhalu. Section 15 requires ar as:;essment of the juve.eik:'s; mental and physical capaciby, hir; ability to understan(1 txe consequences arld circtLmstanr:es of the alleged 01T<11136, and whether he should be tried as arr adult. It was arguerl ttat the Board failed to condu<:t 1.his ilssessment properly, nutk-tng its order mechanical.

2. Violation. ref, Section 19 of the Juvenile Justi.ce ,Act: As per the Suprerrr: Court's judgment in Ajeet ()urr'ar u. State of Madhga Prc,,le sh, after receiving the prelinrinary .rssessment from tht, .-irtard, the Children's Court mrrst apply its independr:nt judicia,l mind to determine whr::her the child should b,: tri:d as an adult. The said reqrireme tt was not met.

3. Learned c'ounsel further submits that even i.he circ,umstances did not nra-kr: cut a complete chain to determine r.hat it was the appella,rt ,r'ho had committed crime. The allt:gec1 complaint was lrled on 29.06.2077 and the appellant w€rs errested on O5.O7.2017. tven the CCTV footage only sh,cws th,: appellant and the b o.'r towever, does not show that the lpp,_-11ant took the decear;ed Jrhysically by force. On the ot;r--r hald, Sri Arun Kumar Dc,d1a. llre learned 9 Additional Spe<:iirl llrblic Prosecutor would submit tl.r at ttre learned Sessions Judg':, J-ra.ving considered the preliminary assessment 6 . made by the Board under section 15 of the Juven,e Justice Act, has gone through the report and after being satisfied that the appellant needs to be tried as an adult, the tnar was undertaken. No prejudice is caused to the appelant since the enqulry was conducted in accordance with Sections 15 and 19 of the Juven,e Justice Act.

10. It is not in dispute that the appellant was a child in conflict with the law at the time of the commission of the offence. 1 1. After the enactment of the Juvenile Justice (Care ald Protection of Children) Act, 2Ol5 ("the Act"), a further category was introduced for juveniles between the ages of 16 and 1g years involved in heinous offences. They are subjected to a preliminar5r assessment to determine whether they should be tried as a child by ttre Board or as an adult by the children's court. If the Board is of the opinion that the juvenile should not be tried as an adult, the Board will continue with the trial as envisnged under the Act. The requirement of conducting a preliminaqr assessment has been specifred in Section 15 of the Act. 1

12.AsperSt:ctio:15oftheAct'whenthezr'lleSierloffencers heinous ald tlre ':hiid has completed or is above ihe age of 16 years, the Boa:c is required to conduct a preliminary zrssessment regarding his rrre r-rta-l and physical capacit5r to cornmjt such an offence, his abil:tr to understand the consequenoes of the offence' and the circuntstilrL':es in which he al1eged1y comrnitted .he offence' After such assessment, the Board must pass an order in accordance wi'h ;rrll section (3) of Section 18 If the Boer.rd is of the opinion that the :'hild needs to be tried as an adult' tht case must be transferrei to the Children's Court having jurisdir:tion to try suchanoffen:e..()lherwise,theBoarditselfwillprc'ceectotrythe matter as a sun[lr]ns case under the Cr'P'C' 13. As per Sltr:tion 19(1), upon receipt o the preiiminary assessment lrorrL the Board' the Children's Cotlrt will decide whether therr: rrr z' need for the trial of the ch'iid as an adult in accordancewitetheCr.P.C,andpassappropria.'eorde:'.saftertrial, subject to ttLe 1; r lvisions of Section 19 as u'e1l as Section 2 1 ' However, untler S;r:ction 19 (lxii) if the Children's (lourt finds that there is no nt:eC t'lr the child to be tried as an aclult' it rnay conduct 8 an inquiry as a Board, ald pass appropriate orders, in accordance with the provisions of Section 18.

