Patna High Court
AMIT KUMAR @ CHHOTU @ AMIT KUMAR PANDITversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The appellate court held that the JJB and Children’s Court failed to observe the mandatory provisions of Sections 15 and 19 of the Juvenile Justice Act, rendering the trial vitiated and necessitating the setting aside of the conviction and acquittal of the appellant.
Summary
The appellant, Amit Kumar, was convicted by the Child Court-cum-1st Additional Sessions Judge in a POCSO case for offences under Section 376 IPC and Section 6 of the POCSO Act, receiving a 13-year imprisonment and a fine. He appealed, arguing that the Juvenile Justice Board (JJB) and the Children’s Court failed to comply with the mandatory provisions of Sections 15 and 19 of the Juvenile Justice (Care and Protection of Children) Act, 2015, particularly the requirement of a proper preliminary assessment with expert assistance. The court examined the age determination of the victim, noting a radiological report with a two‑year margin of error, and concluded that the victim could not be conclusively held to be a minor under the POCSO Act. Relying on precedents such as Lalu Kumar and Barun Chandra Thakur, the court held that the procedural lapses vitiated the trial. Consequently, the appellate court set aside the conviction and acquitted the appellant, ordering his immediate release. The appeal was allowed.
Issues considered
- Whether the Juvenile Justice Board complied with the mandatory requirements of Section 15 of the JJ Act in conducting a preliminary assessment of a child offender.
- Whether the Children’s Court adhered to the mandatory provisions of Section 19(1)(i) of the JJ Act in deciding to try the appellant as an adult.
- Whether the victim was a child within the meaning of Section 2(d) of the POCSO Act given the age determination and margin of error.
- Whether the conviction under Section 376 IPC stands in view of the procedural violations of the JJ Act.
- Whether the appellate court should set aside the impugned judgment and acquit the appellant.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 313
- Indian Penal Code — s. 34, 376, 506
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 15, 19(1)(i), 19(3), 2(d)
- Protection of Children from Sexual Offences Act — s. 4, 5(j)(ii), 6
Subjects
- POCSO
- IPC 376
- Juvenile Justice Act
- preliminary assessment
- age determination
- child offender
- appeal
- acquittal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.599 of 2023
Arising Out of PS. Case No.-211 Year-2020 Thana- BELHAR District- Banka
======================================================
Amit Kumar @ Chhotu @ Amit Kumar Pandit C/o Krishna Kumar Pandit
@Krishnadeo Pandit Resident Of Village -Bara, Police Station -Belhar,
District- Banka
... ... Appellant
Versus
1. The State of Bihar
2. Respondent (X)
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Ajay Mukherjee, Advocate
For the State : Mr. Parmeshwar Mehta, APP
For the Resp No. 2 : None
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 16-03-2026
Heard Mr. Ajay Mukherjee, learned counsel for the
appellant and Mr. Parmeshwar Mehta, learned Additional Public
Prosecutor for the State.
2. Despite valid service of notice on respondent no. 2, no
one has entered appearance on her behalf to oppose this appeal.
3. The sole appellant in this case is seeking setting aside
of the judgment of conviction dated 18.05.2023 (hereinafter
referred to as ‘impugned judgment’) and the order of sentence
dated 20.05.2023 (in short called the ‘impugned order’), passed by
the Child Court-cum-1st Additional Sessions Judge, Banka (in
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
2/23
short ‘learned trial court’) in POCSO Case No.211 of 2020 (arising
out of Belhar P.S. Case No. 211 of 2020) dated 18.06.2020,
registered for the offences alleged under Sections 376, 506/34 of
Indian Penal Code (hereinafter referred to as ‘IPC’) and Section 4
of Protection of Children from Sexual Offences Act (hereinafter
referred to as ‘POCSO Act’).
4. By the impugned judgment, the learned trial Court has
been pleased to convict the appellant for the offences under
Section 376 of IPC and Section 5(j) (ii)/6 of POCSO Act. Having
convicted the appellant under these provisions, the learned trial
Court has ordered the appellant to undergo imprisonment for 13
years for the offence under Section 6 of the POCSO Act, the
appellant has been directed to pay a fine of Rs. 20,000/-. In default
of payment of fine, the appellant shall undergo simple
imprisonment for one year more. No separate sentence was
awarded under Section 376 of IPC and Section 5(j) (ii)/6 of the
POCSO Act.
