The mental and physical capacity of a juvenile to understand the nature and consequences of an alleged offence is a key factor in determining whether the juvenile should be tried as an adult under the Juvenile Justice Act.

JUDGMENT

Anil Kshetarpal, J. - Challenge is to the order passed by the Juvenile Justice Board (for short 'the Board') dated 13.06.2019, affirmed in revision by the learned Additional Sessions Judge, Kaithal.

2. The petitioner is one of the accused in the case of murder of one Sandeep son of Balwant Singh along with four other accused. FIR No. 102 was registered at Police Station City Kaithal on 15.02.2018. As per the observations made by learned Additional Sessions Judge, petitioner was formally employed at a liquor vend from where the said Sandeep (deceased) etc. used to collect cash representing sale proceeds of the day. It is the petitioner who is alleged to have arranged for country made pistol and ammunition, which at the time of arrest, were allegedly recovered from him. Alleged part of the looted cash was also recovered from the petitioner. As per case of the prosecution, the petitioner is said to have planned and committed the offence. The petitioner was, at the time of commission of offence, more than 16 years of age. The Board has ordered that petitioner be tried as an accused in terms of Section 18(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the Act') along with other accused.

3. Initially, the Board carried out a preliminary inquiry and passed order dated 07.06.2018 holding that juvenile in conflict with law, on the date of occurrence, was able to understand the nature and consequences of the offences alleged to have been committed by him, so he be committed to Childrens Court at Kaithal. However, in appeal, learned Additional Sessions Judge, Kaithal, set aside the order after noticing inherent anomaly. The Board once again passed a fresh order on 03.08.2018 sending the case to the Court of sessions for assigning the same to the Childrens Court. Appeal filed by the petitioner was dismissed by the learned Additional Sessions Judge, Kaithal vide order dated 21.08.2018. However, in revision, the orders were set aside and the Board was directed to follow the procedure as prescribed under the Act and the model Rules and pass a fresh order within one month. Concluding part of the order passed on 03.08.2018 is extracted as under:

'The Board is directed to follow the procedures as prescribed under the Act and the model rules, which although are model rules, but can be relied upon for guidance. The members of the Board would also keep in view the judgment passed in case of Bholu (supra). However, the Board would pass a final order, within one month, from the date of receipt of a certified copy of this order.'

4. Thereafter, the Board referred the juvenile for psychological examination while taking assistance from the Department of Psychiatry, PGIMS, Rohtak and also called for social investigation report of the juvenile. The application moved by the juvenile for examining couple of witnesses including a member of the Board of Psychiatrists was allowed. After taking into consideration the material on record, the Board passed impugned order dated 13.06.2019 holding that the juvenile was having mental and physical capacity to commit the alleged offence. He was in position to understand the consequences. The Board found that petitioner, on the date of alleged offence, was more than 16 years and therefore, can be tried along with adults as per the provisions of the Act.

5. This Court has heard learned counsel for the petitioner at length and with his able assistance, gone through the paper book. Learned counsel for the petitioner submitted that the Board, which is a multi member body has not passed an order and in fact it has been passed by the Principal Magistrate only. He further submitted that petitioner was not given an opportunity to cross-examine Dr. Joginder Singh Kairon and therefore, the procedure followed by the Board is erroneous.

6. As regards first argument of learned counsel, it will be noticed that this contention was also raised before the Court of Sessions and the Court of Se