74. The preliminary assessment required under Section 15 of the Act is significalt, and cannot be considered a mere formality due to the consequences attached to it. ln Barun Chand ra Thakur v. Bholur, the effect of al order of preliminary assessment was explained by the Honble Supreme Court. At paragraphs 4T and 48, it was held as follows: '47. The order of preliminary assessment decides uhether tte child in conJlict u-tith law, falling in the age bracket of 16 18 Aears and hauing committed heinous offence, is to be tied as an adult by tle Children,s Court or by tlte Board itseLf, treating him to be a child_. There are tu_n major consequences prouided in the 2015 Act, if the child is tied as an adult bg the Children's Court. First, that the sentence or tLe punishment can go up to life impisonment if the child is tied as an adult bg the Children's Court, tahereas if the child is tied. bg the Board as a child, the moximum sentence that can be au-tarded is 3 gears. The second major consequence is that u.there the chjld is tied as a child bg the Board, then under Section 24(1), he uould not suffer ang disquaLiftcation attached to th,e conuiction of art offence, utrereas the said remoual of dbqualification u.tould not be auailable to a child uLn is tied as an adult by the Children's Court, as per the prouiso to Section 24(1). Another consequence, uthich may also Ltaue seious reperansslons, is that as per Section 24(2), tuhere the Board or the Children's Court, ofrer the case is ouer, mag direct the police or the registry that releuant records of such conuiction may be destroged after tlrc peiod of expiry of appeal or a reasonable peiod as mag be prescribed. Whereas, tulren a chjld is tied as an adul| the releuant records sholl be retained. bg tte releuant Court, as per the prouiso to Section 24(2). 48. These consequences are seious in noture and haue d lasting effeA for the entire life of the child. It is uelL settled that anA ord.er that has seious ciuil consequences, reasonabLe opporhtnitA must be afforded. The question is of whnt utould be a reasonable opportunitg in a ctzse uh,ere a preliminary assessmen, is to be made bg the Board under Section 15." ,(2023) 12 SCC 401 9

15. ConsiderirLg lh: impact that the resuit of the preliminary assessment by tlrr: Iloard can have on a child in colrflict with the law, if the Boa'l'cl 'jr:':ides that they are to be tried as an adult, the determination ol. ruhether the assessment was thororrghly and correctly condu c--e''l lecomes essential'

16. The Supre:rr: Court, it Bantl;n Chandra ThaktLtr (Supra)' examined the Pror:t:r:dings arising from the prelirrLinary itssessment madeunderSr:clior.r15oftheJuvenileJustice(c;areanclProtectron of Children) A':t, 12(115. The preliminary assessm.ent corrducted bY the Board uncler S,r:ction 15 of the Act, which conclud::d that the respondent shor-L.rl be tried as an adult' was under cor rsideration' The relevant p era51:'lphs a-re extracted below: '64. The obligotio t 1' tke Board in making the preliminary arises: mtt t on the four counts t.t;trttott'zd i" i"io" ls oitne eit k l"'!::a^,1"-p^":'.'t',: :!::',lt 'tuisdom of the Board tuithout there being ang gutdehn€s as [t) 'tow tIIe Board uoitct <x n ch r',t such preliminary ossessmenl' 67. White con: itl'' tng a child as an adult one need s to look ut his/ her "inati.i- cor'tpr: :ncies lt mustbemtln.il>.t=Tne,ethatfromaneurobio-logicolperspactiue,.t,he ';;;;;;"'"', ;i ,,1,'('nitiue, aiii'io"'"t attibutes tike th<z ab titu to detoa t, , sion making, risk-taking' imputsiuitg' iu' lgm' nt lt''. ))iriiio,io", t,'.ias zoi" tt is' therefore' att the mttc it'l.,or.ant thot ";;','i;;;;;;',ri, such a-ssessrnt n t rs made to irstinguistt sich attributes betuee n tt ':hild and on aduLt. 68. Cognitiu,t ntltlffation is highly d'epe1dent...on Lt'zredttartl factors' -a^oioi"l d<'rtclo':nrent is less tik;lA 10 offbct cognitiue maturat'or' i{otueuer' ^iu it t.,, t:ignitiue abilities, sociol and -e.motional i I 10 if emotions are too intense and tlrc child is unable to regulate emotions effectiuelg, then intellectual insight/ knoutedge mag take a back seat. 7O. -The language used in Section 15 is "the abititg to und.erstand the con-seEl.ences of the offence". The expression used is in pluralitg i.e. "consequences" of the offence and, therefore, uould not just bZ confied to the immediate d)nsequence of the offence or that the ocanrence of the olfence uouW onlg hnue its consequence upon the uictim but it u.nuli also take u.tithin its ambit tLrc consequences uhich mag fall upon not only the uidim as a result of the assault, but qlso on tLrc familg o1 ihe uictim, i child, his familg, and thnt too not onlg immediate consequences but also the far reaching consequences in future. Consequent:es could be in mateial/ phgsical fonn but also affecting the mind and the psgchologg of the child for all times to come. The consequences of the ollenie couta nL numerous and manifold tohich atnnot be just linked to a frameuork; and., for this purpose, th,e ouerall picture as also fufitre consequences utith reference to the facts of the case ctre required to be consciouslg analysed by tLe Board.

