Summary
A child aged about 16 and a half at the time of a murder was, after the Juvenile Justice Board's preliminary assessment under Section 15 of the JJ Act, 2015, tried as an adult and convicted under Section 302 IPC by the Children's Court without that Court passing any order under Section 19(1). Holding Section 19(1) mandatory and its non-compliance fatal to the whole trial, the Supreme Court set aside the conviction, declined to remit given the appellant's present age and six years' incarceration, and acquitted him.
Issues
- Whether passing an order under Section 19(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 on whether to try the child as an adult is mandatory for the Children's Court.
- Whether a conviction and sentence of a child in conflict with law tried as an adult can be sustained in the absence of an order under Section 19(1).
- Whether the matter should be remitted to the Children's Court for compliance.
Provisions considered
- Section 19(1), Juvenile Justice (Care and Protection of Children) Act, 2015Although it says the Children's Court 'may decide', the word was read as 'shall': on receipt of the Board's preliminary assessment, the Children's Court must pass a reasoned order whether the child is to be tried as an adult (Sessions procedure) or not (inquiry as a Board under summons procedure). The provision is substantive and jurisdictional; without the order the trial is vitiated. (¶¶ 5, 6, 8, 10.1, 10.2, 10.3, 10.3.1, 10.3.2, 10.3.3, 10.8, 12, 14, 15)
- Sections 15 and 18(3), Juvenile Justice (Care and Protection of Children) Act, 2015The Board must make a preliminary assessment of a child aged 16 to 18 alleged to have committed a heinous offence and, if it finds a need for adult trial, may transfer the case to the Children's Court; here these steps had been complied with. (¶¶ 2.5, 4, 9.2, 12)
- Section 8(2), Juvenile Justice (Care and Protection of Children) Act, 2015Relied on to show that the Children's Court exercises the Board's powers when proceedings come before it under Section 19, including an inquiry under Section 19(1)(ii) where it decides not to try the child as an adult. (¶ 10.4.3)
- Sections 18(1), 18(2) and 21, Juvenile Justice (Care and Protection of Children) Act, 2015Contrasted to show the different outcomes: a child dealt with as a child faces at most three years in a special home and other Section 18 measures, while a child tried as an adult may receive heavier sentences subject to Section 21; this difference makes the Section 19(1) determination critical. (¶ 10.5)
- Rule 13(1), (6), (7) and (8), Juvenile Justice (Care and Protection of Children) Model Rules, 2016Rule 13(6) obliges the Children's Court to record reasons for treating the child as an adult or a child, and Rules 13(7) and 13(8) prescribe different procedures for each course, confirming that Section 19(1) is mandatory. (¶¶ 10.4, 10.4.1, 10.4.2)
Held
- The 'may' in Section 19(1) of the JJ Act must be read as 'shall'. After taking cognizance on transfer under Section 18(3), the Children's Court must first pass a reasoned order deciding whether the child is to be tried as an adult; it acquires jurisdiction to conduct an adult (Sessions) trial only on recording that satisfaction, and otherwise must inquire as a Board under summons procedure. (¶¶ 10.2, 10.3, 10.3.1, 10.3.2, 10.3.3, 10.8)
- Rule 13 of the Model Rules, which requires recorded reasons and prescribes distinct procedures, and Section 8(2) of the Act confirm that Section 19(1) is a substantive provision requiring due application of mind, not a mere formality (following Ajeet Gurjar and Barun Chandra Thakur). (¶¶ 10.4, 10.4.1, 10.4.2, 10.4.3, 10.6, 10.7)
- Because a child dealt with as a child can be detained for at most three years while a child tried as an adult may face heavier punishment and lasting consequences, even a remote possibility that a child who should be treated as a child is tried as an adult strikes at the root of the Act; that the sentence might have been the same does not cure non-compliance. (¶ 10.5)
- Following Thirumoorthy, non-compliance with Section 19(1) vitiates the entire trial even where Section 15 was complied with; the Court could not instead reduce the sentence to the period undergone or to three years. (¶¶ 11, 12)
- Remand was declined because a meaningful assessment of the appellant's mental capacity at the time of the offence was no longer feasible when he was 24 and had already served more than six years. (¶ 13)
- Children's Courts across the country were directed that, on receiving records transferred under Section 18(3), their first duty after taking cognizance is to pass a reasoned order under Section 19(1) before proceeding further. (¶ 15)
Result
Appeal allowed; conviction under Section 302 IPC and sentence by the Children's Court, affirmed by the High Court, set aside for non-compliance with Section 19(1); appellant acquitted and bail bonds discharged; general direction issued to Children's Courts.