REDACTED vs The State Of Bihar
- Court
- Supreme Court
2026 INSC 728
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3299 OF 2026
[Arising out of SLP (Crl.) No. 5633 of 2026]
X …APPELLANT
VERSUS
STATE OF BIHAR & ANR. …RESPONDENTS
J U D G M E N T
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2026.07.21
15:59:07 IST
Reason:
J.B. PARDIWALA, J.
For the convenience of exposition, this judgment is divided into
the following parts:-
INDEX
I. FACTUAL MATRIX .................................................................... 2
II. SUBMISSIONS ON BEHALF OF APPELLANT ..............................7
III. SUBMISSIONS ON BEHALF OF THE RESPONDENTS ................8
IV. ISSUES FOR CONSIDERATION ................................................ 9
V. ANALYSIS .............................................................................. 10
A. Classification of Offences .................................................................... 11
B. Section 101(2) of the JJ Act – Mandatory or Directory .........................20
C. Considerations before the Board while carrying out preliminary
assessment ............................................................................................. 33
a. Social Background Report ................................................................41
b. Social Investigation Report ...............................................................41
c. Statement of Witness ........................................................................42
d. Report of the Expert .........................................................................42
VI. CONCLUSION ........................................................................ 46
SLP (Crl.) No. 5633 of 2026 Page 1 of 46
1. Leave granted.
2. This appeal arises from the judgment and order passed by
the High Court of Judicature at Patna dated 24.07.2025 in
Criminal Revision No. 300 of 2024 (hereinafter, “ the
”) by which the High Court dismissed
impugned judgment
the revision application preferred by the appellant herein
and thereby affirmed the judgment and order passed by the
Additional District and Sessions Judge, Chapra in Crl.
Juvenile Appeal No. 29 of 2022 holding that there is a need
for trial of the appellant as an adult, and accordingly
directing the Juvenile Justice Board (hereinafter, “ the JJ
”) to transfer the trial of the Juvenile Case No. 1838 of
Board
2022 to the Children’s Court.
3. In conformity with the mandate of Section 74 of the Juvenile
Justice (Care and Protection of Children) Act, 2015 (for short,
“ the JJ Act ”), the identity of the appellant has been
concealed throughout the judgment.
I. FACTUAL MATRIX
4. It appears from the materials on record that the complainant,
mother of the deceased, filed a complaint with the police
stating that on 01.05.2022 at about 10 AM, the deceased
had gone outside with the appellant and one another boy in
a vehicle. Thereafter, at about noon, the deceased’s mobile
phone was found to be switched off. The complainant started
searching for her son but he was not found anywhere. On
SLP (Crl.) No. 5633 of 2026 Page 2 of 46
02.05.2022, at about 7 AM, the complainant was informed
by some cowherds that a dead body of a boy had been found
in the fields. When the complainant reached the spot, she
identified the dead body to be that of her son. She named
the appellant and the other boy as prime suspects.
5. In such circumstances, the said complaint was reduced in
the form of a First Information Report and was numbered as
Cr. No. 72 of 2022 with the Kopa Police Station for the
offence under Sections 302, 201 read with Section 34 of the
Indian Penal Code, 1860, respectively (for short, “ the IPC ”).
6. Upon completion of the investigation and filing of the
chargesheet against the appellant and one another juvenile
for the offences enumerated above, the appellant raised the
plea of juvenility as per Section 9 of the JJ Act. Thereafter,
Magistrate forwarded the child along with the record of the
proceedings to the Board.
7. The jurisdictional Board determined the age of the appellant
to be 16 years 4 months on the date of commission of the
alleged crime. As a result, the appellant was declared
juvenile under Section 94(2)(i) of the JJ Act. Thereafter, the
JJ Board called for the Social Investigation Report (SIR) and
Social Background Report (SBR), respectively, of the
appellant.
SLP (Crl.) No. 5633 of 2026 Page 3 of 46
8. The record reveals that the appellant was apprehended while
he was attempting to flee. The alleged role of the appellant in
the offence was that he slit the throat of the deceased with a
knife. The weapon used in the commission of the offence was
discovered at the behest of the appellant during the
investigation.
9. As the case was allegedly for the offence under Sections 302,
201 r/w Section 34 of the IPC, respectively, and the
appellant was above the age of 16 years, the JJ Board
conducted the preliminary assessment under Section 15 of
the JJ Act.
10. From the perusal of the questions asked and the answers
given by the appellant, the counselling report, and the social
investigation report, respectively, the majority opinion of the
JJ Board observed that the case of the appellant be disposed
of by the Board itself as the appellant did not have the
mental and physical capacity to commit the alleged offence.
Whereas, the minority opinion by the Presiding Magistrate
was in the negative. The Presiding Magistrate disagreed with
the majority opinion. It was recorded that the appellant had
been found capable to understand the act done by him. As a
result, he should be tried as an adult.
11. The complainant being dissatisfied with the decision of the
JJ Board preferred Crl. Juvenile Appeal No. 29 of 2022
before the Additional District and Sessions Judge-XII, Civil
SLP (Crl.) No. 5633 of 2026 Page 4 of 46
Court Saran at Chapra. The Appellate Court vide order dated
21.12.2023 set aside the order of the JJ Board and held that
the appellant be tried as an adult.
12. The appellant questioned the legality and validity of the
aforesaid order by filing Criminal Revision No. 300 of 2024
before the High Court substantially on the ground that while
deciding the appeal, the Appellate Court failed to take
assistance of experienced psychologists and medical
specialists in terms of Section 101(2) of the JJ Act.
13. The High Court adjudicated the criminal revision application
filed by the appellant and dismissed the same
vide the
impugned judgment and order dated 24.07.2025. The order
reads thus:-
“ The father of the Juvenile has filed the instant
criminal revision under Section 102 of the
Juvenile Justice (Care and Protection of Children)
st
Act, 2015, challenging an order dated 21
December 2023, passed by the learned Additional
District Judge XII, Civil Court, Saran at Chapra on
st
21 December 2023. In Criminal Juvenile Appeal
No. 29/2022, instituted against the order passed
by the Juvenile Justice Board, Saran at Chapra,
th
an order was passed on 24 June 2022, holding,
inter alia, that the CiCL was aged about 16 years
4 months on the date of commission of the alleged
offence. Since the offence alleged against the
petitioner was committed under Sections
302/201/34 IPC, the Board made a preliminary
assessment of a heinous offence as provided by
Section 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2015. After
preliminary assessment, with regard to the
SLP (Crl.) No. 5633 of 2026 Page 5 of 46
mental and physical capacity of the juvenile’s
ability to understand the consequence of the
offence and the circumstances in which he
allegedly committed the offence, the Board, on
majority, passed an order that, although the
petitioner was more than 16 years of age on the
date of commission of the offence, his mental
ability was not at par with his age, and therefore
the Board decided to try the case on its own.
2. The informant filed an appeal against the
aforesaid decision, which was registered as
Criminal Juvenile Appeal No. 29/2022. The said
appeal was taken up for hearing by the learned
Additional Sessions Judge XII, Saran at Chapra.