71. Conseqtences for the uictim could be his death, or pennanent phgsical disabilitg, or an injury u.thich <nuld be repaired or recoiered.; the impLct of thg gffence on the mind of the uictim mag be prolonged and <nntinue for hi hfetime; the impact on the familg and fiends of the uictim, both menial and financial; consequence on the child going into incarceration; mentol impact on the child, it could be repentance or remorse for tife, the sociat stigma-cost on ttrc child and his familg members; the consequences of litigatiig and so manA other things uLhich uould be difficult to odumbrate. _A child uith auerage intelligence/ Ie wttl hnue the intellectual knotuled.ge 72-. of the @n-sequences of his actions. But whetlrcr or not he is able to rnntioL himself or his actions uill depend on his leuel of emotional competence. For example, iskg diuing msA result in an acciclent- But if emotional competence is not higlt, the urge for thill seeking maA get tlrc better of his intellectu al understonding.

74. Coming to tle last count i.e. the ctssessment regarding te ciranmstances in uthich the offence is alleged to be committed. is agiin an attribute u.hich auld haue mang foctors to be considered before iuch an assessmen, could be made- There could be <t number of reasons for a person to commit a cime. It could be enmitu, it could be pouertg, it could be greed, it could be peruersitg in mind and mang others. Tltere could. be coercion. Th.ere could be threat to orue's life and propertA. Tlnere could. be allurement in term.s of the material and phgsical gains. Cime <nuld be committed on account ojf sfress or depression also- It could be on acaunt of the camponA that one keeps. One could commit cime in ord.er to hetp hiZ familg and fiends. All these and mang more could be termed. as cira)mstances leading to the commission of cime. Prouiso to Section 15(1)directory or mandatorA - 11 l, ",rr',; ti^ii and :lr-'11 psychologg is a subject tuhich is -being

77. The worl'7 t':knouledges that children in conJlict utth tat should be 'tr"oi"i iil.r."tlt' tilon aiults in anJlict tuit.h lana' .The nu a-so't i's lhot the minrl of the clli:d h.as not attainei matuitg and it is sti? deteloptng' 'iilii"ijr"'.' ,* ,'h:1" ;;oud be tested. on d_ifferent parame,ters ctitd s,.tou\d be ,i oi i.i"s brougttt iiio the mainstreom ir' ':hins his ;:;;7;';;;,r',il iuuenilitu, ha s .zr'; < t I in conJlila u''iti lau' To understand y;sgc'toltt9r11 of the tJnia','iii" r / studiJ's haue been made not onlg recetnthl but 'liom ag-e- sturlit d tuorld- ouer and thetct tt i: ilstrtutes iiectfca g ieating tt-tith the cleue'loprn' tnts and ",ti ,i""or"n on ',e said subjeci rie eiactments dealing tuitl't' cL'iklren are enocted tuorl'7 ot <'r . 83. Thereforc, lc(l:tng to the purpose of the-2olS.Act c:nd its le'gislatiue interest oJ' llte c hild' the intent, pirtic tl,tt ['J io ensure the protection of -"iprJti,ion "rnog" ',r the prouiso to Section 15(1)thereof ond tLLe reqiirement as.'isr-",,r,r, of ixpeienced psyclntogists or psgcho-s':tcittl w,or.kers- aZ mondatory unless tlTe tsoc rd itsef "ir"n"g i, iti"i exl,e,t:, r',,oi[d "o^pn "" d at lzt.st one member ttho is o practising professioru'[ tuith o i. ciild p:,1r,,hology or chitd psgchiatry' Moreo-uer' tn cose tt e Board' iii.. o,)r' ., r^pi:ition ruith-atleast one member' utho is c F ractising i^"r,i"- "1ut p'rokssiinaf ut|th t cligree in child psgchologg o.r-child p:;ychiatty' chooses 'noi to tok" -srrc,z c1..,: istance, it tuoutd ricord speciftc reason.s therefo-." -operate -best lT.TheHorfrl,-'liupremeCourt,intheabovrlctrsc'extensively explained the inrprlrtance of the preliminary assessm(rnt and the factors that rnust be considered by the Boarcl during its assessment. It i s; a delicate task requiring exp'-'p1i1;e and has signihcant inrlrlica-tions for the trial of the casie Due to its importance, th: ilon'ble Supreme Court, in the abov:: judgment' a-lso directed tlre (lentral Government, the National Cornmission for ProtectionofCjrilrlRights,andthestateComrhissic,nfrlrProtection of child Rig hr s t o consider issuing guideliners or ( lirections to formulate a f rzrrr,r:'"r'ork that may assist and facilitate' .'he Board in 12 conducting the preliminary assessment under Section 15 of the 2015 Act.

