REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.950/2022
(arising out of SLP(Crl.) No.10123 of 2018)
BARUN CHANDRA THAKUR …APPELLANT(S)
VERSUS
MASTER BHOLU & ANR. …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.951/2022
(arising out of SLP(Crl.) No. 6347 of 2022
@Diary No.25451 of 2019)
CBI …APPELLANT(S)
VERSUS
BHOLU …RESPONDENT(S)
J U D G M E N T
VIKRAM NATH, J.
Signature Not Verified
Digitally signed by
SWETA BALODI
Date: 2022.07.13
17:29:49 IST
Reason:
Delay condoned.
1
2. Leave granted.
This Court is called upon to examine the proceedings
3.
arising out of preliminary assessment made under section 15
of the Juvenile Justice (Care and Protection of Children) Act,
1
2015 . In consonance with the provisions of section 74 of the
Act, 2015 following the orders passed by the Courts below, we
have used the name ‘ Bholu’ for the accused and ‘ Prince’ for
the victim.
4. These two appeals, one filed by the complainant and
other by the CBI, question the correctness of the judgment
and order dated 11.10.2018 passed by learned single Judge of
Punjab and Haryana High Court at Chandigarh in Criminal
Revision No.2366 of 2018, titled Bholu versus CBI, whereby
the revision was allowed; the order dated 20.12.2017 passed
2
by the Juvenile Justice Board , Gurugram and the order dated
21.05.2018 passed by the Additional Sessions
Judge/Children’s Court were set aside and the matter was
remanded to the Board for fresh consideration within a period
of six weeks from the date of receipt of certified copy of the
1 The Act, 2015.
2 ‘Board’ for short
2
order. Certain other directions were also issued. The operative
portion of the order dated 11.10.2018 is reproduced below:
“…In view of the facts and law position as
discussed above, the present petition is allowed
and impugned order dated 20.12.2017 passed by
the Juvenile Justice Board, Gurugram and order
dated 21.05.2018 passed by the Additional
Sessions Judge, Gurugram are set aside. The case
is 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. The necessary
exercise be done within a period of six weeks from
the date of receipt of certified copy of the order. It
is also relevant to mention here that while
conducting preliminary assessment, the opinion
of psychologist of the Government hospital be
obtained.”
5. Facts relevant for the adjudication of the present appeals
are as follows:
(i) An unfortunate incident took place on 08.09.2017
in an institution in Gurugram where a Class II
student (Prince) was found in the toilet with his
throat slit in an unconscious state at about 08.30
am. He was rushed to the hospital but was declared
brought dead. Initially the State Police on suspicion
arrested three persons, a driver of the school vehicle
and two officials of the school, but later on they
were released on bail.
3
(ii) In the meantime, the State transferred the
3
investigation to Central Bureau of Investigation .
The CBI, during its investigation, interrogated a
Class XI student (Bholu) from the same institution
on twothree occasions, thereafter arrested him on
4
07.11.2017 (respondent1, in both the appeals) .
(iii) From the material collected, it was found that the
date of birth of respondent was 03.04.2001. As the
date of the incident was 08.09.2017, he was aged 16
years 05 months and 05 days as on the relevant
date. There is no dispute about the date of birth of
the respondent.
6. As required by section 10 of the Act, 2015, the
respondent was produced before the Board by the CBI on
08.11.2017. The Board directed for placing the child in a
safety home. The parents of the respondent were informed.
5
Under section 13 of the Act, the Social Investigation Report
was prepared by the Legal Probation Officer and submitted on
27.11.2017 in the prescribed Form No. 6.
3 “CBI” for short
4 “the respondent” for short
5 Referred to as “SIR”.
4
7. Section 15 of the Act, 2015 mandates that where a child
in conflict with law has committed a heinous offence and is
above the age of 16 years, the Board would make a preliminary
assessment and pass appropriate orders in accordance with
the provisions of subsection (3) of section 18 of the Act, 2015.
8. In the present case, both the conditions required under
section 15 of the Act, 2015 were fulfilled as such the Board
undertook the exercise of making the preliminary assessment.
In that process, the Board called for a report from the expert
psychologist, also interacted with the respondent, considered
the SIR as also other material placed before it and proceeded
to pass an order on 20.12.2017 holding that there was need of
trial of respondent as an adult and accordingly, directed for
transfer of papers to the Children’s Court.
9. Against the order dated 20.12.2017, the respondent
preferred an appeal before the Children’s Court under section
101 of the Act, 2015. The Children’s Court, vide judgment and
order dated 21.05.2018, upheld the decision of the Board and
dismissed the appeal.
10. Aggrieved by the judgment of the Children’s Court, the
respondent preferred a Criminal Revision under section 102 of
5
the Act, 2015, before the High Court. The learned single
Judge vide judgment and order dated 11.10.2018 allowed the
Revision, set aside the orders passed by the Board as also the
Children’s Court and remanded the matter to the Board for a
fresh consideration. It is this order of remand passed by the
High Court, correctness of which has been assailed in the
present two appeals by the CBI and also the complainant.
11. The judgment of the High Court is dated 11.10.2018 and
as per its direction, Board was to decide the matter afresh
within six weeks. Assailing the order of the High Court, two
special leave petitions were filed before this Court. One by the
complainant registered as SLP (Crl.) No. 10123 of 2018 and
the other by the CBI registered as SLP (Diary No. 25451 of
2019). This Court while issuing notice in the first special leave
petition filed by the complainant Barun Chandra Thakur, also
passed an order of status quo on 19.11.2018. The special
leave petition filed by the CBI was clubbed/tagged with the
special leave petition of the complainant. These matters have
remained pending for over 3 ½ years. From the record we do
not find any effort on part of the parties for early hearing or
disposal of the two petitions for over 3 years. It was only in
6
January, 2022 that the counsel for the respondent requested
that the matter may be taken up for hearing as the respondent
is in custody for more than three years and very soon, he will
be completing 21 years of age. The matters were taken up on
a number of occasions and the arguments of both sides were
heard at length.
12. We have heard Shri Vikramjit Banerjee, learned
Additional Solicitor General for the CBIappellant, Shri Sushil
Tekriwal, learned counsel for the complainantappellant and
Shri Sidharth Luthra, learned senior counsel for the
respondent and perused the material on record.
