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

SLP (Crl.) No. 5633 of 2026 Page 1 of 46

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 ........................ 19

C. Considerations before the Board while carrying out preliminary

assessment ............................................................................................ 32

a. Social Background Report ............................................................... 39

b. Social Investigation Report .............................................................. 40

c. Statement of Witness....................................................................... 40

d. Report of the Expert ........................................................................ 40

VI. CONCLUSION ........................................................................ 45

SLP (Crl.) No. 5633 of 2026 Page 2 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

impugned judgment”) by which the High Court dismissed 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 Board”) to

transfer the trial of the Juvenile Case No. 1838 of 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 3 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.

8. The record reveals that the appellant was apprehended while

he was attempting to flee. The alleged role of the appellant in

SLP (Crl.) No. 5633 of 2026 Page 4 of 46

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 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.

SLP (Crl.) No. 5633 of 2026 Page 5 of 46

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) Act, 2015,

challenging an order dated 21

st December 2023,

passed by the learned Additional District Judge

XII, Civil Court, Saran at Chapra on 21

st December

2023. In Criminal Juvenile Appeal No. 29/2022,

instituted against the order passed by the Juvenile

Justice Board, Saran at Chapra, an order was

passed on 24

th 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 ass essment 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 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

SLP (Crl.) No. 5633 of 2026 Page 6 of 46

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 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

impugned order dated 21

st 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

SLP (Crl.) No. 5633 of 2026 Page 7 of 46

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. Sachin Patil, 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 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

SLP (Crl.) No. 5633 of 2026 Page 8 of 46

submission, he relied on the decision of this Court in Barun

Chandra Thakur v. Bholu, reported in (2023) 12 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 Shilpa

Mittal v. State (NCT) of Delhi, reported in (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

SLP (Crl.) No. 5633 of 2026 Page 9 of 46

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 term more

than seven years but no minimum imprisonment ” under

Section 2(54) of the JJ Act?

b. Whether, the expression, “may” 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?

SLP (Crl.) No. 5633 of 2026 Page 10 of 46

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

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.

SLP (Crl.) No. 5633 of 2026 Page 11 of 46

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 (“2021 Amendment ”). The provision prior and

subsequent to the 2021 Amendment read thus:-

Prior to the

amendment

Subsequent to the

amendment

(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.

SLP (Crl.) No. 5633 of 2026 Page 12 of 46

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 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.

SLP (Crl.) No. 5633 of 2026 Page 13 of 46

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 petty offence under Section 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:-

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 offences

SLP (Crl.) No. 5633 of 2026 Page 15 of 46

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, (2019) 13 SCC

SLP (Crl.) No. 5633 of 2026 Page 16 of 46

631; The State of Madhya Pradesh v. 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 imprisonment of 14 years, and

SLP (Crl.) No. 5633 of 2026 Page 18 of 46

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 imported into the

question of classification of offences for the purposes of

SLP (Crl.) No. 5633 of 2026 Page 19 of 46

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

Mittal (supra) requires reconsideration is also rejected. The

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:

Provided that the Court of Sessions, or the

District Magistrate, as the case may be, may

SLP (Crl.) No. 5633 of 2026 Page 20 of 46

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)

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

SLP (Crl.) No. 5633 of 2026 Page 21 of 46

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

Chandra Thakur (supra) wherein this Court has said in so

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 Thakur (supra) as

contained in paragraphs 79 and 83 of the 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.

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

SLP (Crl.) No. 5633 of 2026 Page 22 of 46

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 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

SLP (Crl.) No. 5633 of 2026 Page 23 of 46

such assistance, it would record specific reasons

therefor.”

(Emphasis is ours)

46. The reliance placed by the learned counsel on the decision in

Barun Chandra Thakur (supra) to extend the mandatory

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

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

SLP (Crl.) No. 5633 of 2026 Page 24 of 46

State of U.P. v. Babu Ram Upadhya , reported in 1960 SCC

OnLine SC 5. The relevant observations read thus:-

“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.

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

SLP (Crl.) No. 5633 of 2026 Page 25 of 46

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

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

SLP (Crl.) No. 5633 of 2026 Page 26 of 46

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

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

SLP (Crl.) No. 5633 of 2026 Page 27 of 46

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 issue a

commission. The Courts of Queens Bench and of

Appeal in England had differed on the question

whether a mandamus from the Cour t 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

SLP (Crl.) No. 5633 of 2026 Page 28 of 46

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 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]

SLP (Crl.) No. 5633 of 2026 Page 29 of 46

, 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 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

Chandra Thakur (supra), rendered in the context of proviso

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

Thakur (supra) were rendered specifically on the issue

SLP (Crl.) No. 5633 of 2026 Page 30 of 46

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 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.

SLP (Crl.) No. 5633 of 2026 Page 31 of 46

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 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 Barun

Chandra Thakur (supra).

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”.

SLP (Crl.) No. 5633 of 2026 Page 32 of 46

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 juvenile did not

possess the mental and physical capacity to co mmit 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

SLP (Crl.) No. 5633 of 2026 Page 33 of 46

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

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:-

SLP (Crl.) No. 5633 of 2026 Page 34 of 46

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 Shilpa Mittal (supra).

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

SLP (Crl.) No. 5633 of 2026 Page 35 of 46

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 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.

SLP (Crl.) No. 5633 of 2026 Page 36 of 46

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

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

SLP (Crl.) No. 5633 of 2026 Page 37 of 46

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 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

SLP (Crl.) No. 5633 of 2026 Page 38 of 46

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

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

SLP (Crl.) No. 5633 of 2026 Page 39 of 46

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, 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

SLP (Crl.) No. 5633 of 2026 Page 40 of 46

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 whic h the alleged offence was

committed, the child’s economic, social, psycho-social and

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 Barun Chandra Thakur (supra) painstakingly

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

SLP (Crl.) No. 5633 of 2026 Page 41 of 46

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.

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

SLP (Crl.) No. 5633 of 2026 Page 42 of 46

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 offence

was committed and the JJ Board has to apply a

judicial mind.”

(Emphasis supplied)

81. In Child in Conflict with Law (supra) the Gujarat High 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;

SLP (Crl.) No. 5633 of 2026 Page 43 of 46

(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;

(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)

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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).

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 CWP O, 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.

SLP (Crl.) No. 5633 of 2026 Page 45 of 46

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”.

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

SLP (Crl.) No. 5633 of 2026 Page 46 of 46

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.

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