Prosecution Story
5. The prosecution case is based on a written
information submitted by victim girl (X). In her written
information dated 18.06.2020 giving rise to Belhar P.S. Case No.
211 of 2020 under Sections 376, 506/34 of IPC and Section 4 of
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
3/23
POCSO Act. The informant/victim alleged that the appellant
approached the victim and expressed his desire to marry her, while
simultaneously pressuring her to engage in a physical relationship.
In the pretext of his false promise, the victim entered into physical
relationship with the appellant, and when she became pregnant, he
refused to follow through on his marriage proposal. When the
appellant’s parents knew of the situation, they went to the victim's
house and asked her mother and grandmother to proceed with the
abortion, to which the victim's mother responded that her husband
was outside and insisted to wait for him. They then threatened the
victim's family to face dire consequences if they would not
proceed with the abortion. It is alleged that the conduct of the
appellant clearly demonstrates that he sexually exploited the
victim under the false pretext of marriage.
6. On the basis of this written application FIR was
registered being Belhar P.S. Case No. 211 of 2020 dated
18.06.2020 for the offences under Sections 376, 506/34 IPC and
Section 4 POCSO Act against the accused persons, namely, (1)
Father of the appellant, (2) Mother of the appellant and (3) this
appellant. After investigation and upon completion of the same,
charge-sheet was filed being Chargesheet No. 352 of 2020 dated
20.09.2020 against the appellant only under Section 376 IPC and
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
4/23
Section 4 of the POCSO Act, showing other accused not sent up
for trial. Learned Trial Court vide order dated 19.10.2020 took
cognizance of the offences punishable under Section 376 IPC and
Section 4 of the POCSO Act against the appellant.
7. The charges were explained to the appellant in Hindi
on which he pleaded not guilty and claimed to be tried. Thereafter,
the learned trial court vide order dated 21.08.2021 framed the
charges under Section 376 of IPC and Section 4 of the POCSO
Act.
8. In course of trial, the prosecution examined as many
as seven witnesses and exhibited various documents. The list of
the witnesses and the description of the documents marked
exhibits on behalf of prosecution are provided hereunder in a
tabular form:-
List of Prosecution Witnesses:-
PW-1 Mother of the victim
PW-2 Ashwasthama Kumar
PW-3 Dilip Kumar Yadav
PW-4 Father of the victim
PW-5 Informant/Victim (X)
PW-6 Dr. Indubala Prasad
PW-7 Rita Kumari (I.O.)
List of Exhibits:-
Exhibit ‘P1’ Signature of the informant on written report
Exhibit ‘P2’ Statement under Section 164 Cr.P.C.
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
5/23
Exhibit ‘P3’ Signature of M.O. on five injury reports
Exhibit ‘P4’ Supplementary Injury report
Exhibit ‘P5’ Endorsement and pagination
9. Thereafter, the statement of the appellant was
recorded under Section 313 Cr.P.C. in which he accepted that he
had established physical relationship with the victim and he is the
father of the child and took a plea that he is innocent.
10. In course of trial, the defence brought as many as
nine witnesses, but not exhibited any oral or documentary
evidence. List of defence witnesses are being mentioned hereunder
in tabular form:-
List of Defence Witnesses
DW-1 Ganesh Pandit
DW-2 Govind Pandit
DW-3 Bablu Pandit
DW-4 Ghanshyam Pandit
DW-5 Hari Shankar Pandit
DW-6 Vidya Nand Pandit
DW-7 Rajkumar Yadav
DW-8 Jaykant Pandit
DW-9 Chhedi Pandit
Finding of the learned Trial Court
11. Learned trial court after analysing the evidences
available on the record found that the appellant established physical
relationship with the victim on the pretext of marriage due to which
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
6/23
she became pregnant. Learned trial court observed that the victim’s
testimony is true and trustworthy, and it is corroborated by other
circumstantial evidence.
12. Learned trial court after carefully considering all the
facts and circumstances of the case held that the prosecution has
been able to prove the charges levelled against the appellant
beyond all reasonable doubts, accordingly, the appellant was
convicted of the charges under Section 376 IPC and Section 5(j)
(ii)/6 of the POCSO Act.
