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Patna High Court

MUNNA KUSHWAHAversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The Special Judge’s trial of the juvenile as an adult without a mandatory preliminary assessment by the Juvenile Justice Board was unlawful, and the conviction and sentence are set aside.

Summary

The appellant, a juvenile aged 17 at the time of the alleged offence, was convicted by a Special Judge of rape under IPC Section 376(3) and aggravated sexual assault under POCSO Section 6 and sentenced to twenty years’ rigorous imprisonment. The conviction was based on the victim’s testimony and medical evidence. The appellant challenged the conviction, arguing that the Special Judge violated the Juvenile Justice (Care and Protection of Children) Act, 2015 by trying him as an adult without the mandatory preliminary assessment by a Juvenile Justice Board under Section 15. The High Court held that the Special Judge erred in bypassing the Board and that the procedural safeguards of Sections 15 and 19 of the JJ Act were not complied with. Consequently, the Court set aside the conviction and sentence, remitted the matter to the Juvenile Justice Board for a proper assessment, and directed the trial court to forward the records. The appeal was allowed.

Issues considered

  • Whether the Special Judge was authorized to try a juvenile as an adult without a preliminary assessment by the Juvenile Justice Board under Section 15 of the JJ Act.
  • Whether the conviction and sentence under IPC Section 376(3) and POCSO Section 6 are vitiated by non‑compliance with the procedural requirements of the Juvenile Justice Act.

Legislation cited

Subjects

  • juvenile justice
  • POCSO
  • rape
  • preliminary assessment
  • adult trial of child offender
  • IPC 376
  • Section 6 POCSO
  • Section 15 JJ Act
  • Section 19 JJ Act
  • appeal

Judgment

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.720 of 2023
     Arising Out of PS. Case No.-299 Year-2018 Thana- MAJHAULIA District- West Champaran
     ======================================================
     Accused.
                                                ... ... Appellant/s
                              Versus
1.    The State of Bihar
2.   Father of the victim.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Appellant/s     :        Mr. Udit Narain Singh, Adv.
                                      Mr. Ramchandra Sahni, Adv.
     For the Respondent/s    :        Mr. Bipin Kumar, A.P.P.
     For the Pvt. Respondent :        Mr. Sanjeev Kumar, Adv.
                                      Mr. Sitesh Kashyap, Adv.
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
             and
             HONOURABLE MR. JUSTICE PRAVEEN KUMAR
     ORAL JUDGMENT
     (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

      Date : 11-02-2026

                        Heard learned counsel for the appellant, learned

      Additional Public Prosecutor for the State and learned counsel

      for the informant.

                   2. The present criminal appeal has been preferred

      against     the      judgment     of    conviction      dated     09.05.2023

      (hereinafter referred to as the ‘impugned judgment’) and the

      order of sentence dated 16.05.2023 (hereinafter referred to as

      the ‘impugned order’) passed by the learned court of 1 st

      Additional Sessions Judge -cum- Children Court, District,

      Bettiah, West Champaran in Special Case No. 15 of 2018, CIS
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         No. POCSO 48 of 2018. By the impugned judgment of

         conviction, the appellant has been convicted for the offences

         punishable under Section 376(3) of the Indian Penal Code and

         Section 6 of the Protection of Children from Sexual Offences

         Act, 2012 (in short ‘POCSO Act’) and vide impugned order of

         sentence,      he    has     been     directed      to   undergo   rigorous

         imprisonment for a period of twenty years with a fine of Rs.

         20,000 (Twenty thousand) under Section 376(3) of the Indian

         Penal Code (in short ‘IPC’) and in default of payment of the

         fine, the appellant shall undergo simple imprisonment further

         for a period of six months.

                 Prosecution Case.

                 3. The prosecution case is based on written information

         furnished by the father of the victim girl (X) on 11.07.2018 at

         7:00 A.M. to the Station House Officer of Manjhauliya Police

         Station, district- West Champaran. In his written information

         (Exhibit-1), the informant (P.W.-3) has alleged as under:-

                 “That on 10.07.2018 in the night, Barat had come near his

         house and his minor daughter along with his wife had gone to

         watch the Barat and returned back in the night at 1:00 A.M.

         while he was sleeping at the Machan situated at his door. On

         seeing them, he instructed them to sit on the Machan and he
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         went to see the Barat where both of them slept. While they were

         sleeping on the Machan, the appellant, Munna Kushwaha at

         about 1:30 A.M. in the night, came there and taken her minor

         daughter towards the east of his house near the field of his

         brother, Mahendra Mukhiya and committed rape upon her and

         fled away leaving her in unconscious condition in the field.