13. Before proceeding to deal with the submissions
advanced, it would be appropriate to briefly refer to the
statutory provisions, the scheme of the Act, 2015 and the
necessity requiring a preliminary assessment under section 15
of the Act, 2015. Before coming of the Act, 2015, the Juvenile
6
Justice (Care and Protection of Children) Act, 2000 was in
force. Under the said enactment, all children below 18 years of
age were to be treated as juveniles and tried as such by the
Board. It was only after the coming of the Act, 2015, that a
6 Hereinafter referred to as ‘Act, 2000’
7
further category was carved out of juveniles between 16 to 18
years involved in heinous offences. They were subjected to a
preliminary assessment to ascertain whether they are to be
tried as a child by the Board or to be tried as an adult by the
Children’s Court. However, for those above the age of 16 years
and below 18 years, if the Board was of the opinion that the
said Juvenile should not be tried as an adult, the Board would
continue with the trial as envisaged under the Act, 2015.
14. The Act, 2000 and the Act, 2015 were enacted with the
following preamble:
“An Act to consolidate and amend the law relating
to children alleged and found to be in conflict with
law and children in need of care and protection by
catering to their basic needs through proper care,
protection, development, treatment, social re
integration, by adopting a childfriendly approach
in the adjudication and disposal of matters in the
best interest of children and for their
rehabilitation through processes provided, and
institutions and bodies established, hereinunder
and for matters connected therewith or incidental
thereto…”
Relevant provisions of Act, 2015
15. Chapter I consists of sections 1 and 2 (which is the
definition compendium). Section 2(9) defines the “best interest
of the child”; section 2(12) defines a “child” to mean a person
who has not completed 18 years of age; section 2(13) defines a
“child in conflict with law”; ‘Child friendly’ is defined under
8
section 2(15); the ‘Children’s Court’ is defined under section
2(20); ‘Heinous Offences’ is defined under section 2(33) to
include offences for which the minimum punishment is
imprisonment for seven years or more.
Chapter II consists of section 3 which provides for the
16.
general principles of care and protection of children to be
followed in the administration of the Act. According to it, the
Central Government, the State Government, the Board and
other agencies as the case may be, while implementing the
provisions of the Act shall be guided by the fundamental
principles enumerated in clauses (i) to (xvi). It would be
worthwhile to refer to some of the principles; clause (i)
Principle of presumption of innocence: any child shall be
presumed to be an innocent of any mala fide or criminal
intent; clause (iii) Principle of Participation: every child will
have a right to be heard and to participate in all processes and
decisions affecting his interest; clause (iv) Principle of best
interest: primary consideration in all decisions regarding the
child shall be in his best interest; clause (ix)
Principle of non
waiver of rights: it does not permit waiver of any of the right
9
of the child and even nonexercise of a fundamental right
would not amount to waiver; clause (xvi)
Principles of natural
justice: standards of fairness shall be adhered to including
the right to fair hearing, rule against bias and right to review
by all persons or bodies, acting in a judicial capacity under
this Act.
17. Chapter III consisting of sections 4 to 9 deals with the
constitution of the Board, the procedure in relation to the
Board, powers, functions and responsibilities of the Board.
Subsection (1) of section 4 provides for establishment of a
Board in every district which could be more than one, to
exercise powers and discharge functions relating to children in
conflict with law under the Act. Subsection (2) of section 4
defines the constitution of the Board. Subsection (3) provides
for the eligibility of the social workers to be appointed to the
Board. Subsections (4), (5), (6) and (7) further provide
eligibility for selection, disqualification, term and training as a
member of the Board. Section 5 provides that if during the
course of any inquiry by the Board, the child completes the
age of eighteen years then the Board will continue with the
10
inquiry to pass final orders as if such person has continued to
be a child. Section 6 provides that any person who has
completed eighteen years of age and is apprehended for
committing an offence when he was below the age of eighteen
years, then, subject to the provisions of this section, he would
be treated as a child during the process of the inquiry. Section
7 provides for sittings of the Board for transacting its
businesses. It also refers to the coram of the Board. Section 8
defines the powers, functions and responsibilities of the Board.
Section 9 provides for the procedure to be followed by a
Magistrate, who has not been empowered to exercise the
powers of Board under the Act, when he is of the opinion that
any alleged offender brought before him is a child. In that
case, the Magistrate would immediately record his opinion and
forward the child along with the record of proceedings to the
Board having jurisdiction.
Chapter IV comprising of sections 10 to 26 deals with the
18.
procedure in relation to children in conflict with law. Sections
10 and 11 provide for the apprehension of a child in conflict
with law and as to how he should be dealt with. Section 12
deals with bail to a person who is apparently a child alleged to
11
be in conflict with law. Section 13 provides that the parents,
guardians to be informed forthwith. Section 14 requires the
Board to hold an inquiry regarding a child in conflict with law,
such inquiry to be conducted and appropriate orders passed
under sections 17 and 18 of the Act, 2015.
19. Section 15 provides for preliminary assessment where the
alleged offence is heinous and where the child has completed
or is above the age of 16 years, the Board is required to
conduct the 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 after such assessment, pass an order in accordance with
subsection (3) of section 18. If the Board is of the opinion that
the child needs to be tried as an adult then the case be
transferred to the Children’s Court having jurisdiction to try
such offence. Otherwise, the Board itself will proceed to try the
matter as a summons case under the Code of Criminal
7
Procedure, 1973.
7 For short, ‘Cr.P.C.
12
20. Section 16 confers power on the Chief Judicial Magistrate
or the Chief Metropolitan Magistrate to review the pendency of
cases before the Board once in three months and may issue
necessary directions in that regard depending upon the
pendency.
21. Section 17 requires the Board to pass appropriate orders
where after inquiry, the Board is satisfied that the child has
not committed any offence. The Board may also pass
appropriate orders where the child is in need of care and
protection and refer him to the Child Welfare Committee.
22. Section 18 requires the Board to pass appropriate orders
where the child is found to be in conflict with law. Different
categories are provided and various powers are conferred on
the Board to take care of such children who are below the age
of sixteen years and have committed heinous offence and for
children up to the age of eighteen years who have committed
petty offence or a serious offence. Subsection (1) of section 18
and its various clauses from (a) to (g) confer a variety of powers
on the Board for issuing necessary directions. Subsection (2)
13
gives additional power to the Board providing for education,
training, counselling, deaddiction programmes and even
restricting the movement of the child, in his interest. Sub
section (3) provides that the Board if after the preliminary
assessment under Section 15 passes an order that there is a
need for trial of the child as an adult, then the Board may
order transfer of the trial of such a case to the Children’s
Court having jurisdiction.