The appellate court found that the offence
allegedly committed by the CiCL along with a co-
accused was heinous in nature. Secondly, the
appellate court held that the juvenile had no
interest in his life; he did not care to die and he is
a follower of ‘Ravana’. The Children’s Court
further held that the counselor reported that the
juvenile had no proper understanding of the
offence. However, the court of appeal found that
the Board decided the issue without considering
the report of the counselor. Therefore, the
Children’s Court allowed the appeal, set aside the
order passed by the Board and remitted back the
case to the Board directing it to proceed with the
case regarding prescribed trial procedure in
accordance with law.
3. It is submitted by the learned Advocate for the
petitioner that the petitioner is aggrieved against
the said order passed by the appellate court
without making the preliminary assessment into a
heinous offence under Section 15 of the Act and
the appellate court while deciding the appeal
failed to take assistance of experienced
psychologists, medical specialists, other than
those whose assistance have been obtained by
SLP (Crl.) No. 5633 of 2026 Page 6 of 46
the Board in passing the order under the said
Section.
4. The learned Advocate on behalf of the opposite
party, on the other hand, submits that, after the
st
impugned order dated 21 December 2023 was
passed, the Board transferred the case to the
Children’s Court, the trial against the petitioner
commenced, charges were framed, and five
witnesses have been examined. At this stage, the
instant revision becomes infructuous.
5. I have duly considered the subsequent
development of the case. It is further found from
the record that, while the CiCL was in the
Children’s Home, he, along with three other CiCLs,
committed the murder of the guard of the said
home. The subsequent fact is also taken into
consideration by this Court. Since the trial of the
case has already commenced, I do not find any
merit in the instant criminal revision.
6. Accordingly, the instant criminal revision is
dismissed on contest. There shall, however, be no
order as to costs. ”
II. SUBMISSIONS ON BEHALF OF APPELLANT
14. Mr. Kailas Bajirao Autade, the learned counsel appearing for
the appellant would submit that the case of the appellant
falls within the definition of “serious offence” under Section
2(54)(b) and not under “heinous offence” under Section 2(33)
of the JJ Act. He submitted that since the alleged offence is
punishable under Sections 302, 201 r/w 34 of the IPC,
respectively, where the maximum sentence is more than
seven years but no minimum sentence is provided or
minimum sentence of less than seven years is provided, the
SLP (Crl.) No. 5633 of 2026 Page 7 of 46
case of the appellant must be treated as one of “serious
offence”.
15. He further submitted that the Appellate Court while deciding
the appeal failed to follow the mandatory procedure, as laid
down in Section 101(2) of the JJ Act, of taking assistance of
experienced psychologists and medical specialists to assess
the mental and physical capacity of the juvenile. To fortify
his submission, he relied on the decision of this Court in
v , reported in (2023) 12
Barun Chandra Thakur . Bholu
SCC 401 .
16. In such circumstances referred to above, the learned counsel
would submit that there being merit in his appeal, the same
may be allowed and the impugned judgment passed by the
High Court may be set aside.
III. SUBMISSIONS ON BEHALF OF THE RESPONDENTS
17. Mr. Samir Ali Khan, the learned counsel appearing for the
State of Bihar would submit that since imprisonment for life
constitutes a minimum sentence of more than 7 years, the
alleged offence under Section 302 would qualify as a
“heinous offence” under Section 2(33) of the JJ Act.
18. In addition to the aforesaid submission, Mr. Prashant
Bhardwaj, the learned counsel appearing for the
complainant mother would submit that the decision of this
Court in v , reported in
Shilpa Mittal . State (NCT) of Delhi
SLP (Crl.) No. 5633 of 2026 Page 8 of 46
(2020) 2 SCC 787 , requires reconsideration. He argued that
if the fourth category of offences i.e., where the maximum
sentence is more than seven years but minimum sentence is
less than seven years or there is no minimum sentence
prescribed, are dealt as “serious offence” then it would cause
grave injustice.
19. In the same breath, Mr. Bhardwaj submitted that the
“minimum punishment” threshold in the definition of the
“heinous offence” under Section 2(33) of the JJ Act must be
construed as “at the very least”. He further submitted that
severity of the offence could be seen by the punishment
provided under Section 302 i.e., punishment of death or
imprisonment for life.
20. In the last, both the learned counsel submitted that no error,
not to speak of any error of law, could be said to have been
committed by the High Court in passing the impugned
judgment and order.
IV. ISSUES FOR CONSIDERATION
21. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the
following questions fall for our consideration:-
a. Whether an offence prescribing punishment of “ death or
imprisonment for life ” could be said to be an offence
falling within the phrase “ maximum imprisonment for a
SLP (Crl.) No. 5633 of 2026 Page 9 of 46
term more than seven years but no minimum
imprisonment ” under Section 2(54) of the JJ Act?
may
b. Whether, the expression, “ ” used in sub-section (2) of
Section 101 of the JJ Act should be construed as
mandatory or directory?
c. What type of material and other factors should be
considered by the Juvenile Justice Board while
conducting a preliminary assessment under Section 15 of
the JJ Act?
V. ANALYSIS
22. It is apposite to take notice of the Statement of Object and
Reasons of the JJ Act, more particularly, the purpose behind
introducing the Act. The legislature, in enacting the JJ Act,
acknowledged the rise in the number of juveniles in conflict
with law and the manifest inadequacy of the existing regime
to address the complexities of such cases. In such
circumstances, the legislature thought it fit to treat the
children between the age of 16-18 years as a separate class
so as to balance the rehabilitative rights of the juvenile on
one hand, and the broader interest of societal deterrence on
the other.
23. In the aforesaid context, we must acknowledge that children
today are exposed at an early age to complex information,
graphic content, and adult experience that were inaccessible
SLP (Crl.) No. 5633 of 2026 Page 10 of 46
to previous generations. There is no doubt that proliferation
of technology and the pervasive influence of social media has
altered the cognitive and psychological development of
children.
24. In such circumstances referred to above, courts as living
institutions must be responsive to this reality. The approach
of courts, or the juvenile justice boards dealing with a child
in conflict with law cannot remain stagnant since the
legislation came to be enacted. It must bear a balanced
approach towards the evolving nature of juvenile and
legitimate demands of the society.
A. Classification of Offences
25. This Court in Shilpa Mittal ( supra ) took note of the gap in
the statutory framework of the JJ Act. It recognized the
fourth category of offences i.e., offences where the minimum
sentence is less than seven years, or there is no minimum
sentence prescribed but the maximum sentence is more
than seven years, and suggested its inclusion within the
definition of “serious offence”. After the decision, the
legislature thought it fit to include the fourth category of
offences as clause (b) of sub-section 54 of Section 2 of the JJ
Act through the Juvenile Justice (Care and Protection of
Children) Amendment Act, 2021 (“ ”). The
2021 Amendment
provision prior and subsequent to the 2021 Amendment
read thus:-
Prior to the
amendment
Subsequent to the
amendment
SLP (Crl.) No. 5633 of 2026 Page 11 of 46
(54) “serious offences”
includes the offences
for which the
punishment under the
Indian Penal Code or
any other law for the
time being in force, is
imprisonment between
three to seven years .