         When the daughter of the informant came to her mother, she

         woke up and narrated the entire occurrence and thereafter she

         called him.”

                 4. It appears from the record that after investigation of the

         case, based on the materials collected in course of investigation,

         police submitted a charge-sheet under Sections 376 of the I.P.C.

         and Section 6 of the POCSO Act against the sole accused-

         appellant on 02.09.2018.

                 5. Upon submission of charge-sheet, the learned

         Additional District & Sessions Judge-1st -cum- Special Judge,

         (POCSO) took cognizance of the offences vide order dated

         04.09.2018 and the matter was posted on 15.09.2018 for supply

         of police paper, framing of charge and determination of age of

         the accused.

                 6. On 15.09.2018, learned Special Judge considered the

         records produced on behalf of the accused which included the
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         provisional certificate of the Bihar School Examination Board

         showing that the date of birth of the accused was 17.02.2001.

         The date of occurrence being 10.07.2018, the learned Special

         Judge held that the accused was 17 years 4 months and 24 days

         on the date of occurrence. Thus, according to the learned

         Special Judge, the accused was less than 18 years of age.

         Having said so, the learned Court proceeded to observe that the

         accused is more than 16 years old and he has committed heinous

         offence, his mental condition and physical condition were

         observed by the learned Court and it was found that he was able

         to understand the circumstances and the result of commission of

         offence.

                 With this finding on the record in the order 15.09.2018,

         the learned Special Judge directed that the case would be tried

         before the learned 1st Additional District and Sessions Judge,

         Bettiah, West Champaran, Special Judge (POCSO). It was also

         observed that on the said date, the Children’s Court was not

         available.

                 7. The charges were explained in Hindi to the sole

         accused-appellant who denied the charges and claimed to be

         tried. The learned trial court framed charges against the

         appellant-accused under Section 376 of the IPC and Section 6 of
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         the POCSO Act vide order dated 22.09.2018.

                8. The prosecution in order to prove its charges examined

         altogether five (5) witnesses and exhibited several documentary

         evidences. The description of the prosecution witnesses and the

         exhibits are given hereunder in tabular form:

                      List of prosecution witnesses.

                       P.W.-1      Victim
                       P.W.-2      Mother of the victim.
                       P.W.-3      Father of the victim, informant.
                       P.W.-4      Dr. Rashmi Nand Huliya
                       P.W.-5      Ranveer Kumar Jha


                      List of documentary evidence.

                        Exhibit No.         Description of the Exhibit
                        1               Signature of informant on written
                                        application.
                        2               Medical Report of victim.
                        2/a             Signature of Dr. Rashmi on medical
                                        report.
                        2/b             Signature of Dr. Akansha on medical
                                        report.
                        2/c             Signature of Dr. Usha Das on medical
                                        report.
                        3               Endorsement made by SHO Ranvir on
                                        the written report.
                        3/a             Signature of SHO Ranvir on the written
                                        report.
                        4               Formal F.I.R.
                        5               Report of FSL.
                        5/a             Signature of I.O. on report of FSL.
                        6               Seizure list of victim cloths.
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                        6/a             Signature of I.O. on seizure list of
                                        victim cloths.
                        7               Receiving of FSL.
                        8               FSL report.


                 9. The statement of the accused was recorded under

         Section 313 Cr.P.C., he pleaded innocence. The defence has

         produced one witness as D.W.-1, Ravindra Sah.

                 Finding of the Trial Court.

                 10. The learned trial court considering the totality of the

         circumstances appearing on the record held that evidence of

         P.W.-2 is worthy of credence and reliable and there is no reason

         to disbelieve the victim and the entire evidence of the

         prosecution importantly the victim, the prosecution succeeded to

         prove the ingredients of committal of rape & aggravated

         penetrative sexual assault of the child victim aged seven years

         by the Juvenile accused.

                 11. The learned Special Judge on the careful scrutiny of

         the materials available on record found that the prosecution has

         succeeded in proving the charge of rape and aggravated

         penetrative sexual assault committed by the Juvenile accused of

         the child victim aged about seven years beyond all reasonable

         doubts and has also found that the prosecution has produced

         reliable and cogent evidence in support of the charges framed
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         under Section 376(3) of the IPC and Section 6 of the POCSO

         Act against the appellant-accused and the defence has failed in

         creating any dent to the prosecution case and also failed to rebut

         the presumption. Further the learned Special Judge held the

         accused guilty of the charges under Section 376(3) of the IPC

         and Section 6 of the POCSO Act.