23. Section 19 deals with the powers conferred on the
Children’s Court. The Children’s Court upon receipt of the
preliminary assessment from the Board will decide whether
there is need for trial of a child as an adult in accordance with
the Cr.P.C. and pass appropriate orders after trial subject to
the provisions of this section as also section 21. However, if
the Children’s Court feels that there is no need for trial of child
as an adult, then, it may conduct an inquiry as a Board and
pass appropriate orders in accordance with provisions of
Section 18. Subsection (2) of section 19 provides that the
Children’s Court will ensure that the final order with regard to
a child in conflict with law will include an individual care plan
14
for rehabilitation of the child including other directions. Under
subsection (3), the Children’s Court will ensure that a child in
conflict with law remains in a place of safety till he attains the
age of 21 years and thereafter is transferred to jail. Proviso to
subsection (3) ensures that reformative services including
education, skill development, counselling, behaviour
modification therapy and psychiatric support are provided
during the period the child is in a place of safety. Under sub
section (4), the Children’s Court is to ensure that there is a
periodic follow up report annually either by the Probation
Officer or the District Child Protection Unit or the Social
Worker for evaluation of the progress of the child and also to
ensure that there is no ill treatment to the child in any form.
24. Section 20(1) deals with the powers of the Children’s
Court with respect to the progress and evaluation of the child
even after he attains the age of 21 years and has not
completed the term of stay. Under subsection (2) of section
20, the Children’s Court after completing the procedure
provided under subsection (1) may pass an order either to
release the child on such conditions for the remainder of the
15
prescribed term of stay and or pass an order that the child will
complete the remainder of his term in jail.
25. Section 21 prohibits the sentencing of a child in conflict
with law to death or life imprisonment without the possibility
of release.
26. Under section 22 of the Act, it is mandated that Chapter
VIII of Cr.P.C., and any preventive detention law would not be
applied against any child.
27. Under section 23, there is a bar that a child in conflict
with law would not be tried with the person who is not a child.
28. Under section 24, a protection is provided that a child in
conflict with law will not suffer any disqualification under any
such law on account of offence being established against him.
However, this protection will not be available to the child who
has completed or is above the age of 16 years and is found to
be in conflict with law by the Children’s Court under Section
19(1)(i). Subsection (2) of section 24 provides for destruction
of records under different situations.
16
29.
Section 25 provides that all pending proceedings before
any Board or Court on the date of commencement of this Act
would continue in the same Board or Court as if this Act had
not been enacted.
Section 26 makes provisions with respect to run away
30.
children in conflict with law. The above takes care of the
various provisions contained in Chapter IV dealing with the
procedure in relation to children in conflict with law.
31. Under the Juvenile Justice (Care and Protection of
8
Children) Model Rules, 2016 , it is only rule 10(A) which refers
to preliminary assessment into heinous offences by the Board.
Subrule (1) mentions that the first thing to be determined by
the Board is the age of the child as to whether he is below or
above the age of 16 years which is to be done as per section 14
of the Act. Subrule (2) mentions that the Board may take
assistance of the experienced psychologists or psychosocial
workers or other experts who have experience of working with
children in difficult circumstances. It also provides that the
8 Hereinafter referred to as the “Model Rules”
17
District Child Protection Unit would have a panel of such
experts to be made available to the Board for its assistance or
otherwise the Board could access such experts independently.
Subrule (3) declares that the child shall be presumed to be
innocent unless proved otherwise while making the
preliminary assessment. Subrule (4) provides for the
consequential order to be passed by the Board where it holds
that the trial of the child is to be carried out as an adult for
which, it is required to assign reasons and further to provide
copy of order to the child forthwith.
We are not quoting all the provisions referred to above
32.
but only the provisions which are relevant, that are sections 4,
14, 15, 18 and 19 of the Act, 2015, as also rule 10A of the
Model Rules. The same are reproduced below:
“ Section 4: Juvenile Justice Board
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973, the
State Government shall, constitute for every
district, one or more Juvenile Justice Boards
for exercising the powers and discharging its
functions relating to children in conflict with
law under this Act.
(2) A Board shall consist of a Metropolitan
Magistrate or a Judicial Magistrate of First
Class not being Chief Metropolitan
Magistrate or Chief Judicial Magistrate
(hereinafter referred to as Principal
18
Magistrate) with at least three years
experience and two social workers selected in
such manner as may be prescribed, of whom
at least one shall be a woman, forming a
Bench and every such Bench shall have the
powers conferred by the Code of Criminal
Procedure, 1973 on a Metropolitan
Magistrate or, as the case may be, a Judicial
Magistrate of First Class.
(3) No social worker shall be appointed as a
member of the Board unless such person has
been actively involved in health, education,
or welfare activities pertaining to children for
atleast seven years or a practicing
professional with a degree in child
psychology, psychiatry, sociology or law.
(4) No person shall be eligible for selection as
a member of the Board, if he –– (i) has any
past record of violation of human rights or
child rights; (ii) has been convicted of an
offence involving moral turpitude, and such
conviction has not been reversed or has not
been granted full pardon in respect of such
offence; (iii) has been removed or dismissed
from service of the Central Government or a
State Government or an undertaking or
corporation owned or controlled by the
Central Government or a State Government;
(iv) has ever indulged in child abuse or
employment of child labour or any other
violation of human rights or immoral act.
(5) The State Government shall ensure that
induction training and sensitisation of all
members including Principal Magistrate of
the Board on care, protection, rehabilitation,
legal provisions and justice for children, as
may be prescribed, is provided within a
19
period of sixty days from the date of
appointment.
(6) The term of office of the members of the
Board and the manner in which such
member may resign shall be such, as may be
prescribed.
(7) The appointment of any member of the
Board, except the Principal Magistrate, may
be terminated after holding an inquiry by the
State Government, if he ––
(i) has been found guilty of misuse of
power vested under this Act; or
(ii) fails to attend the proceedings of the
Board consecutively for three months
without any valid reason; or
(iii) fails to attend less than threefourths
of the sittings in a year; or
(iv) becomes ineligible under subsection
(4) during his term as a member.
xxx xxx xxx
Section 14. Inquiry by Board regarding
child in conflict with law.
(1) Where a child alleged to be in conflict
with law is produced before Board, the Board
shall hold an inquiry in accordance with the
provisions of this Act and may pass such
orders in relation to such child as it deems
fit under sections 17 and 18 of this Act.
(2) The inquiry under this section shall be
completed within a period of four months
from the date of first production of the child
before the Board, unless the period is
extended, for a maximum period of two more
months by the Board, having regard to the
circumstances of the case and after
20
recording the reasons in writing for such
extension.
(3) A preliminary assessment in case of
heinous offences under section 15 shall be
disposed of by the Board within a period of
three months from the date of first
production of the child before the Board.
(4) If inquiry by the Board under subsection
(2) for petty offences remains inconclusive
even after the extended period, the
proceedings shall stand terminated:
Provided that for serious or heinous
offences, in case the Board requires further
extension of time for completion of inquiry,
the same shall be granted by the Chief
Judicial Magistrate or, as the case may be,
the Chief Metropolitan Magistrate, for
reasons to be recorded in writing.