18. In light of the Supreme Court,s directions in the above case, the Nationar commission for protection of child Rights has developed guidelines outlining key procedures that enable ttre Juvenile Justice Board to conduct preliminary assessments in accordance with the guiding principles.

19. The guidelines issued by the National Commission speci$r the determinants of a preliminaqr assessment. These are extracted below: preliminary o""..".rrrr Lnsio be-iaoied out in t, " 2.4 Determinanfs of a preliminary assessmenl_ Luttt':u out tn terrns of the follou,,ing four determinants- i;"!lliii!r,l,,,i"iTt o"{, ::,--* i Id to. com m it a t r esed offe n ce Chit d,s parlicalarlg utith iegard ro gross moror functions t""in'-"J'ri"iifaattes' 1ou,labe,*q,i,i;";ix;,J?,ll;,,,{;if":"#f :1i,,;:*"zry:,*iii children come into conltiit tuith ,n" i"i. 'ii.'i*pili,,"ho1 ,ot detue into assesslzs the phvsical "s::!_:h" "t;td';; 7i*' ,r the preriminary as^s€ssmenf. The age detirmnarrcn is concluded betc tre lhe initiation of preliminary assessienl bu tht, . t uz nh) tL^--r :, .the process at tni"" stage. ih; ,i," Zfli.";|Xi expetts shatt not repeat assesslng physicat .roo.it,,-iiin-";,,':':^o!-Ine.:^Ferls u.tith regard o child to iommit the o eged olfence is o.ntg limited ro assessino !^:f^'!: Lne aspects as houe been menfi\ned it",i. ii tigit of n jn)ii"i' '':tues thot mag be required * **g-Zii" ri,) offence. "ooo '; #7 ::L';';:l!, :{ : T,!'!1,i: :: m i t a t t e s e d orre n c e C h i t d's o b i t i t s r o tu n ct i o n i n s a bi i;i;:, " ;; i:#:T ":,!ii Z,},8 ! i #, :tr! ::: Z,[: iX! i4 !"{ ptace tn rhts, reportins .i tn" Jiic "",iJi";:;;;;;r" woutd. ctrau.t on 13 all tlle ua1( Ll't; in the mentol heolth and psAchos ocLo .ls.;essmen[ including sur)sl.,r,ce ctbuse problems, life skills deftcit:;, negLect or poor superuisior 't1t fitmitg or poor role models; expeien:e af aLuse and trauma; m<'n al tu:altl't disorder or other (neuro) deuelopmental d sabilities srrch as att?r,ti'.t 7e.ficit hyperactiuitg disorder; intellectud di;abil'.ty. c. the circt n.rs,a n,res ln uhich the child allegedly comnitte,(l th.e offence' Psychosocitl r'.tbterobilities, including lik euents ond nrcnk,L health problem.s thct lx' chitd is alJlicted uith" i.e., factors relattng t'.t family, school, peer reltttion.ships, trauma and abuse, me!7tal healt\ and substance u;t'. t )lr(umstonces, therefore, do not reJbr nrcreltl to the immediate dr(:.Ltnstances of the offense itself, i.e., the last e''ent that occurred cuul le tt th.e child into conJlict Luith the lou. Itt fact, th.: offense behauior, in:[.tc.'itg its immediate circttmstonces, i.; a (ctt,nulatiue) consequen( e of ,t u)hole plethora of other ciratmstance s thatt htue been ocanrring o,te. ,=ttttluellJ long time periods of the child's iife (y;erfutps since early child'totd). Th.us, we toke a longitudinal (uersus a cross .-;ecttonal) perspectiue o,' (\r:tmstances of the offense. d. ctbilitu tc t nde,rstand the consequences of the offt'-n<'e- Child's knouledge, sn','1r'r understanding of social consequelces (utltat other people u.ill sttg c r hou they u.till perceiue the behouiour ond con:;equently u)hqt opinton sltetg tuould fonn about the child including lc teiltng and stigmatizat orr). r terpersonaL consequences (lnut the behauio tr might alfect pers<'nal tlttionships in terms of loss of trust, affect[cstt an I respect of familg a n Jii<,ttds) and legal consequences of tLwir actions (kr .otuledge of releuant lo us t,t sexLtal abuse/ rape/ robbery/ daaitg etc. and uiolation of ruLes l<,a,lir t to seious conseqtences for the child in ' erms of punishmen ).