(54) “serious offences”
includes the offences for which
the punishment under the
Indian Penal Code (45 of
1860.) or any other law for the
time being in force, is,—
(a) minimum imprisonment for
a term more than three years
and not exceeding seven
years; or
(b) maximum imprisonment for
a term more than seven years
but no minimum
imprisonment or minimum
imprisonment of less than
.
seven years is provided
26. At the cost of repetition but for better exposition, we must
now look into the definitions of “petty offences”, “serious
offences” and “heinous offences”, respectively, as provided
under the JJ Act. It reads thus:-
“ 2. In this Act, unless the context otherwise
requires,—
(33) “heinous offences” includes the offences for
which the minimum punishment under the Indian
Penal Code or any other law for the time being in
force is imprisonment for seven years or more;
xxx
(45) “petty offences” includes the offences for
which the maximum punishment under the Indian
Penal Code or any other law for the time being in
force is imprisonment up to three years;
xxx
(54) “serious offences” includes the offences for
which the punishment under the Indian Penal
SLP (Crl.) No. 5633 of 2026 Page 12 of 46
Code (45 of 1860.) or any other law for the time
being in force, is,—
(a) minimum imprisonment for a term more
than three years and not exceeding seven
years; or
(b) maximum imprisonment for a term more
than seven years but no minimum
imprisonment or minimum imprisonment of
less than seven years is provided.’. ”
27. The JJ Act categorizes offences into three categories, namely
petty, serious, and heinous based on the term of
imprisonment prescribed for each offence. In such
circumstances, to determine the category of an offence, the
first question to be asked is what is the minimum
punishment prescribed for the offence.
I. If the minimum punishment is seven years or more, the
offence straightaway qualifies as a
heinous offence
under Section 2(33) of the JJ Act.
II. Whereas, if the minimum punishment is less than seven
years, or no minimum punishment is prescribed at all,
one must then look at the maximum punishment
prescribed for the offence.
i. If the maximum punishment is up to three years, the
offence qualifies as a under Section
petty offence
2(45) of the JJ Act.
ii. If the maximum punishment is more than three years,
the offence qualifies as a serious offence under
Section 2(54) of the JJ Act, which is further divided
into two clauses:-
SLP (Crl.) No. 5633 of 2026 Page 13 of 46
a. Where the minimum punishment prescribed is
more than three years and up to seven years;
b. Where the maximum punishment is more than
seven years but either no minimum punishment is
prescribed, or the minimum punishment prescribed
is less than seven years.
28. The following flowchart would further elucidate the
classification of offences under the Act.
SLP (Crl.) No. 5633 of 2026 Page 14 of 46
29. The learned counsel appearing for the appellant herein
vehemently contended that the appellant is alleged to have
committed offence under Sections 302, 201 r/w 34 of the
IPC, respectively, which fall in the fourth category of the
SLP (Crl.) No. 5633 of 2026 Page 15 of 46
offences as described by the decision in
Shilpa Mittal
( supra ), which now find its place in clause (b) of Section 2(54)
of the JJ Act. In other words, the alleged offence must be
treated as a serious offence under the JJ Act, as Section 302
does not prescribe a minimum punishment.
30. We are of the considered opinion that the contention put
forth by the learned counsel on behalf of the appellant is
completely misconceived, meritless, inconceivable and
deserves to be rejected at the threshold.
31. The question that falls for our consideration is whether
Section 302 of the IPC, now, Section 103(1) of the Bharatiya
Nyaya Sanhita, 2023, which prescribes punishment of
“ death or imprisonment for life ”, could be said to be an
offence falling within the expression “ where the maximum
imprisonment being more than seven years but no minimum
imprisonment has been prescribed ”.
32. We would be stating the obvious that a court convicting an
accused of an offence under Section 302 of the IPC cannot
impose any lesser sentence than imprisonment for life. The
statute does not provide any discretion to the courts to
award any punishment below imprisonment for life. Thus,
life imprisonment is, by implication, the minimum
punishment prescribed under Section 302 of the IPC. [See:
Babasaheb Maruti Kamble v . State of Maharashtra ,
SLP (Crl.) No. 5633 of 2026 Page 16 of 46
(2019) 13 SCC 631 ; v
The State of Madhya Pradesh .
Nandu @Nandua , Crl. Appeal No. 1356/2022 ]
33. Even if we attempt to look at the aforesaid submission from
one another angle, it falls flat on its face. Could it be said
that because of the use of the disjunctive “or” between
“death” and “imprisonment for life” in Section 302, there is
no minimum punishment prescribed. The answer is an
emphatic ‘No’. We say so because the word “or” merely
confers upon the court the discretion to choose between the
two punishments having regard to the gravity of the offence.
It does not open any avenue for the imprisonment to be
lesser than imprisonment for life.
34. In the aforesaid context, the reliance placed by the appellant
on the decision of this Court in Shilpa Mittal ( supra ) is also
misconceived. The fourth category of offences carved out by
this Court were intended to address offences where no
minimum sentence is prescribed or where the minimum
sentence is less than seven years. It refers to those
provisions where the courts have discretion to impose
sentence below seven years. In other words, it was a
remedial measure to ensure that offences which were left
unaddressed between the category of “serious” and “heinous”
due to their sentencing structure were not left unclassified.
Section 302 is not such a provision.
SLP (Crl.) No. 5633 of 2026 Page 17 of 46
35. It is a well settled rule that simply because the legislature
prescribed the punishment without using the word
“minimum”, it cannot be said that no minimum punishment
exists. In interpreting a provision, legislative drafting style
cannot override the object of the provision.
36. Thus, we have no hesitation in saying that an offence
punishable under Section 302 cannot be placed in the same
category as offences which do not prescribe any minimum
sentence under the definition of “serious offence” under
Section 2(54) of the JJ Act.
37. One very unusual contention was raised by the learned
counsel appearing for the appellant as regards classification
of offence punishable under Section 302 as “serious offence”.
It was urged that since Section 302 prescribes punishment
in terms of either death or imprisonment for life and Section
21 of the JJ Act provides that no child in conflict with law
can be sentenced to death or to imprisonment for life
without the possibility of release, the maximum
imprisonment which can be awarded would be read as per
Section 433A of Code of Criminal Procedure, 1973. The
argument is that since a juvenile cannot be confined for the
remainder of his natural life, life imprisonment cannot be
said to be the minimum punishment under Section 302 for
the purposes of classifying the offence as a “heinous offence”.
According to the learned counsel, the definition of life
imprisonment would be transposed to the maximum
SLP (Crl.) No. 5633 of 2026 Page 18 of 46
imprisonment of 14 years, and hence, the offence under
Section 302 would fall within the expression, “ maximum
punishment is more than seven years but either no minimum
punishment is prescribed
”.
38. We do not find any merit in the aforesaid submission
canvassed on behalf of the appellant herein.
39. The plain reading of the provision indicates that what it
proscribes is the imposition of the sentence of life
imprisonment without the possibility of release. It does not
bar the award of the sentence of imprisonment for life
altogether. What it means is that the provision does not
erase or modify the punishment prescribed under Section
302 of the IPC, rather it modulates the manner in which that
punishment is to be served in the case of a juvenile. What
Section 21 ensures is that a juvenile is not incarcerated for
the entirety of his natural life in order to give him a chance
to participate in the mainstream.