Submission on behalf of appellant
13. Mr. Ajay Mukherjee, learned counsel for the
appellant, submits that in this case, the learned Juvenile Justice
Board (in short ‘JJB’) as well as the learned trial court/children
court, have committed gross error by not adhering to the mandatory
provisions of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (in short ‘JJ Act’). Attention has been drawn towards
Section 15 and 19 of the JJ Act. It is submitted that in the case of
Lalu Kumar @ Lal Babu @ Lallu vs. The State of Bihar
reported in 2019 (4) PLJR 833, the Hon’ble Division Bench of this
Court has discussed the principles of parens patriae. The
constitutional and procedural rights of a juvenile - a Child in
Conflict with Law (in short ‘CICL’) have been duly recognised in
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
7/23
India. It has been held that a CICL should be treated in a manner
consistent with the promotion of the child’s sense of dignity and
worth. The scheme of the JJ Act has been discussed and it has been
held that Section 15 of the JJ Act is a special provision to tackle the
child offenders committing heinous offences in the age group of 16
to 18 years. Paragraph ‘98’ to ‘103’ of the judgment have been
relied upon to demonstrate the mandatory requirements of Section
15 of the JJ Act.
14. Learned counsel has further taken this Court through
Section 19(1)(i) of the JJ Act in connection with the trial of a child
as an adult. In case of Lalu Kumar (supra), this aspect of the
matter has also been discussed and the Hon’ble Division Bench has
analysed the scope of Section 19(1)(i) of the JJ Act. It has also been
held that this provision is mandatory and the children’s court
cannot dispense with the requirements of this provision. Further,
while passing the final order with regard to a CICL, the children’s
court shall ensure that the order 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. The children’s court is also required to ensure that the child
who is found to be in conflict with law, is sent to a place of safety
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
8/23
till he attains the age of 21 years, thereafter the person shall be
transferred to jail.
15. It is submitted that in the present case, neither the
learned JJB nor the children court has followed the mandatory
provisions. The learned trial court/children court has convicted the
appellant/CICL under Section 376 IPC and Section 5(j)(ii)/6 of the
POCSO Act. The court proceeded to impose a sentence of 13 years
imprisonment with a fine of Rs. 20,000. In case of non-payment of
fine, the appellant would be required to undergo further one year
simple imprisonment.
16. Learned counsel for the appellant has further
submitted that the prosecutrix (PW-5) has repeatedly stated that the
appellant is of the same age group and if he would have married
her, then this case would not have been lodged. She has stated that
she could not know for a period of three months that she had
become pregnant and her mother had not come to know about her
pregnancy even as she was having five months pregnancy.
Submission on behalf of State
17. Learned Additional Public Prosecutor for the State
submits that in this case, the evidence of the prosecutrix (PW-5) is
itself beyond doubt and more than sufficient to record conviction of
the appellant. She has stated that at the time of occurrence, she was
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
9/23
16 years old and on the pretext of marrying her, the appellant had
established physical relationship with her. The victim had become
pregnant because of the said physical relationship with the
appellant, but the appellant refused to marry her. As regards the
non-compliance with the provision of Sections 15, 19(1)(i) and
19(3) of the JJ Act, learned Additional Public Prosecutor for the
State does not contest the submission of learned counsel for the
appellant.
Consideration
18. It appears from the perusal of the trial court records
that the learned Juvenile Justice Board assessed the age of the
appellant as 17 years 9 months and 16 days vide order dated
21.07.2020/17.08.2020. This was a lock-down period when the
Courts were being conducted in limited mode.
19. It further appears that on 19.10.2020, when the
records were placed before the Juvenile Justice Board, again it was
COVID-19 period and the child in conflict with law (CICL) was
not produced before the Court. That day, the record was pending
for conducting preliminary assessment under Section 15 of the
Juvenile Justice (Care and Protection of Children) Act. The J.J.
Board had no occasion to even see the CICL from the naked eyes,
still on the basis of submissions advanced by the learned Public
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
10/23
Prosecutor and the learned counsel for the accused, the assessment
was conducted and the Board directed for transfer of records to the
children Court saying that the appellant is required to be tried as an
adult. There is nothing on the record to show that there was any
psychologist member on the J.J. Board at the time of taking such
decision. It is evident from the record that the Board had no
occasion to interact with the CICL while passing the order of
preliminary assessment under Section 15 of J.J. Act.