(5) The Board shall take the following steps
to ensure fair and speedy inquiry, namely:
(a) at the time of initiating the inquiry, the
Board shall satisfy itself that the child in
conflict with law has not been subjected to
any illtreatment by the police or by any
other person, including a lawyer or probation
officer and take corrective steps in case of
such illtreatment;
(b) in all cases under the Act, the
proceedings shall be conducted in simple
manner as possible and care shall be taken
to ensure that the child, against whom the
proceedings have been instituted, is given
childfriendly atmosphere during the
proceedings;
21
(c) every child brought before the Board
shall be given the opportunity of being heard
and participate in the inquiry;
(d) cases of petty offences, shall be
disposed of by the Board through summary
proceedings, as per the procedure prescribed
under the Code of Criminal Procedure, 1973;
(e) inquiry of serious offences shall be
disposed of by the Board, by following the
procedure, for trial in summons cases under
the Code of Criminal Procedure, 1973;
(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 child above the age of sixteen
years as on the date of commission of
an offence shall be dealt with in the
manner prescribed under section 15.
Section 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 subsection (3) of section 18:
22
Provided that for such an assessment, the
Board may take the assistance of
experienced psychologists or psychosocial
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 subsection (2) of section 101:
Provided further that the assessment
under this section shall be completed within
the period specified in section 14.
xxx xxx xxx
Section 18: Orders regarding child found
to be in conflict with law.
(1) Where a Board is satisfied on inquiry that
a child irrespective of age has committed a
petty offence, or a serious offence, or a child
below the age of sixteen years has committed
a heinous offence, then, notwithstanding
anything contrary contained in any other law
for the time being in force, and based on the
nature of offence, specific need for
supervision or intervention, circumstances
23
as brought out in the social investigation
report and past conduct of the child, the
Board may, if it so thinks fit,—
(a) allow the child to go home after advice or
admonition by following appropriate inquiry
and counselling to such child and to his
parents or the guardian;
(b) direct the child to participate in group
counselling and similar activities;
(c) order the child to perform community
service under the supervision of an
organisation or institution, or a specified
person, persons or group of persons
identified by the Board;
(d) order the child or parents or the guardian
of the child to pay fine: Provided that, in case
the child is working, it may be ensured that
the provisions of any labour law for the time
being in force are not violated;
(e) direct the child to be released on
probation of good conduct and placed under
the care of any parent, guardian or fit
person, on such parent, guardian or fit
person executing a bond, with or without
surety, as the Board may require, for the
good behaviour and child’s wellbeing for any
period not exceeding three years;
(f) direct the child to be released on probation
of good conduct and placed under the care
and supervision of any fit facility for
ensuring the good behaviour and child’s well
being for any period not exceeding three
years;
24
(g) direct the child to be sent to a special
home, for such period, not exceeding three
years, as it thinks fit, for providing
reformative services including education,
skill development, counselling, behaviour
modification therapy, and psychiatric
support during the period of stay in the
special home:
Provided that if the conduct and behaviour
of the child has been such that, it would not
be in the child’s interest, or in the interest of
other children housed in a special home, the
Board may send such child to the place of
safety.
(2) If an order is passed under clauses (a) to
(g) of subsection (1), the Board may, in
addition pass orders to—
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting,
frequenting or appearing at a specified
place; or
(v) undergo a deaddiction programme.
(3) Where the Board after preliminary
assessment under section 15 pass an order
that there is a need for trial of the said child
as an adult, then the Board may order
transfer of the trial of the case to the
Children’s Court having jurisdiction to try
such offences.
Section 19: Powers of Children’s Court.
25
(1) After the receipt of preliminary
assessment from the Board under section
15, the Children´s Court may decide that—
(i) there is a need for trial of the child as an
adult as per the provisions of the Code of
Criminal Procedure, 1973 and pass
appropriate orders after trial subject to the
provisions of this section and section 21,
considering the special needs of the child,
the tenets of fair trial and maintaining a
child friendly atmosphere;
(ii) there is no need for trial of the child as
an adult and may conduct an inquiry as a
Board and pass appropriate orders in
accordance with the provisions of section
18.
(2) The Children’s Court shall ensure that
the final order, with regard to a child in
conflict with law, shall include an individual
care plan for the rehabilitation of child,
including follow up by the probation officer
or the District Child Protection Unit or a
social worker.
(3) The Children’s Court shall ensure that
the child who is found to be in conflict with
law is sent to a place of safety till he attains
the age of twentyone years and thereafter,
the person shall be transferred to a jail:
Provided that the reformative services
including educational services, skill
development, alternative therapy such as
counselling, behaviour modification therapy,
and psychiatric support shall be provided to
the child during the period of his stay in the
place of safety.
26
(4) The Children’s Court shall ensure that
there is a periodic follow up report every year
by the probation officer or the District Child
Protection Unit or a social worker, as
required, to evaluate the progress of the child
in the place of safety and to ensure that
there is no illtreatment to the child in any
form.
(5) The reports under subsection (4) shall be
forwarded to the Children´s Court for record
and follow up, as may be required.
xxx xxx xxx
Rule 10A. Preliminary assessment into
heinous offences by Board
(1) The Board shall in the first instance
determine whether the child is of sixteen
years of age or above; if not, it shall proceed
as per provisions of section 14 of the Act.
(2) For the purpose of conducting a
preliminary assessment in case of heinous
offences, the Board may take the assistance
of psychologists or psychosocial workers or
other experts who have experience of
working with children in difficult
circumstances. A panel of such experts may
be made available by the District Child
Protection Unit, whose assistance can be
taken by the Board or could be accessed
independently.
(3) While making the preliminary
assessment, the child shall be presumed to
be innocent unless proved otherwise.
(4) Where the Board, after preliminary
assessment under section 15 of the Act,
27
passes an order that there is a need for trial
of the said child as an adult, it shall assign
reasons for the same and the copy of the
order shall be provided to the child
forthwith.”
PROCEEDINGS BEFORE THE BOARD
33. In the present case, it is the preliminary assessment
made by the Board under section 15 of the Act, 2015, that the
respondent be tried as an adult, is under consideration.
34. The Board on record had the SIR submitted by the
Probation Officer in the prescribed format. It had also
interacted with the respondent on two occasions, firstly, when
he was produced after being apprehended before the Board
and secondly, at the time when it was conducting preliminary
assessment and allowed the respondent to address the Board.
The Board on 22.11.2017 had also called for report from one
expert psychologist.
