A. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8(3), 14,15, 18(3) – Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 10, 10A – Juvenility of accused – Heinous offence – Trial as Adult or not -- Preliminary Assessment -- Section 15 is required to be strictly followed and determined so as to arrive at a conclusion as to whether the child is to be tried as an adult or not -- That exercise is called as `PRELIMINARY ASSESSMENT' -- Said parameters are as under :-

(i)  mental and physical capacity to commit such offence;

(ii) ability to understand the consequences of the offence;

(iii)            the circumstances in which he allegedly committed the offence.

Parameters (i) and (ii) are inter-related as the ability to understand the consequences of the offence would only be there in case the child has the mental capacity to do so -- For assessing the mental capacity, the Board has been given the liberty to take the assistance of experienced psychologists or psycho-social workers or other experts -- Preliminary assessment is not a trial;

--     Child has to be presumed to be innocent and bereft of any criminal intent upto the age of 18 years and would have the right to be heard and participate in all procedures and decisions effecting his best interest with due regard to his age and maturity;

--     No list of witnesses and documents were supplied to the petitioner or his parents or guardian, which itself shows that the Board as well as the Appellate Court have decided the case without any application of mind and contrary to the provisions of the Act and the Rules framed thereunder.

(Para 8-17)

B. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8(3), 14,15, 18(3) – Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 10, 10A – Juvenility of accused – Heinous offence – Trial as Adult or not -- Preliminary Assessment – Assessment based on inappropriate tests, namely, coloured Progressive Matrices (CPM) and Malin's Intelligence Scale for India Children (MISIC) meant for children between the ages of 5-11½ and 5-15 whereas child is 16½ years – Petitioner wanted to cross examine the psychologist regarding the same but his request was declined – Copies of the tests, in question, were not provided to the petitioner/parents/guardian but were shown just prior to the hearing of arguments -- Since the petitioner was 16.75 years old, when these tests were conducted on him, which were not correct tests and have resulted in wrong results -- Said expert himself stated in his report that it would be appropriate that further assessment be made by a higher authority – Orders set aside, case remanded back to the Board for afresh consideration after assessing the intelligency, maturity, physical fitness as to how the juvenile in conflict with law was in a position to know the consequences of the offence.

(Para 18-25)

C. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8(3), 14,15, 18(3) – Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 10, 10A – Juvenility of accused – Heinous offence – Trial as Adult or not -- Preliminary Assessment – IQ test of the petitioner was conducted when he was more than 16 years and 9 months of age -- An IQ of 95 at the age 16.75 would necessarily translate to 15.67 years, going by the formula for determining the mental age of any child, which is mental age/Biological Age x 100 -- This means that the petitioner-child has been determined to have a mental age of less than 16 years as per the report of socalled expert -- Even as per said report, the petitioner had to be necessarily treated to be below 16 years.

(Para 18)

D. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 8(3),14,15 – Juvenile Justice (Care and Protection of Children) Model Rules, 2016, Rule 10, 10A – Juvenility of accused – Heinous offence – Trial as Adult or not -- Preliminary Assessment -- Non giving of any statement of witnesses or documents etc. to the petitioner/guardian/parent, is absolutely in contradiction with the provisions of Rule 10(5) read with Sections 3(iii) and (xvi) read with Section 8(3) of the Act -- Plea of confidentiality is actually for the protection of the child from third party by considering the privacy of the child -- It cannot be interpreted that a delinquent child would not get a fair hearing, whereas, it is the requirement of Section 8(3) of the Act that the participation of the child and the parent or guardian is to be at every step of the process.

(Para 20-22)

E. Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 15, 102 – Revisional power -- As per provisions of Section 102 of the Act, in case, there is any illegality and perversity or there is non-compliance of mandatory provisions, High Court has a power to exercise the revisional jurisdiction.

(Para 24)

A. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Constitution of India, Article 15(3) -- Marital rape with girl child -- Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? – Held, Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not -- Exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved -- Artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child -- Artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions -- Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

 (Para 1, 105)

B. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 2(12, 2(14) -- Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 3 -- Marital rape/ Sexual inter-course with wife aged 15 to 18 years – Harmonious and purposive interpretation -- Entire issue of the interpretation of the JJ Act, the POCSO Act, the PCMA and Exception 2 to Section 375 of the IPC can be looked at from the perspective of purposive and harmonious construction of statutes relating to the same subject matter – There seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age -- Exception 2 to Section 375 of the IPC is to be read in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child -- To harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

(Para 99, 103, 105,108)

C. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 –Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Constitution of India, Article 14, 15, 21 -- Sexual inter-course with wife aged 15 to 18 years – Marital rape with girl child below 18 years -- Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–

(i)      it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;

(ii)     it is discriminatory and violative of Article 14 of the Constitution of India and;

(iii)    it is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.

This judgment will have prospective effect.

(Para 195)

D. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 198(6) -- Sexual inter-course with wife aged 15 to 18 years – Martial rape with wives below 18 years – Cognizance of -- Section 198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

(Para 196)

Punjab Civil and Criminal Courts, Preparation and Supply of Copies of Records Rules, 1965, Rule 3 – Right to get documents from pending Juvenile Trial -- Documents produced before Juvenile justice board – Application for supply of documents by other co-accused – Petitioner is not a stranger to the proceedings -- Documents in original are before the JJB having being exhibited and no prejudice would be caused to the prosecutrix, who is common to both trials, in case the documents are supplied to the petitioner -- However denial of the same to the petitioner will definitely hamper his defence.

(Para 2, 6-10)