40. Although, the sentence awarded would be subject to Section
21 of the JJ Act, yet it automatically does not mean that the
classification of the offence is to be determined reference to
the period of premature release or the completion of 14 years
of imprisonment. The benefit conferred by Section 21
operates specifically at the stage of sentencing. It comes into
picture once the guilt is determined and the court has to
decide upon the sentence to be imposed. It cannot be
SLP (Crl.) No. 5633 of 2026 Page 19 of 46
imported into the question of classification of offences for the
purposes of determining the forum of trial. Categorization or
classification deals with what punishment the offence would
ordinarily yield under the statute. To conflate the two would
be to confuse the nature of the offence with the consequence
to be faced by the offender.
41. The contention raised by the learned counsel appearing for
the respondent that the decision of this Court in Shilpa
( supra ) requires reconsideration is also rejected. The
Mittal
decision merely identified a lacuna in the statutory
framework and declared the law, which the legislature itself
accepted and formally codified within the definition of
“serious offence” under Section 2(54) of the JJ Act. The
contention is absurd to say the least, since Section 302 falls
squarely within the definition of “heinous offence”, placing it
beyond the ambit of the fourth category of offences
contemplated by Shilpa Mittal ( supra ).
B. Section 101(2) of the JJ Act – Mandatory or Directory
42. Before adverting to the rival submissions canvassed on
either side, we must look into the relevant provision. Section
101 of the JJ Act reads as follows:-
“ 101. (1) Subject to the provisions of this Act, any
person aggrieved by an order made by the
Committee or the Board under this Act may,
within thirty days from the date of such order,
prefer an appeal to the Children’s Court, except
for decisions by the Committee related to Foster
Care and Sponsorship After Care for which the
appeal shall lie with the District Magistrate:
SLP (Crl.) No. 5633 of 2026 Page 20 of 46
Provided that the Court of Sessions, or the
District Magistrate, as the case may be, may
entertain the appeal after the expiry of the said
period of thirty days, if it is satisfied that the
appellant was prevented by sufficient cause from
filing the appeal in time and such appeal shall be
decided within a period of thirty days.
(2) An appeal shall lie against an order of the
Board passed after making the preliminary
assessment into a heinous offence under section
15 of the Act, before the Court of Sessions and the
Court may, while deciding the appeal, take the
assistance of experienced psychologists and
medical specialists other than those whose
assistance has been obtained by the Board in
passing the order under the said section.
(3) No appeal shall lie from,—
(a) any order of acquittal made by the Board
in respect of a child alleged to have committed
an offence other than the heinous offence by a
child who has completed or is above the age of
sixteen years; or
(b) any order made by a Committee in respect
of finding that a person is not a child in need
of care and protection.
(4) No second appeal shall lie from any order of
the Court of Session, passed in appeal under this
section.
(5) Any person aggrieved by an order of the
Children’s Court may file an appeal before the
High Court in accordance with the procedure
specified in the Code of Criminal Procedure,
1973. ”
(Emphasis is ours)
SLP (Crl.) No. 5633 of 2026 Page 21 of 46
43. The learned counsel appearing for the appellant herein
vehemently submitted that the Appellate Court committed
an egregious error by not taking assistance of experienced
psychologists and medical specialists which is mandatory
under the provision of Section 101(2) of the JJ Act. In this
context, the learned counsel submitted that the issue is
squarely covered by the decision of this Court in Barun
( supra ) wherein this Court has said in so
Chandra Thakur
many words that proviso to Section 15(1) is mandatory, and
the Board would be obliged to take assistance of
psychologists or psycho-social workers where the Board does
not comprise of a professional with a degree in child
psychology or child psychiatry.
44. The learned counsel laid much emphasis on the
observations made by this Court in Barun Chandra
( supra ) as contained in paragraphs 79 and 83 of the
Thakur
judgment respectively. Taking a clue from the observations
made by this Court in the aforementioned paragraphs, the
learned counsel submitted that proviso to Section 15(1)
would apply mutatis mutandis to Section 101(2). This,
according to the learned counsel, casts a duty on the
Appellate Court to take assistance of experienced
psychologist and medical specialists while deciding the
appeal.
SLP (Crl.) No. 5633 of 2026 Page 22 of 46
45. At this stage, we may refer to the relevant observations made
by this Court in Barun Chandra Thakur ( supra ) on this
issue. It reads thus:-
79. As already noticed, the Board consists of
“
three members, one is a Judicial Officer First
Class and two social workers, one being a woman.
The social worker appointed as a member could
be having a degree in child psychology or
psychiatry but it is not necessary. As such, the
constitution of the Board may not necessarily be
having an expert child psychologist. It is for all the
above reasons that it has been provided not only
in Sections 15 and 101(2) but also under the
Model Rules that assistance may be taken from
an expert psychologist. Having regard to the
framework of the 2015 Act and the Model Rules
and the purpose of preliminary assessment in
terms of Section 15 as also looking to the varied
composition of the Board, we are of the view that
where the Board is not comprising of a practising
professional with a degree in child psychology or
child psychiatry, the expression “may” in the
proviso to Section 15(1) would operate in
mandatory form and the Board would be obliged
to take assistance of experienced psychologists or
psycho-social workers or other experts. However,
in case the Board comprises of at least one such
member, who has been a practising professional
with a degree in child psychology or child
psychiatry, the Board may take such assistance
as may be considered proper by it; and in case
the Board chooses not to take such assistance, it
would be required of the Board to state specific
reasons therefor.
xxx
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
SLP (Crl.) No. 5633 of 2026 Page 23 of 46
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. ”
(Emphasis is ours)
46. The reliance placed by the learned counsel on the decision in
( supra ) to extend the mandatory
Barun Chandra Thakur
character of the proviso to Section 15(1) to Section 101(2) of
the JJ Act is, in our considered opinion, misconceived for
more than one reason.
47. First , on a plain reading, it is limpid that Section 101(2) does
not, by its own language, incorporate or import the proviso to
Section 15(1). Sub-section (2) of Section 101 stipulates two
things. First , an appeal against an order of the Board under
Section 15 would lie before the Sessions Court. Secondly,
while deciding the said appeal, the Court may take
assistance of psychologists, medical specialists, or other
experts other than those whose assistance has been
obtained by the Board.
48. At this stage, we may address ourselves on whether the word
“may” in Section 101(2) should be construed to mean “shall”
in this context. The first rule in interpreting a statute is that
SLP (Crl.) No. 5633 of 2026 Page 24 of 46
regard must be had to the language employed by the statute.
This rule may be supplanted upon a consideration of the
intention of the legislature, which could be ascertained from
the nature and design of the enactment, and the
consequences flowing from construing it one way or the
other. This was conveyed by the Constitution Bench decision
in State of U.P. v . Babu Ram Upadhya , reported in 1960
. The relevant observations read thus:-
SCC OnLine SC 5
“ 29. The relevant rules of interpretation may be
briefly stated thus : When a statute uses the word
“shall”, prima facie, it is mandatory, but the Court
may ascertain the real intention of the legislature
by carefully attending to the whole scope of the
statute. For ascertaining the real intention of the
Legislature the Court may consider, inter alia, the
nature and the design of the statute, and the
consequences which would follow from construing
it the one way or the other, the impact of other
provisions whereby the necessity of complying
with the provisions in question is avoided, the
circumstance, namely, that the statute provides
for a contingency of the non-compliance with the
provisions, the fact that the non-compliance with
the provisions is or is not visited by some penalty,
the serious or trivial consequences that flow
therefrom, and, above all, whether the object of
the legislation will be defeated or furthered. ”
(Emphasis supplied)
49. A prima facie reading of the Section 101(2) suggests that it
does not mandate the Court to seek assistance in every
appeal arising from an order passed under Section 15.