35. On behalf of the respondent, applications were filed
before the Board, to comply with the provision of section 74 of
the Act, 2015; another application was filed to provide the
copy of the SIR, a copy of the psychologist report and to lead
evidence in rebuttal; and a third application was filed praying
28
for deferment of the preliminary assessment till such time the
investigating agency submits its report under rule 10(5) of the
Model Rules. The Board vide order dated 13.12.2017 passed
separate orders on these applications. Firstly, it allowed the
application under section 74 to protect the identity of the
child. Secondly, it rejected the other two applications. In so far
as the application for providing documents was concerned, the
Board observed that access to the same would be given during
the time of hearing for 30 minutes. The third application for
deferment of the proceedings was rejected simpliciter. The
Board thereafter proceeded to pass the order of preliminary
assessment on 20.12.2017.
36. Before the Board, the counsel for the respondent had
raised the following arguments:
(i) The intent of legislature was never to send all
Juveniles above the age of 16 years involved in
heinous offences to be tried as adults.
(ii)The Investigating agency had not completed the
investigation and no interim report or final report
had been placed before the Board.
(iii) There was no compliance of rule 10(5) of the Model
Rules, as such the Board could not proceed with the
29
preliminary assessment under section 15 as it would
be incapacitated to make an assessment.
(iv) Due and adequate opportunity was not provided as
copies of the SIR and reports of the expert
psychologists were not supplied to the respondent or
his guardian or counsel.
(v) There was no previous history or criminal
antecedents of the respondent. There was no report
of any previous violence by the respondent.
(vi) Even the reports of the experts were not complete
and the recommendation given for further
assessment by superior organization was not
resorted to by the Board.
(vii) The expert reports were not conclusive.
(viii)The SIR reflected that the respondent had good
behavior with friends, teachers and neighbors.
(ix) Lastly, it was argued that the theory propounded
by the CBI that the crime was committed to get the
examinations postponed could not have been a
probable reason.
The Board considered all the submissions and after
37.
discussing all the four aspects of section 15 regarding mental
capacity and physical capacity to commit the offence, ability to
understand the consequences of the offence and the
30
circumstances under which allegedly the offence was
committed, came to the conclusion that respondent should be
tried as an adult and, accordingly, passed an order under
section 18(3). Relevant portion of the Juvenile Justice Board’s
order dated 20.12.2017 is reproduced below:
“13. It is alleged that on dated 08.09.2017,
Juvenile in conflict with law Bholu in the area
of P.S. Bhondsi committed the Murder of
Master Prince in the premises of Ryan
International School, Bhondsi. On the day of
commission of alleged Act age of Juvenile in
conflict with law was above 16 years. It is
relevant to mention here that for the purpose
of preliminary assessment of Juvenile and to
find out what is the physical and mental
capacity of juvenile, ability to understand the
consequences of offence by juvenile and the
circumstances in which he committed the
alleged offence, the juvenile has been heard
personally by the board on 22.11.2017 and
various questions have been put to him in
order to assess his capacity to commit and
understand the consequences of the acts
which culminated in to registration of present
F.I.R. against and juvenile in conflict with law
Bholu gave answer to all questions very
confidently. This board can well recall the time
when juvenile in conflict with law produced
before it during personal hearing of juvenile in
conflict with law, he fairly explained the
circumstances in which he committed the acts
resulted in to present inquiry along with the
manner of commission thereof and now during
the time of recording his statement for
preliminary assessment when juvenile in
conflict with law narrated a different story
excluding his role in the alleged incident well
31
indicates that juvenile in conflict with law also
knows to cook up a story in order to save
himself which in turn goes to show that he
has adequate mental capacity.
*
16. Over all conclusion of Social Investigation
report of Juvenile in conflict with law shows
that he is below average student in studies
but good in music especially in piano. He is
aggressive in nature and also shouted over
other students. He used to consume liquor
and also used mobile phone in school
premises. He is very short tempered, restless
boy and also lacks stability. Just after alleged
incident he appeared in exam but was upset
and not writing anything in exam and on
asking by teacher Deepshikha he disclosed to
her that he saw a child was fallen and blood
was coming from his body and due to that
reason he was upset. Juvenile also remain
upset due to quarrel between his parents.
17. As per section 15 of the act in order to
preliminary assessment of juvenile in conflict
with law the board can take the assistance of
any psychologist or any other expert. This
board was of the opinion that in this matter
there is need of assistance of a psychologist
for the preliminary assessment of juvenile in
conflict with law so report of psychologist also
sought in this matter. Dr. Joginder Kairo
Clinical Psychologist, P.G.I.M.S., Rohtak in his
report conducted two tests on juvenile in
conflict with law to prepare his report. After
both tests he give his finding that IQ of
juvenile in conflict with law noted to be 95 in
the category of average intellectual
functioning. I.Q95 showing average
intelligence. This report also shows that it is
suggested by the expert that if require further
32
assessment the juvenile in conflict with law
may be sent to Institute of Mental Health,
University of Health Sciences, Rohtak. This
boards feels it not necessary to sent the
juvenile to Institute of Mental Health,
University of Health Sciences, Rohtak for any
further assessment because from the report of
psychologist it is clear that I.Q. level of
juvenile in conflict with law is average.
18. After having considered all the record and
having heard both the sides and the juvenile
personally, this board is of the considered
opinion that juvenile in conflict with law Bholu
had sufficient mental and physical capacity to
commit the offence alleged against him and
also he had the adequate ability to understand
the consequences of the acts committed by
him.
19. Bholu is well built boy and is studied in
th
11 class. Juvenile himself stated before this
board that he is physically and mentally fit
and not suffering from any kind of disease.
His I.Q. level shows that he is mentally fit
so it can not be said that he did not know
the consequences of acts alleged to be
committed by him . During the personal
hearing, juvenile admitted that he confessed
before this board but same was under
pressure of CBI. During his statement he was
asked a specific question that he requested
from this board that he wants to reside with
CBI but he answered that he requested as CBI
asked him to do so. It is not possible that CBI
tortured him, beaten him but despite that he
requested to stay with CBI just on their
asking. He also stated that he knew very well
that present case registered upon him
regarding the murder of a child, he do not
knew this name despite the fact that child also
33
learn music with him. He also stated that he
was the witness of this incident as he saw
Prince first in injured condition. From the
statement of juvenile recorded during his
personal assessment, it indicates that he is
mature enough and all these facts satisfied
this board to conclude that juvenile Bholu
was having sufficient maturity and ability
to understand the consequences of action
on the day of alleged occurrence.
20. In view of the above discussion, this board
of the considered opinion that there is a need
of trial of juvenile in conflict with law
Bholu as an adult. Consequently, in view of
Section 18(3) of Juvenile Justice (Care &
Protection of Children) Act, 2015 the case
stands transferred to the Ld. Special
Children’s Court, Gurugram. Case file be put
up before Ld. District & Sessions Judge,
Gurugram with a request to transfer the same
to Ld. Children Court having jurisdiction to try
the matter. Juvenile in conflict with law Bholu
Singh… Raghav is also directed to produce
before the Ld. District & Sessions Judge,
Gurugram on 22.12.2017. File complete in all
respect be sent to the court of Ld. District &
Sessions Judge, Gurugram well in time.