                      Submission on behalf of the appellant.

                      12. Learned counsel for the appellant submits that

         while assessing the age of the accused, the learned Special

         Judge exceeded his power and authority under the law. Sub-

         section (2) of Section 9 of The Juvenile Justice (Care and

         Protection of Children) Act, 2015 (hereinafter referred to as the

         ‘J.J. Act’) confers power upon the Court other than a Board to

         determine the age of the person who is a child or was a child on

         the date of commission of the offence. In this regard, the Court

         may form its opinion on its own or can make an inquiry, take

         evidence (but not an affidavit) to determine the age of the

         person but once the learned Court determines the age and

         recorded that the accused is a child within the meaning of

         Section 2 (12) of the J.J. Act, by virtue of sub-section (3) of

         Section 9 of the J.J. Act, the Court was obliged to forward the

         child to the Board for passing appropriate orders and sentence.
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         In such circumstance, the sentence, if any, passed by the Court

         shall be deemed to have no effect.

                      13. Referring to Section 15 of the J.J. Act, learned

         counsel submits that in case of a heinous offence alleged to have

         been committed by a child who has completed or is above the

         age of 16 years, the Board has to 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. After this exercise, J.J. Board may pass

         an order in accordance with provisions of sub-section (3) of

         Section 18. Proviso to Section 15 states that while taking such

         an assessment, the Board may take assistance of experienced

         psychologists or psycho-social workers or other experts.

                      14. In the case of Barun Chandra Thakur Vs.

         Master Bholu & Anr. reported in (2023) 12 SCC 401, the

         Hon’ble Supreme Court has pleased to hold and declare that the

         Board is obliged to take the assistance of experienced

         psychologists while considering a case under Section 15 of the

         J.J. Act. It is submitted that once the records of the case are

         transferred under sub-section (3) of Section 18 of J.J. Act to the

         Children’s Court for trial of the accused as an adult, the
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         Children’s Court would be guided by Section 19 of the J.J. Act.

                      15. In the case of Lalu Kumar and Ors. vs. The

         State of Bihar reported in 2019 (4) PLJR 833, the learned Co-

         ordinate Bench of this Court has held that Section 19(1)

         operates as a double safety valve and protects the right of a child

         who is sought to be prosecuted as an adult. It is because the

         Children’s Court may still take a view that there is no need for

         trial of a child as an adult and may conduct an inquiry of the

         Board and pass appropriate order in accordance with law under

         Section 18 of the J.J. Act.

                      16. It is submitted that in this case, the learned Special

         Judge was required to remit the records and send the accused to

         the Juvenile Justice Board where preliminary assessment in

         terms of Section 15 of the J.J. Act would have been done.

         Section 15 assessment is in the exclusive domain of the Juvenile

         Justice Board but the said exercise has been undertaken by the

         learned Special Judge on his own that too in haste without

         seeking any assistance of a psychologist and in one stroke of

         pen. The learned Special Judge has passed an order that the

         accused should be tried as an adult. Thus, a mandatory exercise

         required to be undertaken by the J.J. Board has been given a go-

         by and an order directing the accused to face trial as an adult
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         was passed in haste, depriving him of his valuable right to get

         assessment done through the Board with the assistance of

         psychologists/social workers.

                      17. Learned counsel has though tried to take this

         Court through the evidences available on the record, but in the

         kind of submissions made, at the outset, which we have

         recorded herein-above, in our considered opinion, we should

         first consider the issue with regard to the procedures adopted by

         the learned Special Judge as any discussion on the merit of the

         evidence, in case the appellant succeeds on the very first

         ground, would cause prejudice to his case.

                      Submissions on behalf of the State and Informant.

                      18. Mr. Bipin Kumar, learned Additional Public

         Prosecutor for the State is present. Learned Additional Public

         Prosecutor having gone through the scheme of the statute of the

         J.J. Act does not contest the submissions that under the scheme

         of the statute, even as power has been conferred upon a Court to

         determine the age, the preliminary assessment in terms of

         Section 15 is only in the domain of the J.J. Board.

