1

CRA No. 932 of 2019

2026:CGHC:4041-DB

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 932 of 2019

[Arising out of judgment dated 25.05.2019 passed in Special Sessions

Trial No.61/2017 by 5

th

Additional Sessions Judge / Children’s

Court / Special Judge, under the POCSO Act, Durg, District Durg,

Chhattisgarh.]

Rajkumar @ Raja Dewangan S/o Shiv Kumar, aged about 19

years, R/o Sikola Basti, Ward No. 15, Police Station- Mohan

Nagar, District- Durg, Chhattisgarh.

... Appellant

versus

State of Chhattisgarh through Station House Officer, Police

Station- Mohan Nagar, District - Durg, Chhattisgarh.

... Respondent

For Appellant :-Mr. Rahil Arun Kochar, Advocate.

For State-Respondent:-Mr. Rahul Tamaskar, Government

Advocate, & Dr. S. K. Dewangan, Panel

Lawyer.

Division Bench

Hon'ble Shri Justice Sanjay K. Agrawal &

Hon'ble Shri Justice Arvind Kumar Verma

Judgment On Board

(23.01.2026)

Sanjay K. Agrawal, J

1.The appellant herein – Child in Conflict with Law (for short, “the

CCL”) has been convicted and sentenced by the Children’s Court,

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Durg, District Durg, Chhattisgarh vide impugned judgment dated

25.05.2019 for the heinous offences as defined in Section 2(33) of

the Juvenile Justice (Care and Protection of Children) Act, 2015

(for brevity “the Act of 2015”) which states as under:-

Conviction Sentence

Under Section 363 of the IPC Imprisonment for 6 months

with fine of 200/-.

₹

Under Section 366 of the IPC Imprisonment for 6 months

with fine of 200/-.

₹

Under Section 376(2) of the IPC and

Section 6 of the POCSO Act

[However, sentenced under Section

376(2) of the IPC as the same is higher

in degree to that of Section 6 of the

POCSO Act]

Imprisonment for 10 years

with fine of 500/-

₹

Prosecution Story:-

2.The CCL was juvenile and found involved in offences as

mentioned in the opening para of this judgment, accordingly, he

was charge-sheeted before the jurisdictional Juvenile Justice Board

(for short “the JJB”) for the said offences. The JJB finding him

more than 16 years and less than 18 years of age as the date of

birth of the CCL is 22.02.2000 on the basis of his mark-sheet of

Class-II and Aadhaar Card (annexed with the original record) and

the date of offence is 12.11.2016, meaning thereby on the date of

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CRA No. 932 of 2019

offence the CCL was aged about 16 years 9 months 10 days,

proceeded to hold preliminary assessment under Section 15(1) of

the Act of 2015 and called for the Psychologist Report vide order

dated 07.04.2017, with regard to mental and physical capacity of

CCL to commit such offence, ability to understand the

consequences of the offence and the circumstances in which he

allegedly committed the offences. However, on 02.05.2017, the

Psychologist report was received to the JJB and, thereafter on the

same day JJB had preliminarily assessed the case of the CCL and

passed order under Section 18(3) of the Act of 2015 and

transferred the case to the Children’s Court having jurisdiction to

try the offence i.e. the Children’s Court, Durg, District Durg

constituted under the provisions of the Commissions for

Protection of Child Rights Act, 2005, finding the CCL aged about

16 years 9 months and 10 days at the time of commission of

offence and said act of the CCL is heinous offence under Section

2(33) of the Act of 2015, however, the copy of the Psychologist

report was not served to either the CCL or his counsel or his

guardian.

3.The Children’s Court, Durg, District Durg receipt the case from

JJB on 16.05.2017 and after receipt of case from the JJB and the

preliminary inquiry report conducted under Section 15(1) of the

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CRA No. 932 of 2019

Act, 2015, on 04.07.2017 framed the charges against the CCL for

offences under Sections 363, 366, 376 of the IPC and Section 6 of

the POCSO Act and held that the CCL has committed heinous

offence and did not make any further inquiry as envisaged under

Section 19(1) of the Act of 2015. The Children’s Court did not

hold that there is a need for trial of the child as an adult as per the

provisions of the Code of Criminal Procedure, 1973 and after trial,

passed the impugned judgment and convicted ans sentenced the

CCL for offences as mentioned in the opening paragraph of this

judgment.