(emphasis supplied)”
In appeal, on behalf of the respondent, similar arguments
38.
were raised before the Children’s Court which also dealt with
the same in detail and approved the decision taken by the
34
Board. Relevant portion of Children’s Court’s order dated
[
21.05.2018 is reproduced below:
“17…………So impugned order cannot be said
as having been passed without any application
of mind and contrary to the statutory
provisions. The statement of the ‘JCL’ before
the Board recorded for the purposes of
preliminary assessment, the Expert Reports,
the sequence of the occurrence running
narrated by the investigating agency all are
well reflecting the mental and physical
capacity of the ‘JCL’ and the circumstances in
which he allegedly committed the murder of
‘Prince’ and his ability to understand the
consequences of said offence and these all are
straightaway running against the appellant.
18. It is not out of place to mention here that
an order qua need for trial of child as an adult
required to be passed by the Board as per
provisions contained under Section 18(3) of
the Act after making a preliminary assessment
in case of heinous offences is only on the basis
of satisfaction of the Board by exercising its
judicious acumen for which calling of expert
opinion is also left at his discretion. By adding
explanation to Section 15(1) it is clarified that
preliminary assessment is not a trial. No right
to second appeal is provided under the Act
against such an order. It all indicated that
intention of legislation is to recognize the
wisdom of the Board regarding forum of trial
of a child falling in the age of 1618 years
running charged with heinous offence. If there
is no blatant misuse of said authority and no
irregularity going to the depth of the matter
the discretion exercised by the Board is
required to be honoured.
35
19. Before concluding, this court would also
like to comment regarding statutory provisions
contained under Sections 3(x) & 99 of the Act
as learned defence counsel have argued at
length for said provision. As per clause (I) of
Section 99, all reports related to child and
considered by the Committee or the Board
shall be treated as confidential. The proviso
attached to this clause prescribes that
Committee or the Board, as the case may be,
may, if it so thinks fit, communicate the
substance thereof to another Committee, or
Board or to the child or to the child’s parent or
guardian, and may give such Committee or
the Board or the child or parent or guardian,
an opportunity of producing evidence as may
be relevant to the matter stated in the report.
Clause (II) of Section 99 then prescribes that
notwithstanding anything contained in this
Act, the victim shall not be denied access to
their case record, orders and relevant papers.
Learned defence counsel has gone making
much stress over the clause(II) and has gone
asserting that since victim shall not be denied
access to the case record and relevant papers
as Section 3(x) while prescribing general
principles to be followed in administration of
Act recognizes the principle of equality and
postulates that there shall be no
discrimination against a child on any grounds
including sex, caste and equality of access,
opportunity and treatment, so child/’JCL’
should also be given a right of access to the
confidential reports also at par with the victim
which Juvenile Justice Board has denied to
the appellant. This court finds no
discrimination with the child/’JCL’ by the
provisions of Section 99. Once Section 99
declares all reports to be treated as
confidential, then they are confidential for
both the parties and even victim would not be
36
having a right to obtain the certified copy of
such a report in the name that victim shall not
be denied access to the case record, orders
and relevant papers. The access to the victim
to confidential reports is not permitted in very
words while granting him access to all other
relevant papers and the case record under
clause (II) of Section 99, so clause (I) of Section
99 will prevail which restricts said access to
all and sundry. Since in the present matter no
copy of confidential report has ever been
supplied to victim, so it does lie in the mouth
of appellant/’JCL’ that he is being
discriminated so far the right to access to
confidential reports is concerned.
20. In view of the above discussions, the
impugned order show that the Juvenile
Justice Board has considered the correctness,
legality and propriety of the matter and did
not act with any irregularity at the time giving
findings of fact relating to appellant. There is
no illegality, perversity or infirmity in the
impugned order. The appeal lacks merits and
appeal
is liable to be dismissed. The is,
accordingly, dismissed. Papers be tagged with
the main case file of the trial titled as “State
Vs. Bholu” running fixed for 04.07.2018 for
hearing the parties on the aspect of charge.”
39. The order of the Children’s Court dated 21.05.2018 was
challenged by way of criminal revision before the High Court.
The High Court allowed the criminal revision and after setting
aside both the impugned orders passed by the Additional
Sessions Judge as also the Board, remanded the matter to the
37
Board for fresh consideration after assessing the intelligence,
maturity and physical fitness as to how the child in conflict
with law was in a position to know the consequences. It also
provided that the necessary exercise be taken within a period
of six weeks and further that while conducting the preliminary
assessment the certificate of the psychologist of the
Government hospital be obtained.
40. What weighed before the High Court was:
(i) There was violation of principles of natural justice
and fair play as adequate opportunity was not
provided;
(ii) Copies of documents relied upon by the Board were
not provided to the respondent;
(iii) The reports of the experts were incomplete;
(iv) The recommendation by the expert to refer the
child to higher organization for assessment was
not acted upon by the Board;
(v) The two tests conducted by the experts were
apparently not relevant and related to children of
different ages;
(vi) That the Board and the Children’s Court had no
material before them to assess as to how the
respondent knew the consequences of the offence
38
and also the circumstances in which he allegedly
committed the offence; and
(vii) The findings by the Board and the Children’s
Court were without any material and reasoning.