                 19. Mr. Sanjeev Kumar, learned counsel for the

         informant, having understood the issues canvassed by the

         learned counsel for the appellant does not contest the
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         submissions as above.

                 Consideration

                 20. Having regard to the submissions recorded, herein-

         above, and the materials which we have gone through, at this

         stage, in our considered opinion, the learned Special Judge,

         POCSO Act, proceeded to conduct the trial of the accused-

         appellant as an adult without following the established

         procedure of law. We would first extract the relevant provisions

         contained under J.J. Act. Sub-sections (12) and (13) of Section

         12 are extracted herein-below;

                                “2(12) “child” means a person who has not
                          completed eighteen years of age;
                                 2(13) “child in conflict with law” means a
                          child who is alleged or found to have committed
                          an offence and who has not completed eighteen
                          years of age on the date of commission of such
                          offence;”


                 21. Section 2(20) defines the Children’s Court as under;

                          “ Children’s Court” means a Court established
                          under the Commissions for Protection of Child
                          Rights Act, 2005 (4 of 2006) or a Special Court
                          under the Protection of Children from Sexual
                          Offences Act, 2012 (32 of 2012), wherever
                          existing and where such Courts have not been
                          designated, the Court of Sessions having
                          jurisdiction to try offencs under the Act;

                 22. Under chapter-III Section 9(2), a Court is empowered

         to determine the age of the person who is a child or was a child
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         on the date of commission of the offence. Section 9(2) reads as

         under;

                                 “9(2) In case a person alleged to have
                            committed an offence claims before a Court other
                            than a Board, that the person is a child or was a
                            child on the date of commission of the offence, or
                            if the Court itself is of the opinion that the person
                            was a child on the date of commission of the
                            offence, the said Court shall make an inquiry,
                            take such evidence as may be necessary (but not
                            an affidavit) to determine the age of such person,
                            and shall record a finding on the matter, stating
                            the age of the person as nearly as may be:
                                 Provided that such a claim may be raised
                            before any Court and it shall be recognised at any
                            stage, even after final disposal of the case, and
                            such a claim shall be determined in accordance
                            with the provisions contained in this Act and the
                            rules made thereunder even if the person has
                            ceased to be a child on or before the date of
                            commencement of this Act.”


                  23. Immediately after sub-section (2) of Section 9, sub-

         section (3) states that if the Court finds that a person has

         committed an offence and was a ‘child’ on the date of

         commission of such offence, it shall forward the ‘child’ to the

         Board for passing an appropriate orders. Once the records are

         transferred and the child is sent to the Board for passing an

         appropriate order, the Board is empowered to make an inquiry

         in relation to such child under Sections 17 and 18 of the J.J. Act.

         However, sub-section (3) of Section 14 states that a preliminary
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         assessment in case of heinous offence under Section 15 shall be

         disposed of by the Board within a period of three months from

         the date of first production of the child before the Board. This

         would bring us to Section 15 of the Act, which we reproduce

         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.
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                                 Provided further that the assessment under
                             this section shall be completed within the period
                             of specified in section 14.”

                 24. In the case of Barun Chandra Thakur (supra), the

         Hon’ble Supreme Court has opined that the Board must conduct

         the preliminary assessment under Section 15 of the J.J. Act with

         the assistance of experienced psychologists or psycho-social

         workers or other experts. In this case, no such exercise has been

         undertaken before the Board. The learned Special Judge took

         upon itself to just record in one line that the accused

         understands the circumstances and consequences of commission

         of the offence and therefore, he could be tried as an adult. This

         is where the learned Special Judge has committed a grave error

         and proceeded to discard the mandatory provisions of law. The

         relevant paragraph of the judgment is reproduced herein-below

         for a ready reference;

                          “32. Under the Juvenile Justice (Care and
                          Protection of Children) Model Rules, 2016
                          (hereinafter referred to as “the Model Rules”), it is
                          only Rule 10-A which refers to preliminary
                          assessment into heinous offences by the Board.
                          Sub-rule (1) mentions that the first thing to be
                          determined by the Board is the age of the child as
                          to whether he is below or above the age of 16
                          years which is to be done as per Section 14 of the
                          Act. Sub-rule (2) mentions that the Board may
                          take assistance of the experienced psychologists or
                          psycho-social workers or other experts who have
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                          experience of working with children in difficult
                          circumstances. It also provides that the District
                          Child Protection Unit would have a panel of such
                          experts to be made available to the Board for its
                          assistance or otherwise the Board could access
                          such experts independently. Sub-rule (3) declares
                          that the child shall be presumed to be innocent
                          unless proved otherwise while making the
                          preliminary assessment. Sub-rule (4) provides for
                          the consequential order to be passed by the Board
                          where it holds that the trial of the child is to be
                          carried out as an adult for which, it is required to
                          assign reasons and further to provide copy of order
                          to the child forthwith.

