JJ Act | 'May' In S. 19(1) Be Read As 'Shall'; Children's Court Must Hold Inquiry On Whether Child Should Be Tried As Adult: Supreme Court

The Supreme Court recently held that compliance with Section 19(1) subclause (i) of the Juvenile Justice (Care and Protection of Children) Act, 2015 which requires the Children’s Court to hold an inquiry as to whether the alleged offender is to be tried as a child or an adult is not a mere formality.

In this regard, the Court also said that the use of the word 'may' used in Clause (ii) of sub-section 1 of Section 19, will have to be read as 'shall'.

Under Section 19(1) (i) of the JJ Act, the children's Court is to conduct an inquiry to decide whether there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973. The Court held that the inquiry under Section 18(3) of the JJ Act is only a preliminary assessment to pass an order for transferring the trial of the case to the Children's Court and that further assessment under Section 19(1)(i) is required regarding the same.

“The observation of the High Court that the order passed under sub-section (3) of Section 18 has attained finality completely ignores that the order under sub-section (3) of Section 18 is not a final adjudication on the question of trying the child as an adult. The reason is that the order under sub-section (3) of Section 18 is based on a preliminary assessment made under Section 15. As such order is based only on a preliminary assessment, the law provides for a further inquiry in terms of sub-section (1) of Section 19 by the competent Children’s Court. Hence, the Children’s Court cannot brush aside the requirement of holding an inquiry under clause (i) of sub-section (1) of Section 19,” a bench of Justice Abhay S Oka and Justice Pankaj Mithal. 

In the matter at hand, on the basis of an order passed under Section 18(3) of the JJ Act, the Juvenile Justice Board transferred the case to the jurisdictional Children’s Court. When this was challenged in the High Court, it was held that only after complying with the requirement of making an assessment under Section 15 (Preliminary assessment into heinous offences by Board ) of the JJ Act, an order was passed under sub-section (3) of Section 18 of the JJ Act. Based on the preliminary assessment under Section 18(3) the JJ Board can pass an order for transferring the trial of the case to the Children's Court that has jurisdiction to try such offences.

The Apex Court held that the order of transfer under Section 18 is based only a preliminary assessment.

“..holding an inquiry in terms of clause (i) of sub-section 1 of Section 19 is not an empty formality. The reason is that if the Children's Court comes to the conclusion that there is no need to try the child as an adult, he will be entitled to be treated differently in the sense that action can be taken against him only in terms of Section 18 of the JJ Act,” the Apex Court held.

The Court thus set aside the impugned orders and directed the Special Court to comply with the requirement of sub-section 1 of Section 19 of the JJ Act.

Case Title: Ajeet Gurjar V. The State Of Madhya Pradesh, Criminal Appeal No.3023 of 2023

Citation : 2023 LiveLaw (SC) 857

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