SLP (Crl.) No. 5633 of 2026 Page 25 of 46
50. In the aforesaid context, we may discuss the meaning and
import of the word “may”. The word “may” is an enabling or
permissive expression which confers capacity, power or
authority and also implies discretion. As a general rule,
where such a power is conferred upon a court, it is left to the
court to decide, in its discretion, whether or not to exercise it.
However, this power to exercise discretion is guided by the
four corners of the statute, more particularly, by the object it
seeks to achieve.
51. When upon careful reading of the object of the statute and
other provisions, it is manifest that a power has been
conferred to the court to achieve a definite legislative
purpose, such power becomes inseparably linked to the facts
of the case that call for its use. In such circumstances, the
term “may” does not simply provide a court discretion to
whether act, or not to act. Instead, it requires the court to
decide when it should act. In this context, the only duty cast
on the Session Court is to examine, as per the facts of each
case, whether circumstances necessitating the exercise of
that power exist.
52. The exercise of power conferred by an enabling provision was
discussed at length in ,
Julius v . Lord Bishop of Oxford
(1880) 5 App Cas 214 , wherein the House of Lords noted
that for power in such cases to be exercised, it is not
pronounced by the words employed by the statute but rather
SLP (Crl.) No. 5633 of 2026 Page 26 of 46
circumstances compelling its exercise. The relevant
observations read thus:-
“ The question is, under these words "it shall be
lawful ...." Is the bishop bound on the application
of any party to issue a commission,' or has he a
discretion as to whether he will issue it or not?
The question has been argued, and has been
spoken of by some of the learned judges in the
courts below, as if the words "it shall be lawful"
might have a different meaning, and might be
differently interpreted, in different statutes, or in
different parts of the same statute. I cannot think
that this is correct. The words "it shall be lawful"
are not equivocal. They are plain and
unambiguous. They are words merely making
that legal and possible which there would
otherwise be no right or authority to do. They
confer a faculty or power, and they do not of
themselves do more than confer a faculty or
power. But there may be something in the nature
of the thing empowered to be done, something in
the object for which it is to he done, something in
the conditions under which it is to be done,
something in the title of the person or persons for
whose benefit the power is to be exercised, which
may couple the power with a duty, and make it
the duty of the person in whom the power in
reposed to exercise that power when called upon
to do so.[…] ”
(Emphasis supplied)
53. In the aforesaid context, it would also be apposite to refer to
the decision of this Court in Official Liquidator v . Dharti
Dhan (P) Ltd. , reported in (1977) 2 SCC 166 , wherein this
Court noted that while exercising a power conferred by the
statute, regard must be given to the object of the statute and
the provision, and an examination of totality of facts. Such
SLP (Crl.) No. 5633 of 2026 Page 27 of 46
power, in a given circumstance, gives rise to an obligation to
exercise the power in a certain way. It was observed that the
purpose for which the power was conferred must be seen to
determine the scope of the discretion. The relevant
observations read thus:-
“ 8. Thus, the question to be determined in such
cases always is whether the power conferred by
the use of the word “may” has, annexed to it, an
obligation that, on the fulfilment of certain legally
prescribed conditions, to be shown by evidence, a
particular kind of order must be made. If the
statute leaves no room for discretion the power
has to be exercised in the manner indicated by
the other legal provisions which provide the legal
context. Even then the facts must establish that
the legal conditions are fulfilled. A power is
exercised even when the court rejects an
application to exercise it in the particular way in
which the applicant desires it to be exercised.
Where the power is wide enough to cover both an
acceptance and a refusal of an application for its
exercise, depending upon facts, it is directory or
discretionary. It is not the conferment of a power
which the word “may” indicates that annexes any
obligation to its exercise but the legal and factual
context of it. This as we understand it, was the
principle laid down in the case cited before
us: Frederic Guilder Julius v. Right Rev. Lord
Bishop of Oxford: Re v. Thomas Thellusson
Carter [5 AC 214] .
9. Dr Julius, in the case mentioned above, had
made an application to the Bishop of Oxford
against the Rector of a parish, asking the Bishop
to issue a commission under the Church Discipline
Act to enquire against certain unauthorised
deviations from the ritual in a church by the
Rector. The relevant statute merely conferred a
power by laying down that “it shall be lawful” to
SLP (Crl.) No. 5633 of 2026 Page 28 of 46
issue a commission. The Courts of Queens Bench
and of Appeal in England had differed on the
question whether a mandamus from the Court
could go to the Bishop commanding him to issue a
commission for the purpose of making the enquiry.
The House of Lords held that the power to issue
the commission was not coupled with a duty to
exercise it in every case although there may be
cases where duties towards members of the
public to exercise a power may also be coupled
with a duty to exercise it in a particular way on
fulfilment of certain specified conditions. The
statute considered there had not specified those
conditions. Hence, it was a bare power to issue or
not to issue the commission. Lord Blackburn said:
(at p. 241)
“I do not think the words ‘it shall be lawful’
are in themselves ambiguous at all. They are
apt words to express that a power is given;
and as, prima facie, the donee of a power may
either exercise it or leave it unused, it is not
inaccurate to say that, prima facie, they are
equivalent to saying that the donee may do it;
but if the object for which the power is
conferred is for the purpose of enforcing a
right, there may be a duty cast on the donee
of the power, to exercise it for the benefit of
those who have that right, when required on
their behalf. Where there is such a duty, it is
not inaccurate to say that the words
conferring the power are equivalent to saying
that the donee must exercise it. It by no
means follows that because there is a duty
cast on the donee of a power to exercise it,
that mandamus lies to enforce it; that
depends on the nature of the duty and the
position of the donee.”
10. The principle laid down above has been
followed consistently by this Court whenever it
has been contended that the word “may” carries
with it the obligation to exercise a power in a
SLP (Crl.) No. 5633 of 2026 Page 29 of 46
particular manner or direction. In such a case, it is
always the purpose of the power which has to be
examined in order to determine the scope of the
discretion conferred upon the donee of the power.
If the conditions in which the power is to be
exercised in particular cases are also specified by
a statute then, on the fulfilment of those
conditions, the power conferred becomes annexed
with a duty to exercise it in that manner. This is
the principle we deduce from the cases of this
Court cited before us: Bhaiya Punjalal
Bhagwandin v. Dave Bhagwatprasad
Prabhuprasad [(1963) 3 SCR 312 : AIR 1963 SC
120 : (1963) 2 SCJ 441] , State of Uttar
Pradesh v. Jogendra Singh [(1964) 2 SCR 197 :
AIR 1963 SC 1618 : (1963) 2 Lab LJ
444] , Sardar Govindrao v. State of M.P. [(1965)
1 SCR 678 : AIR 1965 SC 1222 : (1966) 1 SCJ
480] , Shri A.C. Aggarwal, Sub-Divisional
Magistrate, Delhi v. Smt Ram Kali [(1968) 1 SCR
205 : AIR 1968 SC 1 : 1968 Cri LJ
82] , Bashira v. State of U.P. [(1969) 1 SCR 32 :
AIR 1968 SC 1313 : 1968 Cri LJ 1495]
and Prakash Chand Agarwal v. Hindustan
Steel Ltd. [(1970) 2 SCC 806 : (1971) 1 SCR 405] ”
(Emphasis supplied)
54. The net effect of the aforesaid discussion is that Section
101(2) confers a power upon the Appellate Court to seek the
assistance of experts, the exercise of which remains within
the discretion of the Court, to be assessed by weighing the
factors discussed above on the facts of each case. To give
context for better exposition, for instance, where the Board
has failed in taking the assistance of experts while
conducting the preliminary assessment, the Court
considering the facts and circumstances before it would seek
assistance of experts. In such circumstances, the decision of
SLP (Crl.) No. 5633 of 2026 Page 30 of 46
the Court would again be governed by the Act, more
particularly, the principle of best interest of the child, and
sensitivity of time in psychological evaluation.