4.Feeling aggrieved against the judgment of conviction and order of

sentence, the CCL i.e. the present appellant has preferred this

appeal under Section 374(2) of the CrPC calling in question

legality, validity and correctness of the same.

Submission of the parties:-

5.Mr. Rahil Arun Kochar, learned counsel for the appellant, would

submit that neither the JJB conducted the inquiry in accordance

with Section 15 of the Act of 2015 read with Rules 10 and 10A of

the Juvenile Justice (Care and Protection of Children) Model

Rules, 2016 (for short “the Rules of 2016”) nor the Children’s

Court conducted any further inquiry under Section 19(1)(i) of the

Act of 2015 read with Rule 13 of the Rules of 2016 and, therefore,

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CRA No. 932 of 2019

the entire trial deserves to be quashed and the appellant is entitled

for acquittal.

6.Mr. Rahul Tamaskar & Dr. S.K. Dewangan, learned State

counsels, would submit that the preliminary assessment was

conducted under Section 15(1) of the Act of 2015 and the

Psychologist report was called by the JJB, thereafter, the order

under Section 18(3) of the Act of 2015 was passed and the case

was transferred to the Children’s Court having jurisdiction. They

would further submit that the Children’s Court, Durg, District

Durg, has also proceeded in accordance with law, therefore, the

impugned judgment of conviction and order of sentence deserves

to be maintained and the present appeal deserves to be dismissed.

7.We have heard learned counsel for the parties, considered their

rival submissions made herein-above and gone through the

records meticulously.

Discussion & Analysis:-

8.Admittedly, the date of offence is 12.11.2016 and as per mark-

sheet of Class-II and Aadhaar Card (annexed with the original

record) the date of birth of the appellant herein/CCL is

22.02.2000, therefore, on the date of offence, the CCL was aged

about 16 years 9 months and 10 days, and the offence mentioned

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CRA No. 932 of 2019

in the opening paragraph of this judgment is a heinous offence.

The JJB was required to conduct an inquiry as per Section 15(1) of

the Act of 2015 read with Rules 10 & 10A of the Rules of 2016.

However, it appears from the record of the JJB that the JJB called

the report of the Psychologist, which was received by the JJB on

02.05.2017 and on the same day order of transferring the case to

the Children’s Court having jurisdiction under Section 18(3) of the

Act of 2015 was passed without serving the copy of the

Psychologist report to the appellant herein/CCL, or his guardian

or his counsel, which ought to have been served and reasonable

opportunity to respond to the Psychologist report ought to have

been granted to the appellant herein/CCL, but the said

procedures have not been followed by the JJB.

9.In this regard, the decision of the Supreme Court in Barun

Chandra Thakur v. Master Bholu and another

1

, may be noticed

herein profitably in which their Lordships have considered the

manner and procedure of conducting inquiry by the Board,

whether the child in conflict with law is to be tried as an adult by

the Children's Court or by the Board itself, treating her to be a

child and it has been held that if the child in conflict with law is

tried as an adult by the Children’s Court, it involves

consequences of serious nature and having a lasting effect for the

1 (2023) 12 SCC 401

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CRA No. 932 of 2019

entire life of the child, and it has serious civil consequences,

therefore, reasonable opportunity must be afforded. It has been

observed as under: -

“Effect of an order of preliminary assessment

47.The order of preliminary assessment decides whether

the child in conflict with law, falling in the age bracket of 16-

18 years and having committed heinous offence, is to be

tried as an adult by the Children's Court or by the Board

itself, treating him to be a child. There are two major

consequences provided in the 2015 Act, if the child is tried

as an adult by the Children's Court. First, that the sentence

or the punishment can go up to life imprisonment if the

child is tried as an adult by the Children's Court, whereas if

the child is tried by the Board as a child, the maximum

sentence that can be awarded is 3 years. The second major

consequence is that where the child is tried as a child by the

Board, then under Section 24(1), he would not suffer any

disqualification attached to the conviction of an offence,

whereas the said removal of disqualification would not be

available to a child who is tried as an adult by the Children's

Court, as per the proviso to Section 24(1). Another

consequence, which may also have serious repercussions, is

that as per Section 24(2), where the Board or the Children's

Court, after the case is over, may direct the police or the

registry that relevant records of such conviction may be

destroyed after the period of expiry of appeal or a

reasonable period as may be prescribed. Whereas, when a

child is tried as an adult, the relevant records shall be

retained by the relevant Court, as per the proviso to Section

24(2).