2.5 Sittings fitr <:Lntducting preliminary assessmenl- The ,osgcho[o1.rists and other exper'.s rr tL:;i be giuen optimal opportunity to interacl tuit h tfu: child. It is important th)t ttppropiate time and space is giuen for bLL ldintt rapport tuith the chilc' itio' for carrying out the assessment bg admi.tting lhe child through in POII;t)t or out potient setting as deemed appropiute. ) Iotueuer, in case the erJrr lase is auailed from outside Distict, the ch;.ld snould be assessed tl t-ft u tl, in- patient IacilitA."

20. Further, un(13r Chapter 3 of the guidelines, wtLich defines the role of the JtLv,:.- il,l Justice Board and other expe:ts, Clause 3.1 mandates the t : c Board take the assistance of ps vchologists, psycho-social rv,:rllers, or other experts who have experience working with r:hi1r1 :,:n in difficult circumstances. ,rt r€ads, as follows: 1,4 " 3 . 2 In <:ase the Board does not haue qt least one member who is tt practicing professional with a degree in child psgclwlogg or child psAchiotry, the Board sholt toke ossisranc€ of psAchologists or psacho- soctal uorkers or other experts u.tho Ltaue expeieru;e of uorking ulith children in dilficult circumstances. In such cases the Board u.tould re<nrd speciftc reason(s) for tLrc same."

21. The judgment of the Hon'ble Supreme Court and the guidelines that were framed on the basis of the judgment were after the Juvenile Justice Board's assessment in the present case.

22. Sectionsl5, 18(3), and 19 of the Act are extracted below: " 15. Preliminary assessmenl into heinous offences bg Board.--(l) In case of a heinous offence alleged to Lnue been committed bg a child, tuho has completed or is aboue the age of sixteen Aears, the Board shall conduct a preliminary ossessment uith regard to his mental and phgsical capacitg to commit such offence, abilitg to understand the consequences of the offence and the circunlstdnces in uhich trc allegedly ammitted the ofJence, and maA pass an order in accordance uith the provisions of sub section (3) of Section 18: Prouided that for such an assessment, the Board maA tdke the assistonce of expeienced psychologists or psgcho social utorkers or other experts. Explanation--For the purposes of this section, it is claified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit ond understand the consequences of the alleged offence. (2) Where the Board i,s satisfied on preliminary assessmenl thdt the matter should be disposed of by the Board, then the Board shall follotu the procedure, as far as mag be, for tiot in summons case under the Ciminol Procedure Code, 1973: Prouided that the order of the Board to dispose of tLe mdtter shall be appealable under sub-section (2 ) of Section 1 O 1 : Prouided further that tLrc assessmenf under this section shall be <nmpleted uithin the peiod specified in Section 14." Section 18: Orders regarding child found to be in conflict tuith lano. (1) . (2)... 15 (3) Where lf,e 3)(,r'1 dfter prehmtnary ossessment under :;ecti(ti ll poss an 'oider that t\t rt ;s ct r--eed. -for tiot of the said child as an oittLt, then the Boctrcl manl o (1o lranskr of the tial of the case to tfut Ohilclre-L's Court hnuing juisdi l:o t to try such olfences " "19. Pouer.; o-,'' I htLcTren's Court. - (1) Afier the recelpt cf pr':liminory assessmenl f "crn lhe Board under section 15, the Children's C)urt maA decide thttt (i) there is t tt',:,l for tial of the child as an qdult as per th( p ro ' ti^sions of the Code qf r)nunu.l Procerlure, 1973 (2 of 197a) and pass irypropriate ord,ers after ti,tt :,ubject to the prouisions o/ tfus sectiot ond :;e ction 21, considerinq Ltrr ;peciol needs of the child, the tenets oJ -fatr lial and maintaining a cL i'tl Jiendlg atmosphere; (ii) there is nr 'rcecl for tial of the child as an adult an7 mc'.A cc'ttduct an inquiry as t Bct.rd and pass oppropiate orders in aa:ordan<::e Luith the prouisions cf' s,:'in 18. (2) . (s) (4) .. (s) 23 . As seen fr-o rt the provisions, there are safegua rds at two stages in the erlir( tment when the offence is allegerl to have been committed by a cl-ri d aged between 16 to 18 years t() be tried as an adult. Under lecl,ic,n 15, the Board has to mandat,lril" conduct a prelimina-ry iISS.':;rlment regarding the menl-al arr'i physical capability of thc ;t(cused to commit such an ofl'ence. I:'urther, the ability to unrlerstand the consequences of tht: olTen(le and the circumstances tlltclr)r which the alleged offence was comrnitted must also be cons:derc(i by the Board. On the basis of the said 76 prelimina-ry assessment, the Juvenile Justice Board can pass an order under Section 18(3) of the Act by trarrsferring the case for trial to the Children's Court having jurisdiction. In the hrst step, a preliminary assessment is required by the Board, and after tralsfer to the Children's Court, in the exercise of powers under Section 19, the Children's Court has to make an independent assessment whether to try the child as an adult. The Hon'ble Supreme Court, rn Ajeet Gurjar v. The State of Madhya Pradesh2, held that though the word 'may'is used in opening part of sub-section 1 of Section 19, the same has to be read as 'shall'. The Hon'ble Supreme Court, in Ajeet Gurl'ar's case (supra), held as follows: "7. Wat is required.to be done by the Juvenile Justice Board is holding an inquiry for making a preliminary assessment with regard to the mental and physical capacily of the juvenile in conJlict \utth ldv) to commit such olfence, ability to understand the consequences of the offence and circumstances in which the juvenile has allegedly committed the offence. Based on the preliminary assessment, sub-section (3) of Section l8 empowers the Juvenile Justice Board to pass an order for transferring the trial of the case to lhe Children's Court which has jurisdiction to try such olfences. Thus, the order of transfer is based on only a preliminaty assessmenL

