The main legal point established in the judgment is that in cases involving 'heinous offences' under the 2015 Act, a preliminary assessment of the accused's mental and physical capacity to commit the offence and ability to understand the consequences is mandatory before adjudicating bail applications.

JUDGMENT :

S.K. Sahoo, J. - This revision petition has been filed to set aside the order dated 24.6.2016 passed by the learned Sessions Judge, Jajpur in Criminal Appeal No.47 of 2016 in confirming the order passed by the learned C.J.M.-cum-Principal Magistrate, Juvenile Justice Board, Jajpur in J.G.R. Case No.21 of 2016 and for a direction that the petitioner should be released on bail.

2. On perusal of the L.C.R., it appears that the date of birth of the petitioner as per the School Admission Register is 06.03.1999 and the occurrence in question stated to have taken place on 05.06.2016 and therefore, as on the date of occurrence, the petitioner was aged about 17 years 3 months.

3. The FIR was registered as Korai P.S. Case No.92 dated 12.06.2016 under sections 363/366 of the Indian Penal Code. Subsequently, the case turned to also one under section 376 of the Indian Penal Code read with section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereafter "POCSO Act") and the investigation is under progress.

4. Section 376 of the Indian Penal Code prescribes punishment for rape with rigorous imprisonment which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

5. Section 4 of the POCSO Act prescribes punishment for "penetrative sexual assault" which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

6. The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter "2015 Act") was brought into force on 15.01.2016 vide S.O.110(E) dated 12.01.2016. Section 2(33) of the 2015 Act defines "heinous offence" as follows :

"heinous offences" includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more.

7. In view of the definition of "heinous offence" in 2015 Act and looking at the punishment prescribed under section 376 of the Indian Penal Code and section 4 of the POCSO Act, it is apparent that both these offences which are stated to have been committed in this case after 2015 Act was brought into force, come within the definition of "heinous offence".

8. Section 15 of the 2015 Act reads as follows :

"15. Preliminary assessment into heinous offences by Board - (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 sub-section (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 (2 of 1974) :

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."

9. Section 14 of 2015 Act deals with inquiry by Board regarding child in conflict with law. Sub-section 5 (f) of section 14 reads as follows :

"(5) (f) inquiry of heinous offences :

(i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e);

(ii) for ch