48.These consequences are serious in nature and have a

lasting effect for the entire life of the child. It is well settled

that any order that has serious civil consequences,

reasonable opportunity must be afforded. The question is

of what would be a reasonable opportunity in a case where

a preliminary assessment is to be made by the Board under

Section 15.”

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10.Thereafter, their Lordships dealt with the question as to what

would be a reasonable opportunity in a case where a preliminary

assessment would be made by the Board under Section 15 of the

Act of 2015 and it is held that the expression “may” in the proviso

to Section 15(1) and the requirement of taking assistance of

experienced physiologists 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. It has been

observed by their Lordships as under: -

“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 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.

84. xxx xxx xxx xxx xxx

Conclusion

85. We are conscious of the fact that the power to make the

preliminary assessment is vested in the Board and also the

Children's Court under Sections 15 and 19 respectively. The

Children's Court, on its own, upon a matter being referred to

under Section 18(3), would still examine whether the child is

to be tried as an adult or not, and if it would come to the

conclusion that the child was not to be tried as an adult then

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CRA No. 932 of 2019

it would itself conduct an inquiry as a Board and pass

appropriate orders under Section 18. Thus, the power to

carry out the preliminary assessment rests with the Board

and the Children's Court. This Court cannot delve upon the

exercise of preliminary assessment. This Court will only

examine as to whether the preliminary assessment has been

carried out as required under law or not. Even the High

Court, exercising revisionary power under Section 102,

would test the decision of the Board or the Children's Court

with respect to its legality or propriety only. In the present

case, the High Court has, after considering limited material

on record, arrived at a conclusion that the matter required

reconsideration and for which, it has remanded the matter to

the Board with further directions to take additional evidence

and also to afford adequate opportunity to the child before

taking a fresh decision.”

11.In the case in hand, the procedure prescribed in Rule 10(5) of the

Rules of 2016 has not been followed which provides that in the

cases of heinous offences alleged to have been committed by a

child, who has completed the age of sixteen years, the Child

Welfare Police Officer shall produce the statements of witnesses

recorded by him and other documents prepared during the

course of investigation within a period of one month from the

date of first production of the child before the Board and a copy of

which shall also be given to the child or parent or guardian of the

child. Also Rule 10(9) of the Rules of 2016 has not been followed

in the present case which provides that the Board shall take into

account the report containing circumstances of apprehending the

child and the offence alleged to have been committed by him and

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CRA No. 932 of 2019

the social investigation report in Form 6 prepared by the

Probation Officer or the voluntary or non-governmental

organisation, along with the evidence produced by the parties for

arriving at a conclusion and the JJB has simply passed order

transferring the case to the jurisdictional Children’s Court under

Section 18(3) of the Act of 2015 which is a flagrant violation of the

provisions contained in the Act of 2015 read with the Rules of

2016 as well as the principles of law laid down by their Lordships

of the Supreme Court in the matter of Barun Chandra Thakur

(supra).

12.Not only this, in the instant case, there is also total non–

compliance of Section 19(1) of the Act of 2015. The Supreme

Court in the matter of Ajeet Gurjar v. State of Madhya Pradesh

2

has held that the procedure prescribed under Sections 15 and

19(1) of the Act of 2015 are mandatory in nature and observed as

under:-

“9. There are two parts to sub-section (1) of Section 19.

The first part requires the Children's Court to decide

whether there is a need for trial of the child as an adult as

per the provisions of the Criminal Procedure Code, 1973.

If the Court is satisfied that the child needs to be tried as

an adult as per the provisions of CrPC, the Children's

Court can proceed with the trial and thereafter pass an

appropriate order subject to the provisions of Sections 19

and 21 of the JJ Act.

2 (2023) 15 SCC 678

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CRA No. 932 of 2019

10. Clause (ii) of sub-section (1) of Section 19 is very

crucial which indicates that though the word “may” have

been used in the opening part of sub-section (1) of Section

19, the same will have to be read as “shall”. Clause (ii)

provides that after examining whether there is a need for

a trial of the child as an adult, if the Children's Court

comes to the conclusion that there is no need for the trial

of the child as an adult, instead of sending back the matter

to the Board, the Court itself is empowered to conduct an

inquiry and pass appropriate orders in accordance with

provisions of Section 18 of the JJ Act. The trial of a child

as an adult and his trial as a juvenile by the Juvenile

Justice Board has different consequences.

11. Therefore, 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.

12. 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.”