20. It further appears that when the records were sent to
the learned Children Court-cum-ADJ 1st, Banka, the learned
Children Court also failed to consider the matter keeping in view
the spirit of sub-section 1 of Section 19 of the J.J. Act. A
completely vague order has been passed by the Children Court in
which it is stated that there is a need for trial of the child as an adult
as per provisions of the Cr.P.C. There is no consideration of the
relevant factors which are envisaged by the statute. To this Court, it
appears that the order dated 09.08.2021 has been passed by the
learned Children Court-cum-ADJ 1st, Banka, without hearing
learned counsel for the accused and it was done during the COVID-
19 period in complete haste. The order of the learned Children
Court does not disclose any application of judicious mind.
Therefore, the double safety valve which is otherwise available to
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
11/23
the CICL under the scheme of the statement has failed to protect
the interest of CICL.
21. As regards the scope and ambit of Section 15 of the JJ
Act, before dealing with the submission of learned counsel for the
appellant, we reproduce Section 15 of the JJ Act hereunder for a
ready reference:-
“15. Preliminary assessment into heinous offences
by Board.—(1) In case of a heinous offence alleged
to have been committed by a child, who has
completed or is above the age of sixteen years, the
Board shall conduct a preliminary assessment with
regard to his mental and physical capacity to commit
such offence, ability to understand the consequences
of the offence and the circumstances in which he
allegedly committed the offence, and may pass an
order in accordance with the provisions of sub-
section (3) of section 18:
Provided that for such an assessment, the Board may
take the assistance of experienced psychologists or
psycho-social workers or other experts.
Explanation.—For the purposes of this section, it is
clarified that preliminary assessment is not a trial,
but is to assess the capacity of such child to commit
and understand the consequences of the alleged
offence.
(2) Where the Board is satisfied on preliminary
assessment that the matter should be disposed of by
the Board, then the Board shall follow the
procedure, as far as may be, for trial in summons
case under the Code of Criminal Procedure, 1973 (2
of 1974):
Provided that the order of the Board to dispose of
the matter shall be appealable under sub-section (2)
of section 101: Provided further that the assessment
under this section shall be completed within the
period specified in section 14.”
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
12/23
22. Dealing with the aforementioned provision, in the
case of Lalu Kumar (supra), the Hon’ble Division Bench of this
Court has held as under:-
“97. Section 15 of the Act of 2015, which
enumerates special provisions to tackle the child
offenders committing ‘heinous offences’ in the age
group of 16 to 18 years is equally important for us.
If a child in the age group of 16 to 18 years is
alleged to have committed ‘heinous offence’, as
defined in Section 2(33) of the Act, the Board is
required to conduct a preliminary assessment.
98. In order to determine, in case of a child in the
age group of 16 to 18 years alleged to have
committed a ‘heinous offence’, whether he should be
transferred to the Children's Court to be tried as an
adult, the Board has to follow certain essential steps.
99. Firstly, it must conclusively determine that the
child in conflict with law before it is above the age
of 16 years, but below the age of 18 years on the
date of commission of the offence. The
determination of age is very crucial for the child as
the same has the potential to expose him to the
possibility of being transferred to the Children's
Court to be tried as an adult.
100. Secondly, if the Board comes to the conclusion
that the child before it was 16 years or above, but
below the age 18 years on the date of commission of
the offence, it would be required to conclusively
determine whether the offence alleged to have been
committed by him is a ‘heinous offence’ or not.
101. Thirdly, transfer of a child for trial as an adult
can only be done after preliminary assessment by the
Board. The word ‘shall’ in Section 15(1) indicates
that it is mandatory for the Board to conduct
‘preliminary assessment’. The ‘preliminary
assessment’ has to be conducted to assess:—
(1) Child's mental and physical capacity to
commit alleged offence;
(2) Child's ability to understand consequences of
the offence; and
(3) the circumstances in which the child allegedly
committed the offence.
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
13/23
102. Fourthly, after the preliminary assessment, the
Board is required to further determine whether it
would deal with the case of the child itself or
transfer him to the Children's Court.
103. The aforesaid mandatory requirements are to be
carefully conducted while determining whether a
child should be transferred to the Children's Court to
be tried as an adult or not. The legislature has
provided that for the purpose of preliminary
assessment the Board may take assistance of an
experienced psychologist or psycho-social worker or
other experts.”
23. At this stage, we also reproduce Section 19 of the JJ
Act as under:-
“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 (2 of 1974) 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.
(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
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
14/23
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.”
