Children's Court Must Verify If Child Can Be Tried As Adult Even If Juvenile Board Has Already Said So: Kerala High Court

The Kerala High Court held that the Children's Court has to conduct an inquiry as to whether a child can be tried as an adult even if the Juvenile Justice Board (Board) has already passed an order saying that the child can be tried so.For context, after the enactment of Juvenile Justice (Care and Protection of Children) Act, 2015 a child in the age group of 16 to 18 who is alleged of committing a heinous offence can be tried as an adult in certain specified circumstances on fulfilling certain specified criteria. In such a case before the Board, it has to conduct a preliminary assessment with regard to the child's mental or physical capacity to commit such offence, ability to understand the consequences of the offences and the circumstances in which he allegedly committed the offence. If the Board after preliminary assessment is satisfied that the child is to be tried as an adult, it shall transfer the case to Children's Court.Section 19 of the Act says that the Children's Court after receipt of the preliminary assessment from the Board may decide that there is a need to try the child as an adult or there is no need to try the child as an adult. The Division Bench of Justice Devan Ramachandran and Justice M. B. Snehalatha said that it is clear from the decision in Child in Conflict with law through his mother v State of Karnataka (2024) that it is mandatory that the Children's Court should conduct an inquiry to decide if the child deserves to be treated as an adult.“It is thus ineluctable that, even when a 'Board' passes an order under Section 18(3) of the Act – akin to the order impugned in this Revision – the Children's Court cannot proceed to try the child as an adult, but must conduct an inquiry to verify whether he can be subjected to. Even though Section 19 of the 'Act' employs the word 'may', the Child in Conflict with Law through his Mother (supra) makes it apodictic that it will have to be construed as 'shall'; and that the Children's Court' must conduct an enquiry to arrive at a decision whether the child deserves to be treated as an adult, taking into account the totality of circumstances, as also his/ her special needs and tenets of fair trial. This inquiry is imperative and can never be dispensed with by the Children's Court."The petitioner in the instant case was alleged of committing offences mentioned under Sections 354 (assault or criminal force to woman with intent to outrage her modesty), 451 (house trespass with intent to commit a crime), 342 (wrongful confinement), 506 (criminal intimidation), 376 (3) (rape on woman under 16 years of age), 376 (2)(n) (commits rape repeatedly on a woman) and various provisions of POCSO when he was just 16 years. The Board sent the matter to Children's Court with the order that the petitioner can be tried as an adult. The petitioner challenged the order of the Board by way of a review petition.The petitioner had argued that he directly approached the High Court, as he could appeal only before the Court of Session under Section 101(2) of the Act and thereby, he would have had to forego the inquiry by the Children's Court into whether he can be tried as an adult. The Court however rejected this argument saying that the Supreme Court in Child in Conflict with Law through his Mother had declared that the Children's Court and Court of Session are one and the same and the former had to be preferred wherever it is established. The Court further observed that when the Children's Court/ Sessions Court act as an Appellate Court, it has to take the assistance of experienced psychologists or medical specialists who shall be different from whose assistance were sought by the Board. The Court added that the Board has to adopt the same procedure, whether it is considering the report from the Board or considering an appeal against the order of the Board that the child can be tried as an adult.The petitioner argued that the order of the Board is void as it was passed without taking the assistance of experienced Psychologists or Psycho social Workers and other experts as is statutorily mandated by the Act. The Court rejected this argument noting that in the order the Board mentioned that it has relied upon a 'Social Investigation Report' and 'Counselling Report' and then have conducted a personal assessment of the petitioner. The Court said that one it is satisfied that the essential requirements have been met prima facie it is up to the Appellate Court to decide on the sufficiency of the procedure followed.On these observations, the petition was dismissed.Case No: RPJJ 3/ 2024Case Title: XX v The State of Kerala and AnotherCitation: 2025 LiveLaw (Ker) 63Click Here To Read/ Download Order

Children's Court Must Verify If Child Can Be Tried As Adult Even If Juvenile Board Has Already Said So: Kerala High Court

Manju Elsa Isac

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