41. Relevant extracts from the judgment of the High Court
are as under:
“…The proviso to Section 15 enables the Board to
take the assistance of any experienced
psychologist or other experts to make the
Preliminary Assessment. It is clearly mentioned in
para No.17 of order dated 20.12.2017 passed by
the Board that in case, the opinion/assistance of
any expert is required, the same be taken. It is
necessary to assess the mental capacity of the
juvenile. It was mandatory for the Board to assess
the mental capacity of the alleged offender to
commit such an offence and also the ability to
understand the consequences of the same. It is
also clear from the order that the clinical
psychologist has himself suggested that if any
further assessment is required, the juvenile may
be sent to the Institute of Mental Health at
Rohtak. However, it has completely been ignored
by the Board and the assessment is 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 511½ and 515 has been taken as the
basis for the determination of the mental capacity
of a child of 16½ years. Both the Board as well as
the Appellate Authority have completely ignored
this fact. The petitioner wanted to cross examine
the psychologist regarding the same but his
request was declined and no permission was
granted to him. The social investigation report is
also self contradictory and the same is not worth
considering. The copies of the tests, in question,
were not provided to the
petitioner/parents/guardian but were shown just
39
prior to the hearing of arguments. It was not
practically possible to understand 35 pages of the
report by any layman in a time period of less than
30 minutes. However, in a time period of 30
minutes, the petitioner got to have a look at the
record of Dr. Joginder Singh Kairo, Clinic
Psychologist. It came out that he had carried the
assessment on the basis of two tests i.e (i)
Coloured Progressive Matrices (CPM) and (ii)
Malin's Intelligence Scale for Indian Children
(MISIC). The petitioner (represented by his father)
and his counsel were having no idea about these
tests. Subsequently, they tried to find out and
came to know that those tests were absolutely
irrelevant to the case of the petitioner and could
not be used for making the mental assessment of
the petitioner. The basic book on Clinical Child
Psychology written by Radhey Sham and
Azizuddin Khan categorically states that Malin's
test of Intelligence for children is made for 5 to 15
years of children. 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. This resulted in the petitioner doubting
the credentials of the so called experts. Only
because of this reason, the petitioner not only
sought copies of the reports but also wanted to
cross examine them so as to check the veracity
and the credentials of the experts and their
reports. However, he was not allowed in spite of
specific request and averments made to that
effect, leading to travesty of justice. The 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
petitionerchild has been determined to have a
mental age of less than 16 years as per the report
of so called expert. Even as per said report, the
40
petitioner had to be necessarily treated to be
below 16 years. As the tests in question, in any
case, are for children below the age of 15 years,
the IQ of 95, determined by these tests, would
obviously translate to a mental age of much less
than 15 years in any case….
xxxx
The Appellate Court has further held that there
was no requirement of giving any statement of
witnesses or documents etc. to the
petitioner/guardian/parent, which 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. As a matter of fact, all
provisions of the Act as well as the Rules made
thereunder have to be read harmoniously, to
achieve the objective of the Act.
However, learned counsel for the respondentCBI
has tried to convince the Court by stating that the
reports/documents are not required to be
supplied by considering the factum of
confidentiality.
The plea of confidentiality as submitted by
learned counsel for the respondentCBI 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. Section 3 especially states
that a positive interpretation has to be given to
ensure that an environment is created so that the
child should feel comfortable. The confidentiality
is required with regard to third party just to
protect the interest of the child. All the reports
related to the child and considered by the
Committee or by the Board are required to be
treated as confidential subject to the proviso.
41
Even the Central Bureau of Investigation has also
admitted in the proceedings before the Board as
well as the Appellate Authority that it does not
have such officers, who are specially trained to
undertake such investigation, involving children.
Meaning thereby, it is clear that the Central
Bureau of Investigation does not have such an
infrastructure to conduct the investigation for
reaching to its logical conclusion keeping in view
the special provisons of the Act. All these grounds
were mentioned before the Appellate Authority but
were not taken into consideration.
The argument raised by learned counsel for the
respondentCBI that this Court has a limited
jurisdiction to invoke in the revision petition, does
not carry any weight because 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, this Court
has a power to exercise the revisional jurisdiction.
This view has been supported by the law laid
down in cases Jagannath Choudhary vs Ramayan
Singh 2002(2) RCR (Criminal) 813 and Rajinder
Singh vs Vishal Dingra 2015(8) RCR (Criminal)
453.
In view of the facts and law position as discussed
above, the present petition is allowed and
impugned order dated 20.12.2017 passed by the
Juvenile Justice Board, Gurugram and order
dated 21.05.2018 passed by the Additional
Sessions Judge, Gurugram are set aside. The case
is 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. The necessary
exercise be done within a period of six weeks from
the date of receipt of certified copy of the order. It
is also relevant to mention here that while
conducting preliminary assessment, the opinion
of psychologist of the Government hospital be
obtained.”
42
ARGUMENTS ON BEHALF OF COMPLAINANTAPPELLANT:
42. The arguments of Mr. Sushil Tekriwal, learned counsel
on behalf of the complainantappellant are summarised below:
(i) ‘Best interest of child’ or ‘presumption of innocence’
etc. does not mean immunity from criminal charges.
Intent of the act is to reform the child in conflict
with law and also to subject them to penal
consequences.
(ii) Children aged 1618, prosecuted for heinous
crimes have been assigned a separate class by
legislature, therefore, they may be denied the
protective cover. The purpose of this Act is not to
give shelter to accused of heinous offences.
(iii) The respondent fulfils all the conditions laid
down under section 15 of the Act, 2015 and the
Board had rightly held that he should be tried as
an adult.
Law is clear that the Board ‘may’ take help of
(iv)
experienced psychologists, psychosocial workers
or other experts. The word ‘may’ has to be read as
‘may’ only and the legislative competency to make
43
the enactment in question is not in controversy.
Even section 101(2) of the Act, 2015 uses the word
‘may’ with respect to opinion of medical expert.
(v) Findings of the Medical Board should have been left
to medical experts as Courts have no expertise in
such matters. The opinion of the Medical Board is
final and cannot be questioned before the Court.
(vi) Social and medical report was provided to all the
stakeholders. However, the request for cross
examination was declined on the ground that
section 15 is only a preliminary assessment and
not a trial. Further, according to section 99 of the
Act, 2015 all the reports related to the child
considered by the Board be treated as confidential.
(vii) Revisional jurisdiction of the High Court under
section 102 is limited with regard to the power to
call for and examine the records of an inferior
Court in order to satisfy itself of the legality and
propriety of proceedings or orders made in cases.
(viii) There is no illegality in concurrent findings of
the two Courts below. The High Court broadened
its jurisdiction too far, going into correctness of
44
the medical board report and the correctness of
various other factual aspects.
(ix) The issue of remanding the case for fresh
consideration is redundant now in terms of its
impossibility of performance.
(x) In support of the above submissions, Mr. Tekriwal
has placed reliance on the following judgments:
(a) Kishan Paswan v. UOI (Civil Misc. W.P. No.
5044 of 2020){paras 28(97) and 35 (v)} ,
(b) Mukarrab v. State of UP, (2017) 2 SCC 210
(para 27),
(c) Controller of Defense Accounts (Pension)
and ors. v. S. Balachandran Nair (2005) 13
SCC 128 ,
(d) Amit Kapoor v. Ramesh Chander & Anr
(2012) 9 SCC 469 (paras 12 and 13),
(e) Rajendra Rajoriya v. Jagat Narain Thapak
and Anr (2018) 17 SCC 234,
(f) Jabar Singh v. Dinesh (2010) 3 SCC 757,
(g) Chandavarkar Sita Ratna Rao v. Ashalata
S. Guram (1986) 4 SCC 447,
(h) Madanlal Fakirchand Dudheya v. S.