9. There are two parts to sub-section (l) of Section 19. The firsl part requires the Children's Court to decide whether there is a need for trial of the child as an adult as per the provisions of the Criminal Procedure Code, 1973. If the Court is satisfied that the child needs to be tried as an adult as per lhe provisions of CrPC, the Children's Court can proceed with the trial 2023 LiveLaw (5C) 857 \7 and there,tliitt toss an appropriate order subjecl to Sections l') t'ntt 2I ol the JJ Act. the ptrcvisions of

10. Clause ut) (.f .tlh-section (l) of Section 19 is ''et). owial which indicates t\at ',1.tlqh the word "mav-" have been used in the 4ti:ning part of sub-secliott It c/ Section 19, the same will have to t'e reo{l cs "shall". Clau.se (ii) ptt., le.s that after examining whelher there i.s a '1eea /br a lrial of the chitrl tu ,tn ttdult, if the Children's Court comes to the ::ttttctusion that there is nr.t n,.td / tr tlrc trial of the child as an adult, instead,t/'.:'e,tding back the mattcr t. tL( Bo(trd, the Court itself is empowered tc conCucl an inquiry and pass .PPt'.,'1,1 i(tte orders in accordance with provisions tt/ Se tittn l8 of theJJAct.lht tial ,f a child os an adult and his trial as o jtn'enile by the Juvenile ,ltt.st it c Ltoard has different consequences lI. There.l'tr , .'tllding an inquiry in terms of clause (i) of nb-set tion (l) of Seclion 19 i; rtrtt an en.ply formality. The reason is thut t../ tl1e Children's Court coret to llrc conclusion that there is no need to try lh('rltild as an adult, he v,,il' ,,: cntitled lo be treated dilferently in the s'znse lhirt ttction can be taken d,l(1it ::l nitn only in terms of Section lB of the J..t'Act-

12.The ob,strvat'on of the High Court that the order pas;ecl imder sub- section (-l ol Sz.tion lE has attained finality completel,v- igrutr"s lhat the order unLl,r s tl:-;eclion (3) of Section l8 is not a final aditLdica'ion on the question ol'tn',.t'2,, the chitd as an adult. The reason is that the o'det under .sub-sectio,t '3) of Section 18 is based on a preliminar)' assessrtent made under Sec,ut,t I j A.s such order i.s based only on a prel.i.min,rn L's.\essment, the law ptotitle. l'or a further inquiry in terms of sub-.se'ctitttt (1.) of Section ('hildren's Court. Hence, the Chiltlren s (.'.lu'l cannot l9 by the ty n ])i€t1t brush asit.'t' tl t'. tequirement of holding an inquiry und?r clQuse /i) of sub- section ('l) ot .i'::'ion 19."

