Though, once again the expression used in Rule 13(1) is that the Children's Court may decide, however, Rule (6) uses the expression 'shall' and mandates the Children's Court to record its reasons while arriving at a conclusion whether the child is to be treated as an adult or as a child. {Para 19}
20. Rule 13(7) stipulates that in case the Children's Court decides that there is no need for trial of the child as an adult, then it shall decide the matter itself. It is thereafter to conduct an inquiry as if it was functioning as a Board and follow the procedure for trial in summon cases under Cr. P.C.
21. Rule 13(8) stipulates that in case the Children's Court decides that there is need for trial of the child as an adult, it is to follow the procedure prescribed by Cr. P.C. or trial by Sessions.
22. Reading of Rule 13 in conjunction with Section 19 of JJ Act clearly shows that it is obligatory on the part of the Children's Court to take a decision after receipt of the preliminary assessment report from the Board as to whether there is need for trial of the child as an adult or as a child. Appropriate speaking order recording reasons for arriving at the conclusion is to be passed by the Children's Court.
23. In the present case, once the preliminary assessment report was received from the Board opining that the child should be treated as an adult, record does not reveal any application of mind or an independent decision taken by the Children's Court in terms of Section 19 read with Rule 13(1) and 13(6). The Children's Court has thereafter proceeded on to frame charges by the impugned order.
24. Perusal of the record further shows that the testimony of the child victim has already been partly recorded before the trial court.
25. No doubt, the Children's Court has not passed an order under Section 19, independently taking a decision as to whether the petitioner is to be tried as an adult or as a child, the same in my opinion would not vitiate the proceedings, thereafter undertaken but, would be an irregularity which would be curable.
26. The reason for holding so, is that in both eventualities, i.e. trial as an adult and trial as a child, the proceedings have to continue before the Children's Court.
27. In terms of Rule 13 (7) in case the Children's Court decides that there is no need for trial of the child as an adult, then, it (Children's Court) has to conduct an inquiry as if it were functioning as a Board and following the procedure for trial of the summon cases.
28. In case the Children's Court decides to try the child as an adult, then, it (Children's Court) has to conduct the trial following the procedure of trial by Sessions Court.
29. In either eventuality, charge/notice which is to be framed on the same set of facts, would not be altered in so far as the offence is concerned. The only difference is as to the procedure to be followed by the Children's Court for trial.
30. Even the absence of a charge has been held by the Constitution Bench of the Supreme Court in Willie (William) Slanley Versus State of Madhya Pradesh (1955) 2 SCR 1140 to be a curable irregularity unless prejudice is caused.
CORAM:-
HON'BLE MR. JUSTICESANJEEV SACHDEVA
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