24. In the case of Lalu Kumar (supra), the Hon’ble
Division Bench has considered the questions framed with respect to
the scope of Section 19(1)(i) as also the mandatory nature of this
provision in the following paragraphs:-
“116. The sixth question framed by us is in two
parts. The first part is “What is the scope of Section
19(1)(i) of the Act of 2015 in connection with the
trial of a child as an adult?” and the second part is
“Whether the provisions of Section 19 of the Act are
mandatory or the Children's Court has to
compulsorily follow the recommendations of the
Board made under Section 15 read with Section
18(3) of the Act of 2015?”
117. The answer to the above question will also be in
two parts.
118. Upon a case of a child having been transferred
to the Children's Court, a duty has been cast upon
the Children's Court to further decide about the
suitability of the child to be tried as an adult.
119. The words used in Section 19(1)(i) and 19(1)(ii)
give two options to the Children's Court. First, to try
the transferred child as an adult and second not to
deal with child as an adult.
120. The Children's Court is required to record its
reason while arriving at a conclusion whether the
child should be treated as a child or as an adult, in
view of Rule 13 (6) of the Rules.
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
15/23
121. In case, the Children's Court decides to deal
with child as a child, it has to conduct an inquiry as a
Board following the procedures for trial of summons
case in accordance with the provisions of Section 18
as would appear from the words used in Section
19(1)(i) of the Act of 2015.
122. In case, it decides to try the child as an adult, it
shall follow the procedures, as prescribed by the
CrPC for the purpose of trial by Sessions Court and
pass appropriate orders after trial without prejudice
to the provisions of Sections 19 and 21 of the Act
considering special ‘needs of the child’ the tenets of
‘fair trial’ and maintaining a ‘child friendly’
atmosphere as provided under Section 19(1)(i) of the
Act of 2015.
123. The aforesaid discussion answers the first part
of the sixth question.
124. Having analysed scope of Section 19(1)(i) of
the Act of 2015, now let us examine the second part
of sixth question framed by us:“whether the
provisions of Section 19 of the Act of 2015 are
mandatory or the Children's Court has to
compulsorily follow the recommendations of the
Board made under Section 15 read with Section
18(3) of the Act of 2015?”.
125. The opening expression used in Section 19(1) is
“after the receipt of preliminary assessment from the
Board under Section 15, the Children's Court may
decide” gives an impression that the Children's
Court may or may not decide in terms of Section 19
whether or not there is need for trial of the child as
an adult.
126. However, if Section 19(1)(i) of the Act of 2015
is read together with Rule 13(6) of the Rules framed
by the Central Government, which stipulates that the
Children's Court shall record its reason while
arriving at a conclusion whether the child is to be
treated as an adult or as a child, it would be evident
that the provisions of Section 19(1) are not optional.
127. The expression used in Rule 13(6) of the Rules
is ‘shall’ and thus mandates the Children's Court to
record its reason while arriving at a conclusion
whether the child is to be treated as an adult or a
child.
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
16/23
128. Hence, the answer to the second part of sixth
question is that the provisions of Section 19(1) of the
Act of 2015 are mandatory. The Children's Court
cannot dispense with the requirement of deciding as
to whether there is need to try the transferred child
as an adult or to deal with the transferred child as a
child. In other words, the Children's Court has to
compulsorily follow the recommendations of the
Board made under Section 15 read with Section
18(3) of the Act of 2015.
129. Thus, the second part of sixth question for
determination is answered, accordingly.”
25. There is yet another judgment of the Hon’ble
Supreme Court which mandates the requirement of following the
proper procedure while trying a child as an adult by the Children’s
Court. In the case of Barun Chandra Thakur vs. Master Bholu
and Another reported in (2023) 12 SCC 401, the Hon’ble
Supreme Court has held that looking to the purpose of the JJ Act
and its legislative intent, i.e. to ensure the protection of best interest
of the child, the expression “may” in the proviso to Section 15(1)
thereof and the requirement of taking assistance of experienced
psychologists or psycho-social workers or other experts would
operate as mandatory unless the Board itself comprises of at least
one member who is a practicing professional with a degree in child
psychology or child psychiatry. The Hon’ble Supreme Court
further clarified that in case the Board, in view of its own
composition with at least one member, who is a practicing
professional with a degree in child psychology or child psychiatry,
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
17/23
chooses not to take such assistance, it would record specific
reasons therefor. Reference in this regard has been made to Rule
10A of the Juvenile Justice (Care and Protection of Children)
Model Rules, 2016. We reproduce paragraph ‘80’ to ‘83’ of the
judgment in case of Barun Chandra Thakur supra hereunder:-
“80. It is a well-settled principle of interpretation
that the word “may” when used in a legislation by
itself does not connote a directory meaning. If in a
particular case, in the interests of equity and justice
it appears to the court that the intent of the
legislature is to convey a statutory duty, then the
use of the word “may” will not prevent the court
from giving it a mandatory colour.