24. In the l)r3s( rrt case, the hnal report by lhe ,luv,:nile Justice Board containinll r-he findings of the preliminary' asrsessment of the appellant is e x'r a:ted below: "BCL protl,rc':ti .,).ont home. We have perused the Prelininary A\sessment Reports o/ ,9C t 5 iven by DPO, Member rtnd Prl- Magislrate ctnd lnve also penrsed tht ,'t .t'cltological Assessment Report of BCL receivtttl /iom the Superintena'et 1, (;overnment Hospital for Mental .r')are H tderabad. Considering t.tt enlire record and all the reports after stated, this Iioard is of - , 18 the considered view lhat the BCL was and he has been physically and mentally fit and has the capacity to commit the offences under Sections 364, 377, 302, and 201 of IPC and sections 3 r/w 4 ofPOCSO Act, 2012, that the BCL has the ability to understand the consequences of such offences and the circumstances in which lhe offence was committed reveal that the BCL was not under the inJluence of anyone before or while committing the offence and tfutt he has been alone all through the commission of the offence. This board has also found that the BCL ho-s not suffered from any psychological disturbance/ailment at any time or during the commission of the offence. Hence, this Board concludes that the BCL should be lried as an adult having regard to the gravity of the offences alleged against him. The offences under Sections 364, 377- and 302 of IPC and section j of POCSO Act are heinous offences as per 5.2(33) of JJ Act, 2015. The BCL is aged between l7-l\ years as per his age certificate given by Osmania General Hospital. Having regard to the findings of this Board on Preliminary Assessments ofBCL done as per Section l1(3) of the Act, this case is found to be rtt b be transferred to the Children's Court (IIon'ble I Addl. Metropolitan Session Judge, Nampally, Hyderabad) by invoking Section l8(3) ofJJ Act, 2015)' 25- Learned Sessions Judge, the basis of the preliminary enquiry, held as follows: "4. Ttte child in conJlict tDith ldLU uas produced before this Court and on due assessmenl of the child in conJlict with laut bg this court, this court come to a conclusion that he has to be tied as an adult as specified under Section 19(1)(t) of Juuenile Justice (Care and Protection of Children) Act, 2O15 uherein Section 19 of The Juuenile Justice (Care and Protection of Children) Act, 2015 speoks about Pou-ters of Children's Court: (1) Ajter the receipt of preliminary assessment from the Boord under Section 15, the Children's Court mag decide that: i. there is a need for tial of the child as an adult as per the prouisions of the Code of Criminal Procedure, 1973 (2 of 1974) and poss appropriote orders afier trial subject to the prouisions of this Section and Section 21, consideing the special needs of the child, ttte tenets of fair tial ond maintaining a child friendlg atmosphere. 5. This Court took cognizance of the case ogainst the accused for the offences punishable under Sections 364, 377, 3O2 and 201 of IPC and under Section 3 r/ u,t 4 of The Protection of Children from Sexual Offences Act, 2O 12." 19

26. Learned !ii'ssions Judge found that, basecl or hndings of the Juvenile .:ttstice Board, the accused has not pr:eferred any revision, and tlrr: indings have attained hna-lity t-o h-eat the accused as an adult, emd rL,;cordingly, the case was tried. 27 . The Juv't rr rlr Justice Act was enacted in the berit interest of Children (who e:1,,,: not completed 18 years) alleged ancl found to be in conflict wit{ laLw, and for their rehabilitation through severa-i processes to etr;LLr-e that the child's needs are tnet an 1 their basic human rights; irrr: ltrotected.

28. Any enirct:-lent has to be read as a whole to hnd out its purpose, scol)€ , atrd its application. A reading of Secti,rn 19 in the context of de:i1ic61 whether a chitd can be tried as an adult shows that the provisi,rlr makes it maldatory for the Childre'n's Court to independentl.g a-.s;t:ss the child regarding his (i) rnental md physical capacity to :c r,:.rrLit such offence; (ii) ability to uncierstand the consequencer;, zri.: cl (iii) the circumstances under whicl: the offence was committt:ci . 'ftLe Children's Court carnot bnrsh asitle its duty of independent as;srr:ssment by relying on the assessm(rnt leport try the Board under S,r()t.()n 1 5 of the Act. r 20 29- Though the guidelines of the Nationa-l Commission were issued subsequent to the Board's assessment in the present case, however, Section 19 of the Juvenile Justice Act clearly stipulates the assessment that the children's court must conduct before deciding to try the child as an adult. It cannot be an empty formality by the Children's Court, and the assessment by Children,s Court cannot be wholly on the basis of the preliminarJr assessment made by the Board. The intent of the kgislature is clear and mandates the assessment of the child at t\Mo stages. The first stage is by the Board, which is a preliminary assessment, and after the case is sent to the Children's Court, the Judge of the Children,s Court has the mandatory duty to make an independent assessment about the necessit5r of trying the child as an adult.

30. As seen from the judgment of the learned Sessions Judge, the learned Sessions Judge stated that, *on due assessment of the child. in conflict with laut, this Court has come to a conclusion that he has to be tried as an adult as specified under Section 19(1)(i) of the Juuenile Justice Act." 21,

31. By no slr,:::LL of imagination, cal such hn,1in11s ol the learned Sessions Juc.g,: bt: deemed as an assessment, 'rrhi,:h is maldatory under Section t!tr I )(i) of the Juvenile Justice Act. Ttre assessment of the learned Se'.;sir>ns Judge is bereft of any reasrtnirLg. 'l'he details of the assessm€nt l,lrat were made ought to have been nalrated by the learned Sessions; Judge before concluding thal the c riid/accused could be triecl rrr; rrn adult.