55. We are of the considered view that the ratio of Barun
( supra ), rendered in the context of proviso
Chandra Thakur
to Section 15(1), cannot be mechanically transplanted onto
Section 101(2) so as to render the latter mandatory in every
case. The observations of this Court in Barun Chandra
( supra ) were rendered specifically on the issue
Thakur
whether the proviso to Section 15(1) of the JJ Act could be
said to be directory or mandatory. The observations made by
this Court were based on the objectives of the JJ Act and the
legislative intent behind the statute as well as the provision.
It was rendered to ensure that the psychological evaluation
of the juvenile is not undertaken in the absence of any
expertise. We say so as it would run against the best interest
of the child, which is the fundamental principle guiding the
implementation of the Act.
56. Secondly , the Sessions Court as an appellate court stands
on an entirely different footing. The Appellate Court is fully
equipped to appreciate the material on record including any
psychological or counsellor’s report obtained by the Board
without necessarily having to conduct a fresh and
independent assessment through its own panel of experts.
We say so because the expression “ other than those whose
assistance has been obtained by the Board in passing the
SLP (Crl.) No. 5633 of 2026 Page 31 of 46
order under the said section ” that the legislature has
introduced within the text of Section 101(2) is of some
significance. The expression indicates the presumption that
the Board has either taken assistance of experts or at least
one member of the Board is a practicing professional with a
degree in child psychology or child psychiatry. There is no
denial that it also indicates that the Sessions Court can
independently further take assistance in deciding the appeal.
57. Thirdly, the object of an appeal under Section 101(2) is
materially different from preliminary assessment under
Section 15. Section 15 contemplates a first-hand
determination of the mental and physical capacity of the
child to commit the alleged offence, the child’s ability to
understand the consequences of the offence alleged to be
committed, and the circumstances in which he allegedly
committed the offence. Whereas, an appeal under Section
101(2) is concerned with the correctness of the Board’s order
on the basis of the material gathered including the opinion of
the expert. It examines whether the Board’s preliminary
assessment was conducted in accordance with law and
whether the material already on record was properly
considered.
58. In the facts of the present case, the Board has obtained the
report of the counsellor while undertaking the preliminary
assessment under Section 15. The Appellate Court in its
order records that it is not the case that no expert assistance
SLP (Crl.) No. 5633 of 2026 Page 32 of 46
was called but that the Board erred in weighing the
materials on record correctly while arriving at its conclusion.
This is a wholly different vice from the one contemplated in
supra
Barun Chandra Thakur ( ).
59. Having regard to the case law discussed above and for
reasons to be recorded, we are not inclined to take the view
that the word “may” used in sub-section (2) of Section 101
means “must” or “shall”.
C. Considerations before the Board while carrying out
preliminary assessment
60. At this stage of our exposition, it would be apposite to
explain the correct approach to be adopted by the juvenile
justice boards while carrying out preliminary assessment
under Section 15 of the JJ Act.
61. Before adverting to the correct legal position, it would be
necessary to consider the order passed by the JJ Board,
dated 24.06.2022, whereby it was held that the appellant
need not be tried as an adult. It is evident on the perusal of
the said order that an opportunity of hearing had been
granted to the appellant. The order passed by the JJ Board
records that in the preliminary inquiry conducted, the
juvenile did not reveal anything that would indicate that he
intentionally committed the crime. It further recorded that
there are no direct allegations against him in the FIR. The
order stated that the JJ Board considered the counseling
report and social investigation report and concluded that the
SLP (Crl.) No. 5633 of 2026 Page 33 of 46
juvenile did not possess the mental and physical capacity to
commit the crime.
62. Having carefully gone through the material on record, we are
of the considered view that the JJ Board has erred in
analyzing or rather assessing the totality of the
circumstances of the case and all the materials collected for
the purpose of conducting the preliminary assessment as
contemplated under Section 15 of the JJ Act. The JJ Board
appears to have approached the preliminary assessment
without bringing to bear upon the material before it the
degree of careful and calibrated scrutiny that the provision
demands.
63. Before we discuss the order of the JJ Board in detail, it
would be appropriate to first examine what Section 15(1)
actually requires the Board to do. It reads thus:-
“ 15. (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 subsection (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
SLP (Crl.) No. 5633 of 2026 Page 34 of 46
trial, but is to assess the capacity of such child to
commit and understand the consequences of the
alleged offence.[…] ”
64. The sole purpose of preliminary assessment is to ascertain
whether the child in conflict with law, who is aged more than
16 years, should be tried as an adult. It is needless to
mention that the fundamental principles stated in Section 3
of the JJ Act permeate and govern every stage of the
proceedings before the Board, including the preliminary
assessment. Section 15(1) stipulates that the Board shall
conduct the preliminary assessment with regard to the
following:-
i. The mental capacity of the child in conflict with law to
commit the alleged offence;
ii. The physical capacity of the child in conflict with law to
commit the alleged offence;
iii. The ability of the child in conflict with law to understand
the consequences of the offence;
iv. The circumstances in which the child in conflict with law
committed the alleged offence.
65. Each of these four parameters referred to above is distinct
and must be considered independently and collectively. The
import of the proviso to Section 15(1), more particularly, the
nature of expert assistance has been lucidly explained by
this Court in ( supra ).
Shilpa Mittal
SLP (Crl.) No. 5633 of 2026 Page 35 of 46
66. Rule 10A of the Juvenile Justice (Care and Protection of
Children) Model Rules, 2016, (for short, “ the Model Rules ”),
respectively, further provides guidance to the Board on
preliminary assessment. Sub-rule (4) of Rule 10A mandates
that the Board must assign reasons while passing an order
in furtherance of preliminary assessment. This requirement
is not a mere procedural formality. It acts as a safeguard
that ensures the decision of the Board is capable of judicial
scrutiny.
67. At the outset, we must underscore that the Board at the time
of assessment is not concerned with the guilt or innocence of
the child in conflict with law. In other words, the Board must
not express any view, draw any inference, or make any
observations regarding the guilt or innocence of the child.
The Board must be mindful that any such observation would
be against the right to a fair trial as well as presumption of
innocence. The process of preliminary assessment shall not
deviate from its statutory purpose and transgress into
adjudication.
68. For a better exposition, it would be apposite to first
understand the individual parameters of assessment.
“Mental capacity” refers to the child’s ability to make social
decisions and judgments. It encompasses a range of
cognitive abilities, developmental disability, comprehension,
decision-making and reasoning, more particularly, the
SLP (Crl.) No. 5633 of 2026 Page 36 of 46
child’s understanding of conflict and his understanding of
the consequences of his actions.