                 25. In fact, the scheme of the J.J. Act would further show

         that even after the Board forms an opinion that a child, who has

         completed and is just above 16 years and has committed heinous

         crime is required to be tried as an adult, the final say is that of

         the Children's Court. Section 19 lays down the powers of

         Children’s Court. We reproduce Section 19 of the J.J. Act,

         herein-below;

                              “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;
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                              (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 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.”

                 26. Section 21 Says that no child in conflict with law shall

         be sentenced to death or for life imprisonment without the

         possibility of release, for any such offence, either under the

         provisions of this Act or under the provisions of the Indian
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         Penal Code or any other law for the time being in force.

                 27. In the case of Lalu Kumar (supra), the Hon’ble

         Division Bench has considered the scheme of Sections 15 and

         18 of the J.J. Act. We would do no better than to reproduce those

         paragraphs here-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 18years 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 determines that the
                         child in conflict with law before it is above the age
                         of 16years, 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
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                         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.
                         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 areto
                         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.
                         104. It needs to be kept in mind at this juncture that
                         Section 14(3) of the Act of 2015 obligates that
                         preliminary assessment in case of ‘heinous
                         offences’ under Section 15 should be completed
                         within three months by the Board from the date of
                         first production of the child before the Board.
                         105. If the Board is satisfied on preliminary
                         assessment that the matter should be disposed of by
                         the Board then the Board shall follow the
                         procedures, as far as may be, for trial in summons
                         case under the CrPC. In case, the Board after
                         preliminary assessment under Section 15 of the Act
                         passes an order that there is need for trial of such
                         child as an adult, it may order for transfer of the
                         case to the Children’s Court having jurisdiction to
                         try such offence.
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                         115. Further Section 18(3) of the Act of
                         2015provides that where the Board, after
                         preliminary assessment under Section 15 of the Act
                         of 2015, comes to the conclusion that there is need
                         for trial of the child as an adult,it may order,
                         transfer of the trial of the case to the Children’s
                         Court having jurisdiction to try such offences.
                         116. The sixth question framed by us is in two
                         parts. The first part is “What is the scope of
                         Section19(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) and19(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 Rule13 (6) of the Rules.
                         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
Patna High Court CR. APP (DB) No.720 of 2023 dt.11-02-2026
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                         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.”

                 28. In our considered opinion, the impugned judgment

         and order suffers from serious infirmity as the mandatory

         procedures contained in Sections 15 and 19 of the J.J. Act have

         not been followed by the learned Special Judge. We, therefore,

         set aside the impugned judgment and order and remit the matter

         to the J.J. Board, Bettiah, West Champaran to start with the

         exercise under Section 15 of the J.J. Act and pass an appropriate

         order, in accordance with law, at the earliest, preferably, within a

         period of two months from the date of receipt of a copy of this

         judgment or in any case no longer the statutory period of three

         months.

                 29. The J.J. Board shall take assistance of the

         psychologist, psycho-social workers or any other experts in the

         assessment and would pass such order as the Board deems just

         and proper.

                 Further course of action will be consequential to the order

         passed by the learned J.J. Board.

                 30. Let the trial court records together with a copy of this
             Patna High Court CR. APP (DB) No.720 of 2023 dt.11-02-2026
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                      judgment be sent down to the learned trial court from where the

                      records shall be transmitted to the J.J. Board, Bettiah, West

                      Champaran within a week from the date of receipt of the

                      records.

                              31. The learned Principal District & Sessions Judge,

                      Bettiah, West Champarana shall ensure that the records are sent

                      to the J.J. Board within the given period through a special

                      messenger.

                              32. This appeal is allowed to the extent indicated herein-

                      above.

                              33. If occasions so arise, the fresh trial may be conducted

                      and it will be open to the appellant to make application for bail

                      before the competent court.




                                             (Rajeev Ranjan Prasad, J)


                                                  ( Praveen Kumar, J)


brajesh/-
AFR/NAFR
CAV DATE
Uploading Date          13.02.2026
Transmission Date       13.02.2026


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