32. Learned Sie':;sions Judge further found that the child in conflict with law has rrc,r- preferred any revision and that the f:ndings have reached hnalibr, rvhich is also improper and incon-,:ct. The child in conflict with [av' rot questioning the preliminarT as;sessment of the Board will r:o,, ir any manner complete the requirr:ment of an independent assu:rssment by the Children's Court Judge before trying him ar; arr ldult. The child not questioning the prelimina4r assessment ,rf tlLr: Board will not absolve the Clhil<lren's Court Judge from reirlii:-rg al independent assessment- of the mental and physical capa.c,tlr' c,f the child, and his/her abilibf to unrlerstand ttre offence and tht: circumstances under whiclL the cffence was committed. '))

33. The Legislature has deemed it appropriate and necessa5r that there should be a two-stage independent assessment regarding the mental arrd physical capacity, the ability to understand the consequences, ald also the circumstances under which the offence was committed, since the trial by a Juvenile Justice Board and tlle Children's Court vaqr, and the Children,s Court calo inflict punishment on the child as an adult. The maximr_rm punishment and detention in a special school could be up to 3 years or till attainment of 21 years of age, under the Juvenile Justice Act. Whereas, if a child, is tried as an adult, it can also result in capital punishment. When there is such a variation in the punishment that could be inflicted by the Board and the Children's Court, it is mandatory that the assessment, firsfly by the Board and secondly by the Children's Court, has to be strictly followed. As already discussed, placing reliance on the assessment of the Board, without there being an iridependent assessment by the Children's Court, is bad in law and caused prejudice to the appellant.

34. For the reasons discussed, the Judgment of the Children's Court is hereby set aside. I 23

35. Following t-Lr: jud.gment of the Hon'ble Suprem': Cr'urt in Ajeet Gurjar v. The State of Madhya Pradesh's, tht: cese 's remanded back to the (llL:ldren's Court for conductiag an inquiry in accordalce vril L Srection 19(1) of the Act. If the Ohillren's Court comes to a crtncltrsion that the appellant can be trierl as aI1 adult, there need not t,r: a. de nouo trial and the Childrt:n's C:o lrt can pass judgment on rfl,3 basis of evidence available on rec')rd and the independent 1s.isoisment made by it. The Children's Corrrt shall give preference to th Lr; case and dispose of it as e 'xpe'ditiously as possible. The lac:l s; of the case are not discusst:d s'inc': we find aI illegality in tlttr (llLildren's court abdicating its dutlr urder Section 19 to conduc I rrt independent assessment.

36. Criminal \g>rtea1 is ordered accordingly. One Fair Cop\,r to the Hon'ble Sri Justice K.SURENDER (For His Lordships kind perusal) One Fair Cop1, 111 the Hon'ble Sri Justice E.V.VENUGOPAL (For His Lordships kind perusal) Sd/- MC,HD, ISMAIL DE,PUTY REGISTRAR To, //TRUE COPY// .SECTION OFFICER 1. The L\cd tional Metropolitan Sessions Judge Cum Special Judge for Trial of Offenr;e u^c€r Protection of Children from sexual offences Act, 2. The S I p,errr tr:ndent, Chanchalguda Central prison, Hyderitbad 3. The Stalic,n Flouse Officer, Chandrayangutta police Siatior, rlyderabad 4. 9 LR Oocie,s 5. The Unce" S;r-.cretary, Union of lndia Ministry of law, Justice anri Company 6. The secreta r/ Advocates Association (TG) Library, High court l]uirdi rgs Hyderabad I 9n" 99 k, S;.i Pushpinder Kaur, Advoiate lOeUCy Affairs, tJe,r l)elhi. -Hyderabad t,o.u"r,or, Hish court fdr the Stare of rera,sana at Lp ry, u lyo""f$: i,,[,Lol;

9. Two CD C oJries KslltAH HIGH CI:IURT DATED: 1010412025 JUDGME,NT CRLA.No.626 of 2019 i I ,y 7- r!) .):. llli: t ( ,\] 3 ?lJJ'litl -r( 5'i Al r'' rj -\.i(::=rEj i. \ ) ORDERING THE CRL.A. ( )\) -t.r' \ {\1 .? 9 ( q v,