81. This Court in Bachahan Devi v. Nagar Nigam,
Gorakhpur20 held as under : (SCC p. 383, para 18)
“18. It is well settled that the use of the word
“may” in a statutory provision would not by
itself show that the provision is directory in
nature. In some cases, the legislature may use the
word “may” as a matter of pure conventional
courtesy and yet intend a mandatory force. In
order, therefore, to interpret the legal import of
the word “may”, the court has to consider various
factors, namely, the object and the scheme of the
Act, the context and the background against
which the words have been used, the purpose and
the advantages sought to be achieved by the use
of this word, and the like. It is equally well
settled that where the word “may” involves a
discretion coupled with an obligation or where it
confers a positive benefit to a general class of
subjects in a utility Act, or where the court
advances a remedy and suppresses the mischief,
or where giving the words directory significance
would defeat the very object of the Act, the word
“may” should be interpreted to convey a
mandatory force. As a general rule, the word
“may” is permissive and operative to confer
discretion and especially so, where it is used in
juxtaposition to the word “shall”, which
ordinarily is imperative as it imposes a duty.
Cases, however, are not wanting where the words
20. (2008) 12 SCC 372
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
18/23
“may”, “shall” and “must” are used
interchangeably. In order to find out whether
these words are being used in a directory or in a
mandatory sense, the intent of the legislature
should be looked into along with the pertinent
circumstances.”
82. Similarly, this Court in Dhampur Sugar Mills
Ltd. v. State of U.P.48 held : (SCC pp. 348-49, para
36)
“36. … In our judgment, mere use of word
“may” or “shall” is not conclusive. The question
whether a particular provision of a statute is
directory or mandatory cannot be resolved by
laying down any general rule of universal
application. Such controversy has to be decided
by ascertaining the intention of the legislature
and not by looking at the language in which the
provision is clothed. And for finding out the
legislative intent, the court must examine the
scheme of the Act, purpose and object underlying
the provision, consequences likely to ensue or
inconvenience likely to result if the provision is
read one way or the other and many more
considerations relevant to the issue.”
83. Therefore, looking to the purpose of the 2015
Act and its legislative intent, particularly to ensure
the protection of best interest of the child, the
expression “may” in the proviso to Section 15(1)
thereof and the requirement of taking assistance of
experienced psychologists or psycho-social
workers or other experts would operate as
mandatory unless the Board itself comprises of at
least one member who is a practising professional
with a degree in child psychology or child
psychiatry. Moreover, in case the Board, in view of
its own composition with at least one member, who
is a practising professional with a degree in child
psychology or child psychiatry, chooses not to take
such assistance, it would record specific reasons
therefor.”
48. (2007) 8 SCC 338
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
19/23
26. Keeping in view the aforementioned judgments of the
Hon’ble Supreme Court and this Hon’ble Court as referred above,
when we examine the facts of the present case based on the
evidences available on the record, it is found that at both the stages,
i.e. at the stage of the JJ Board and then the Children Court, the
aforementioned mandatory provisions have not been followed. The
order of preliminary assessment nowhere shows that the JJ Board
had taken assistance of an experienced psychologist or psycho-
social worker or other expert. As a result of this, the
appellant/CICL has been deprived of a fair trial.
27. At this stage, we find that the age of the
victim/prosecutrix has been determined by the learned Children
Court on the basis of the medical report and uncontroverted facts.
The medical report of the victim has been brought on record and
we have perused the same. The victim was examined by the
Medical Board in Sadar Hospital, Banka on 19.06.2020. For age
assessment, the radiologist in Jawaharlal Nehru Medical College
and Hospital, Bhagalpur gave his opinion (Exhibit ‘P-4/PW-6’) in
which the age of the victim on the basis of radiological report has
been assessed between 15-17 years. As regards her age, the victim
(PW-5) has herself deposed that at the time of occurrence, she was
16 years old. In her deposition, Dr. Indubala Prasad (PW-6) has
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
20/23
stated that on the basis of the report of the radiologist of Bhagalpur,
she had prepared the supplementary medical report (Exhibit ‘P-
4/PW-6’). She has stated that there may be a difference of two
years in the age determination as per her medical opinion.
