The central legal point established in the judgment is the mandatory requirement for the Children's Court to independently decide on the need for trial of a child as an adult or as a child, as stipulated in Section 19(1) of the Juvenile Justice Act, 2015, and the curable nature of irregularities in the absence of prejudice.

JUDGMENT :

1. The present petition raises important question of law.

2. The question of law that arises is as to whether under Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the JJ Act), once a preliminary assessment report has been received from the Juvenile Justice Board under Section 15 of the JJ Act, the Children’s Court is obliged to accept the report and proceed further for trial of the child as an adult or has to take a decision as to whether there is need for trial of the child as an adult or not as stipulated under Section 19(1)(i) and Section 19(1)(ii) of the JJ Act.

3. The contention of the learned counsel for the petitioner is that it is mandatory for the Children’s Court under Section 19(1) of the Act, on receipt of preliminary assessment report, to take a decision as to which of the two courses provided by Section 19(1) i.e. 19(1)(i) 19(1)(ii) of the Act is to be adopted.

4. Subject FIR No. 310/2016 has been registered under Section 342/376 of the Indian Penal Code (IPC for short) and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act 2012, Police Station Khayala, alleging that the petitioner had tied the hands of the victim and gagged her mouth with a piece of cloth and thereafter committed penetrative sexual assault upon her.

5. On 15.07.2016, the petitioner was arrested. On 31.08.2016 final report was filed before the Juvenile Justice Board.

6. By order dated 16.11.2016, the Juvenile Justice Board concluded the preliminary assessment in terms of Section 15 of the JJ Act and held that the petitioner was required to face trial as an adult and therefore the case was transferred to the concerned Children’s Court for trial.

7. By order dated 04.09.2018, impugned herein, the Children’s Court framed charges against the petitioner under Section 342/376 IPF and Section 6 POCSO.

8. Subject petition has been filed contending that the Children’s Court has failed to comply with the mandatory requirement of Section 19(1) of the JJ Act of deciding as to whether there was need to trial the petitioner as an adult or not and as such the impugned order on charge and the consequent proceedings held thereafter are vitiated and liable to be quashed.

9. Section 15 of the JJ Act reads as under:

“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.

(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973:

Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101:

Provided further that the assessment under this section shall be completed within the period specified in section 14.”

10. In terms of Section 15 of the JJ Act in the case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of 16, the Board is obliged to conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, his ability to understand the consequences of the offence and the circumstances in which he allegedly com