69. It is pertinent to mention that the aforementioned factors
cannot be assessed in isolation but in the context of the
alleged offence. The overall assessment would answer
whether the child had the mental capacity to commit the
alleged offence. This is a complex exercise and requires
expertise. It is for this reason that the proviso to Section 15(1)
contemplates the assistance of experts.
70. The assessment of “physical capacity” would not be
restricted to locomotor abilities of the child. It would be
assessed having regards to the nature of the act involved in
the alleged offence. The assessment would constitute
examination of whether the child, given his age, and physical
development was physically capable of committing the
offence in the manner alleged.
71. The third and the fourth parameter were discussed in
sufficient detail by this Court in Barun Chandra Thakur
( supra ). We shall refer to the relevant observations:-
“ 70. The language used in Section 15 is “the
ability to understand the consequences of the
offence”. The expression used is in plurality i.e.
“consequences” of the offence and, therefore,
would not just be confined to the immediate
consequence of the offence or that the occurrence
of the offence would only have its consequence
upon the victim but it would also take within its
ambit the consequences which may fall upon not
SLP (Crl.) No. 5633 of 2026 Page 37 of 46
only the victim as a result of the assault, but also
on the family of the victim, on the child, his family,
and that too not only immediate consequences but
also the far-reaching consequences in future.
Consequences could be in material/physical form
but also affecting the mind and the psychology of
the child for all times to come. The consequences
of the offence could be numerous and manifold
which cannot be just linked to a framework; and,
for this purpose, the overall picture as also future
consequences with reference to the facts of the
case are required to be consciously analysed by
the Board.
71. Consequences for the victim could be his
death, or permanent physical disability, or an
injury which could be repaired or recovered; the
impact of the offence on the mind of the victim
may be prolonged and continue for his lifetime;
the impact on the family and friends of the victim,
both mental and financial; consequence on the
child going into incarceration; mental impact on
the child, it could be repentance or remorse for life,
the social stigma cast on the child and his family
members; the consequences of litigating and so
many other things which would be difficult to
adumbrate.
72. A child with average intelligence/IQ will have
the intellectual knowledge of the consequences of
his actions. But whether or not he is able to
control himself or his actions will depend on his
level of emotional competence. For example, risky
driving may result in an accident. But if emotional
competence is not high, the urge for thrill seeking
may get the better of his intellectual
understanding.
73. Children may be geared towards more
instant gratification and may not be able to
deeply understand the long-term consequences of
their actions. They are also more likely to be
SLP (Crl.) No. 5633 of 2026 Page 38 of 46
influenced by emotion rather than reason.
Research shows that young people do know risks
to themselves. Despite this knowledge,
adolescents engage in riskier behaviour than
adults (such as drug and alcohol use, unsafe
sexual activity, dangerous driving and/or
delinquent behaviour). While they do consider
risks cognitively (by weighing up the potential
risks and rewards of a particular act), their
decisions/actions may be more heavily influenced
by social (e.g. peer influences) and/or emotional
(e.g. impulsive) tendencies. In addition, the lack of
experience coupled with the child's limited ability
to deeply understand the long-term consequences
of their actions can lead to impulsive/reckless
decision-making.
74. Coming to the last count i.e. the assessment
regarding the circumstances in which the offence
is alleged to be committed is again an attribute
which could have many factors to be considered
before such an assessment could be made. There
could be a number of reasons for a person to
commit a crime. It could be enmity, it could be
poverty, it could be greed, it could be perversity in
mind and many others. There could be coercion.
There could be threat to one's life and property.
There could be allurement in terms of the material
and physical gains. Crime could be committed on
account of stress or depression also. It could be
on account of the company that one keeps. One
could commit crime in order to help his family and
friends. All these and many more could be termed
as circumstances leading to the commission of
crime. ”
(Emphasis supplied)
72. Further, the factors to be weighed under each parameter is
elaborately illuminated in the detailed study on preliminary
SLP (Crl.) No. 5633 of 2026 Page 39 of 46
assessment referred by this Court in
Barun Chandra
Thakur ( supra ) in paragraphs 75 and 76, respectively, as
well as in the ‘Guidelines for conducting Preliminary
Assessment under Section 15’ formulated by the National
Commission for Protection of Child Rights (NCPCR) in April
2023. The Guidelines propose suggestive questions to show
the understanding of the exercise to be undertaken while
conducting the preliminary assessment.
73. In this regard, the observations of Gujarat High Court in
Child in Conflict with Law v . State of Gujarat , reported
in 2023 SCC OnLine Guj 3119 , remain noteworthy. The
relevant observations read thus:-
“ 71. The preliminary assessment as explained
under proviso to section 15(1) of the J.J. Act,
clarifies that preliminary assessment is not a trial,
but it is conducted to assess the capacity of such
child to commit and understand the consequences
of, the alleged offence. Thus, while making a
preliminary assessment, the J.J.
Board/Children's Court has to specifically deal
with all four criteria by assigning reasons to
explain the capacity of such child to commit
offence. Such assessment of capacity is in terms
of physical capacity of the child to commit alleged
offence and mental capacity of child to commit
alleged offence. The facts of the case has to be
dealt with to understand the circumstances in
which the child allegedly committed the offence.
The circumstances to be referred are not merely
the immediate circumstances of the offence itself,
but also to other circumstances cumulative in
nature to have led to the immediate circumstances
related to a long period occurring in the child's life,
SLP (Crl.) No. 5633 of 2026 Page 40 of 46
and finally the ability to understand the
consequence of the offence. ”
(Emphasis supplied)
74. The Board, in light of the aforesaid parameters, arrives at a
conclusion with the aid of all the materials and
circumstances before itself. We shall now look into the
material that is available to the Board in order to arrive at its
decision at the end of the preliminary assessment. We shall
now proceed to look into the materials that are placed before
the Board for its consideration.
a. Social Background Report
75. Section 13(1)(ii) of the JJ Act stipulates that the probation
officer, or where a probation officer is not available, the Child
Welfare Police Officer (CWPO), record information regarding
the antecedents and family background of the child and
other material circumstances likely to be of assistance to the
Board. Rule 8(5) of the Model Rules also state that the officer
recording the information would gather information
regarding the social background of the child, and the
circumstances of his apprehension. This is referred to as the
Social Background Report (SBR).
b. Social Investigation Report
76. Where the Board does not exercise its powers under Rule
10(1)(i) of the Model Rules to dispose of the case, it is
empowered to direct a social investigation. The Social
Investigation Report (SIR) contains information pertaining to
the circumstances in which the alleged offence was
committed, the child’s economic, social, psycho-social and
SLP (Crl.) No. 5633 of 2026 Page 41 of 46
other relevant factors, and the recommendation thereon.
Rules 10(9) and 11(2), respectively, clearly mandate that
before passing any order, the Board takes the findings of the
SIR into consideration.
c. Statement of Witness
77. Rule 10(5) of the Model Rules mandates that the CWPO
must place the statement of witnesses recorded by him and
prepared during the course of investigation before the Board.
d. Report of the Expert
78. This Court in ( supra ) painstakingly
Barun Chandra Thakur
dealt with the significance of an expert’s assistance while
conducting preliminary assessment and the circumstances
under which their assistance would be rendered necessary.