28. How the age of a victim under the POCSO Act is to
be determined has been considered by the Hon’ble Division Bench
of the Delhi High Court in the case of Court on its own motion
Vs. State of NCT of Delhi reported in 2024 SCC Online Del
4484. The views expressed by the Hon’ble Delhi High Court in the
case of Court on its own Motion (supra) are as under:
“46. As an upshot of our foregoing discussion,
the Reference is answered as under:-
(i) Whether in POCSO cases, the Court is
required to consider the lower side of the age
estimation report, or the upper side of the age
estimation report of a victim in cases where
the age of the victim is proved through bone
age ossification test?
Ans: In such cases of sexual assault, wherever,
the court is called upon to determine the age of
victim based on ‘bone age ossification report’,
the upper age given in ‘reference range’ be
considered as age of the victim.
(ii) Whether the principle of ‘margin of error’
is to be applicable or not in cases under the
POCSO Act where the age of a victim is to be
proved through bone age ossification test.
Ans: Yes. The margin of error of two years is
further required to be applied.”
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
21/23
29. In the case of Rajak Mohammad vs. State of H.P.
reported in (2018) 9 SCC 248, the Hon’ble Supreme Court has
held as under:-
“9. While it is correct that the age determined on the
basis of a radiological examination may not be an
accurate determination and sufficient margin either
way has to be allowed, yet the totality of the facts
stated above read with the report of the radiological
examination leaves room for ample doubt with
regard to the correct age of the prosecutrix. The
benefit of the aforesaid doubt, naturally, must go in
favour of the accused.
10. We will, therefore, have to hold that in the
present case the prosecution has not succeeded in
proving that the prosecutrix was a minor on the date
of the alleged occurrence. If that is so, based on the
evidence on record, already referred to, we will
further have to hold that the possibility of the
prosecutrix being a consenting party cannot be
altogether ruled out.”
30. From the evidence available on the record as also
keeping in view the judicial pronouncements on the subject, we
come to a conclusion that in this case, the age of the victim cannot
be concluded as being below 18 years. The upper extremity of the
age after taking recourse to +/- two years would go to above 18
years. Thus, the victim not being a child within the meaning of
Section 2(d) of the POCSO Act, the charges under the POCSO Act
is liable to fail.
31. So far as the charge under Section 376 IPC is
concerned, the appellant has made out a case for setting aside of his
conviction and sentence under Section 376 IPC in view of the
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
22/23
complete non-compliance with the provisions of the JJ Act as
discussed hereinabove, which has deprived the appellant of a fair
trial procedure.
32. We also find that in this case both the appellant as
well as the victim/prosecutrix were of the same age group and the
prosecutrix accepts in her deposition that she had entered into
physical relationship with the appellant who is of her age because
the appellant had promised her to marry. The proximate cause for
lodging of the case is the refusal to marry. It is not the case of the
victim that she was forced to enter into physical relationship. This,
we are observing keeping in view that victim in this case is not kept
in the category of a ‘child’. If the victim is not a ‘child’ and she
entered into physical relationship under belief that the appellant
would solemnise marriage with her but later on marriage could not
take place, the benefit of doubt shall go to the accused-appellant.
33. In our considered opinion, the entire trial is vitiated
because the Juvenile Justice Board has violated the mandatory
provisions of Section 15 of the JJ Act and sent the record to the
Children Court for trial of the appellant as an adult. The learned
children court also failed to act in terms of Section 19 of the JJ Act.
34. For the aforementioned reasons, we set aside the
impugned judgment and order of the learned trial court/Children
Patna High Court CR. APP (DB) No.599 of 2023 dt.16-03-2026
23/23
Court. The appellant is acquitted of the charges. He is said to be in
incarceration. He shall be released forthwith if not wanted in any
other case.
35. This appeal is allowed.
36. Let a copy of this judgment together with the trial
court records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Soni Shrivastava, J)
Anand/Harsh/-
AFR/NAFR AFR
CAV DATE
Uploading Date 31.03.2026
Transmission Date 31.03.2026
Checking your session…