13.Coming to the facts of the present case, it appears from the

records that on reciept of the case from the JJB, the Children’s

Court only relied upon the preliminary assessment report

submitted by the JJB and did not take pain to conduct further

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CRA No. 932 of 2019

inquiry as mandated under Section 19(1) of the Act of 2015 read

with Rule 13 of the Rules of 2016 as directed by their Lordships of

the Supreme Court in the matter of Ajeet Gurjar (supra) and

passed order without taking decision under Section 19(1) of the

Act of 2015 and registered the case in contravention of Rule 13 of

the Rules of 2016 and further on 04.07.2017 the charges were

framed against the appellant without holding that there is a need

for trial of the child as an adult as per the provisions of the Code

of Criminal Procedure, 1973. However, the copy of the

preliminary inquiry was not supplied to the CCL and no

reasonable opportunity of hearing was afforded to his counsel to

make submission on the preliminary inquiry report. As such, the

order dated 04.07.2017, framing of charges, of the Children’s

Court is totally contrary and violation of provisions contained

under Section 19(1) of the Act of 2015 read with Rules 13(1) & 13

(6) of the Rules of 2016. The provisions contained under Section

19(1) of the Act of 2015 as well as the Rules 13(1) and 13(6)

deserve to be noticed herein:-

Section 19 of the Act of 2015:-

“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

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CRA No. 932 of 2019

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 astrosphere;

(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.”

Rule 13 of the Rules of 2016:-

“13. Procedure in relation to Children’s Court and

Monitoring Authorities.—(1) Upon receipt of

preliminarily assessment from the Board the Children’s

Court may decide whether there is need for trial of the

child as an adult or as a child and pass appropriate orders.

(2) xxx xxx xxx

(3) xxx xxx xxx

(4) xxx xxx xxx

(5) xxx xxx xxx

(6) The Children’s Court shall record its reasons while

arriving at a conclusion whether the child is to be treated

as an adult or as a child.

14. In view of the aforesaid discussion and analysis, it is quite vivid

that there is complete violation of Section 15(1) of the Act of 2015

read with Rules 10 & 10(A) of the Rules of 2016 as well as Section

19(1) of the Act of 2015 read with Rules 13(1) and 13(6) of the

Rules of 2016 which is held to be mandatory in light of the

decisions of the Supreme Court in the matters of Barun Chandra

Thakur (supra) and Ajeet Gurjar (supra) and which has further

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been reiterated in the matter of Thirumoorthy v. State,

represented by the Inspector of Police

3

.

15. Since the CCL, as of now is nearly aged about 26 years as his date

of birth is 22.02.2000 on the basis of mark-sheet of Clas-II and

Aadhaar Card, there is no possibility of finding out the mental

and physical capacity of the accused/appellant to commit the

offence or to assess her ability to understand the consequences of

the offence and circumstances in which he allegedly committed

the offence on 12.11.2016. As such, this Court is of the considered

opinion that it is not a case where the matter be remitted to the JJB

for conducting inquiry afresh in accordance with Section 15(1) of

the Act of 2015 read with Rules 10 & 10A of the Rules of 2016 or to

the Children’s Court for conducting inquiry in accordance with

Section 19(1) of the Act of 2015 read with Rules 13(1) and 13(6) of

the Rules of 2016. Furthermore, the proceedings right from the

stage of the JJB to that of the Children’s Court have not been

conducted in accordance with the Act of 2015 and the Rules of

2016 and also the principles of law laid down by their Lordships

of the Supreme Court in the matters of Barun Chandra Thakur

(supra), Ajeet Gurjar (supra) and Thirumoorthy (supra) have not

been followed and even the clock cannot be reversed to examine

the mental and physical capacity of the appellant on the date of

3 2024 SCC OnLine Sc 375

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incident. Therefore, the entire trial stands vitiated as having been

undertaken in gross violation of the mandatory requirements of

the Act of 2015 as well as the Rules of 2016.

Conclusion:-

16.In view of the above, We are left with no option, but to quash and

set aside the impugned judgment dated 25.05.2019 passed by the

Children’s Court, Durg, District Durg. Since the appellant is

stated to be on bail, he need not surrender. However, his bail

bond shall remain in operation for a period of six months as per

provisions contained in Section 437-A of the CrPC.

17.Let a certified copy of this judgment along with the original

record be transmitted to the concerned Children’s Court and all

the Juvenile Justice Board for information and needful action.

Sd/- Sd/-

(Sanjay K. Agrawal) (Arvind Kumar Verma)

Judge Judge

Ankit