79. We may with a view to obviate any confusion, clarify that the
report by an expert in accordance with the proviso to Section
15(1) is one significant input among several considerations.
In other words, it could not be the sole consideration in the
Board’s decision. The expert opinion must be read and
assessed along with its interaction with the child, the SBR,
the SIR, the statement of witness, and other material placed
before the Board, if any. The members of the Board are
required to apply their mind independently on all such
materials. We emphasize that the Board cannot abdicate its
responsibilities by mechanically adopting the conclusions of
the expert without examining whether the conclusions
reached are supported by the totality of the material before it.
SLP (Crl.) No. 5633 of 2026 Page 42 of 46
80. In the aforesaid context, we may look into the decision of the
Delhi High Court in Pradeep Kumar v . State (NCT of
Delhi) , reported in 2019 SCC OnLine Del 8251 , wherein
the Court while deciding a challenge to the order of the
Board as well as the Appellate Court observed that the Board
is not bound by the opinion of the expert. The Board is
required to apply its mind independently to all the other
considerations and arrive at a conclusion, which could differ
from the opinion of the expert. The relevant observations
read thus:-
“ 10. The JJB-II as well as the Appellate Court has
taken into consideration, all the parameters and
factors mentioned in Section 15 of the Act while
passing the impugned order and judgment,
respectively. Further, the JJB-II has given a
careful thought and consideration to the
submissions of both the parties as well as the
legal position in this regard. Similarly, the
Appellate Court has also given careful thought
and consideration to the submissions of the
learned counsel for the petitioner. There is no
doubt that the JJ Board may seek the opinion of
an expert regarding the mental and physical
capacity of a CCL to commit an offence and it is
not necessary that if an expert opined that the
mental and physical capacity of a CCL and his
ability to understand the consequence of the
offence are positive, then the JJ Board is bound
by the expert opinion. It is well within the
jurisdiction of the JJ Board to agree or disagree
with the preliminary assessment report of the CCL
submitted by such a psychologist to the JJ Board.
But the circumstances, in which the alleged
offence was committed has to be considered by
the JJ Board independently, in which the alleged
SLP (Crl.) No. 5633 of 2026 Page 43 of 46
offence was committed and the JJ Board has to
apply a judicial mind. ”
(Emphasis supplied)
81. In ( ) the Gujarat High
Child in Conflict with Law supra
Court listed factors, other than those written in the SBR or
SIR, to be considered during the course of preliminary
assessment. The overarching idea flowing across the factors
remain that an overall assessment, more particularly, the
past conduct, of the child should be undertaken. The Court
further noted that while dealing with an appeal, the
Appellate Court may call for assistance by expert and are not
bound by the report of the expert placed before the JJ Board.
The relevant observations read thus:-
“ 99. The children are treated as an adult
offenders because of offence category. Thus, the
provisions of the section invoked, would also
require consideration during the course of
preliminary assessment alongwith, the record and
previous history of the child in the present
jurisdiction or other jurisdiction including:
(i) the number and nature of the previous cases of
the child with the Board;
(ii) The number and nature of prior period of
probation;
(iii) the number and nature of prior commitments
to child correctional centers;
(iv) the number and nature of previous residential
and community - based treatments;
(v) whether previous adjudications and
commitments were for delinquent acts that
involved the infliction of serious bodily injury, and;
(vi) whether the alleged offense is part of a
repetitive pattern of similar adjudicated offenses;
SLP (Crl.) No. 5633 of 2026 Page 44 of 46
(vii) Whether the juvenile has previously
absconded from the legal custody of a juvenile
correctional entity in this or any other jurisdiction;
(viii) The degree of intellectual disability or mental
illness;
(ix) The juvenile's school record and education;
(x) The juvenile's mental and emotional maturity;
and
(xi) The juvenile's physical condition and physical
maturity.
xxx
103. Here, in the impugned order, the Children's
Court has placed reliance on the reports placed
before the J.J. Board. The Children's Court while
dealing in appeal under section 101(2) of the J.J.
Act, can independently deal with the case of child
by taking assistance of experienced psychologists
and medical specialists other than those, whose
assistance, has been obtained by the Board in
passing the order under the section 15 of the J.J.
Act. The appeal provision makes, thus, clear that
the Sessions Judge are not bound by the report of
the psychologist or medical specialists obtained
by the Board and can independently call for
assistance of experienced psychologists and
medical specialists, to deal with the order passed
under Section 15 of preliminary assessment by
the Board. ”
(Emphasis supplied)
82. The final report of the Board must contain a reasoned
decision on whether the child in conflict with law is to be
tried as an adult, together with the reasons for accepting or
rejecting the observations and recommendations contained
in the SIR, the SBR, and the witness statements. Such an
exercise must be hooked to the four parameters stipulated
under Section 15(1).
SLP (Crl.) No. 5633 of 2026 Page 45 of 46
83. With a view to dispel any doubt and lend clarity, we deem it
appropriate to observe that our observations on the order of
the JJ Board would be limited to whether the material before
the JJ Board was duly considered for the purpose of
preliminary assessment, and would have no bearing on the
trial. The trial shall proceed uninfluenced by our
observations in this regard.
84. In the present case, the JJ Board arrived at the conclusion
solely on the basis of expert opinion obtained in accordance
with proviso to Section 15(1). The majority opinion of the JJ
Board makes no mention whatsoever of the SIR or the SBR.
It erred in failing to consider the SIR and the SBR, more
particularly, the antecedents and recommendations made by
the Probation Officer and the CWPO, respectively. We
underscore or rather emphasize that the SIR and the SBR
reports are not supplementary material, they constitute
pertinent inputs for the preliminary assessment and must be
accorded due weight alongside the expert opinion.
VI. CONCLUSION
85. A conspectus of our discussion in the aforesaid section is as
follows:-
i. The offence punishable under Section 302 of the IPC,
which prescribes punishment of “death or
imprisonment for life”, carries life imprisonment as its
minimum punishment. It would therefore be
categorized as a “heinous offence”.
SLP (Crl.) No. 5633 of 2026 Page 46 of 46
ii. The power vested in the Sessions Court as an appellate
court is to be exercised having regard to the object of
the statute, the provision concerned, and upon an
examination of the totality of facts. The Sessions Court
may exercise its power under Section 101(2) of the JJ
Act where the circumstances occasion the necessity of
assistance from an expert.
iii. For the JJ Board to arrive at its conclusion at the end
of the preliminary assessment, it is not bound by any
opinion or recommendation and must independently
apply its mind to all the material available to it. In
order to arrive at a conclusion, it must assess all the
material together, keeping in mind the four parameters
stipulated under Section 15 of the JJ Act.
86. For all the foregoing reasons, we have reached the
conclusion that no error not to speak of any error of law
could be said to have been committed by the High Court in
passing the impugned order.
87. As a result, the appeal stands dismissed. Parties shall bear
their own cost.
88. Pending applications, if any shall stand disposed of.
SLP (Crl.) No. 5633 of 2026 Page 47 of 46
89. The Registry shall forward one copy each of this judgment to
all the High Courts.
…………………………..J.
(J.B. PARDIWALA)
.…………………………..J.
(UJJAL BHUYAN)
July 21, 2026;
New Delhi
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