Changdeo Sugar Mills, 1962 AIR 1543,
(i) Chinnamar Kathiam v. Ayyavoo, AIR 1982
SC 137,
(j) Jyoti Prakash Rai @ Jyoti Prakash v. State
of Bihar, (2008) 15 SCC 223 and
(k) Kent v. United States (383, US, 541, 1966).
45
ARGUMENTS ON BEHALF OF CBIAPPELLANT:
43. The arguments of Shri Vikramjit Banerjee, learned
Additional Solicitor General on behalf of the CBIappellant are
summarised below:
(i) The counsel for the CBI drew attention to the
Statement of Objects and Reasons of the Act, 2015,
wherein the systems under the Act, 2000 are
deemed as illequipped to tackle 1618 year old
offenders, and an observation about a rapid
increase in heinous child offenders of the said age is
also elucidated upon.
(ii)The counsel also highlighted the provisions under
section 15 of the said Act which provide for
preliminary assessment on commission of heinous
crimes by children above 16 years to be conducted
by the Board, which ‘may’ take the assistance of
experienced psychologists, psychosocial workers, or
other experts.
(iii) It was also submitted that this preliminary
assessment is distinct from a trial.
46
(iv) The counsel also referred to section 103 of the Act,
2015, which lays down the requirement to follow as
far as possible, procedure laid down by the Cr.P.C.,
during Board inquiries for trials of summons cases.
(v) The counsel accentuated rules 10 and 10A of the
Model Rules. Rule 10A permits the Board to take
assistance from psychological experts and social
workers while making the preliminary assessment
which has been followed by the Board.
(vi) Rule 10(5) which mandates the Child Welfare Police
Officer to produce the statements of witnesses
recorded by him and other documents produced
during the course of investigation within a month
from the date of the child’s first production before the
Board. Copies of the same to be given to the child or
his parent/guardian, were also brought forth and
highlighted.
(vii) There is no requirement under the Act, 2015 for the
final investigation to be completed before the
preliminary assessment takes place. Moreover, the
Act, 2015 necessitates abidance by the Cr.P.C. to the
maximum extent, therefore, in line with the same,
47
the accused cannot be provided with the case diary
during investigation. Reference is also made to
section 99 of the Act, 2015 regarding confidentiality.
Hence, the counsel contends that rule 10(5) of the
Model Rules must be read down. The High Court
committed an error in holding otherwise.
(viii) For the preliminary assessment, the Board must
consider the mental and physical capacity of the child
to commit the offence, and this assessment has to be
completed within three months of the child’s first
production before the Board after which, a re
assessment is impermissible.
(ix) The judgement of the High Court was also attacked
by asserting that the requirement for cross
examination of the psychologist, and supply of the
expert’s reports to the respondent or his guardians
prior to the passing of the preliminary assessment was
erroneous.
(x)The requirement to complete the investigation within a
month from the first date of production of the child
before the Board and to supply a copy of the final
report to the child or his parents, prior to the making
48
of the preliminary assessment was also called into
doubt.
(xi) The CBI attempted to prove its proper conduct by
asserting that Bholu was treated in a childfriendly
manner, and examined in line with the Act, 2015 and
was apprehended in the presence of his father and
other requisite authorities.
(xii) The CBI claims that Bholu was interviewed in a
cautious and friendly manner, in the presence of the
Probation and Child Welfare Officer, along with
independent witnesses. Moreover, he voluntarily
admitted his involvement in the murder of Prince, and
was sent to an Observation Home, post his
apprehension, instead of being held in a lock up.
(xiii) Since the CBI was not able to satisfactorily complete
its investigation, the Board granted three days of
judicial custody of Bholu, wherein he was to be
accompanied by a Board member, and placed at Seva
Kutir (Observation Home), post his custody.
(xiv) In support of the above submissions, Mr. Vikramjit
Bannerji has placed reliance on the following
judgments:
49
(a) Balkaram v. State of Uttarakhand & Ors. (2017)
7SCC 668 ,
(b) Shilpa Mittal v. State of NCT & Another, Crl.
Appeal No. 34 of 2020,
(c) G. Sundarrajan v. Union of India & Ors. (2013) 6
SCC 620.
ARGUMENTS ON BEHALF OF RESPONDENTBHOLU:
44. The arguments of Mr. Siddharth Luthra, learned Senior
Advocate on behalf of the respondent are summarised below:
(i) The essential modification in the Act, 2015 is the
exception created for the age of 16 to 18 years. In cases of
heinous offences, as defined under section 2(33) of the
Act, 2015, a child can be treated as an adult subject to
the inquiry to be carried out in terms of sections 14 and
15. This Court held that, while interpreting the scheme of
the Act, the interests of children should be protected and
to treat them as adults is an exception to the rule.
(ii) While conducting an inquiry under the Act, the Board
has to keep in mind the overall scheme of the Act.
(iii) The Act, 2015 provides that the Investigating Officer
must be a trained Police Officer, capable of dealing with
50
children and designated as a Child Welfare Police Officer
(CWPO). However, in this case the IO was not a designated
CWPO under the Act. Section 107 further requires the
creation of a special juvenile police unit to “exclusively
deal with the children” and with “aptitude, appropriate
training and orientation”.
(iv) The child was kept in police lockup and subsequently a
confession was extracted from him which was relied upon
by the Board. The same is contrary to rule 8(3)(v) and to
the principle of presumption of innocence enshrined under
section 3(i) of the Act, 2015 read with rule 10 A (3) of the
Model Rules.
(v) Due to the nonsubmission of documents to the child
prior to the hearing, sections 8(3)(a) and 8(3)(b), section
14(5)(c) as well as section 3 of the Act, 2015 were
violated. Additionally, granting only 30 minutes was
insufficient to peruse and scan through the record.
(vi) On the date of the psychological assessment, the
respondent was aged 16 years and 7 months. However,
the tests administered to him were appropriate for
children upto 11 years (CPM) and 15 years (Malins).
According to the psychologist, Dr Kairo, the respondent
51
was found to be cooperative and communicative. On the
basis of the tests administered his IQ was noted to be 95,
and it was further noted “If required further assessment,
he may be sent to Institute of Mental Health, University
of Health Sciences, Rohtak.”
(vii) The entitlement of respondent to access the records
before the preliminary assessment takes place, is
challenged by the appellants under section 99 of the Act,
2015. Section 14(5)(c) provides that every child brought
before the Board shall be heard and permitted to
participate in the inquiry and rule 10(5) states that a
copy of the statement of witnesses recorded by him shall
also be given to the child or parent or guardian of the
child.
(viii) Reliance has been placed on the statement of the
Hon’ble Minister for Women and Child Development in the
Lok Sabha during the discussion on the Juvenile Justice
(Care and Protection of Children) Bill, 2014 stating that
the assessment of the Board is not onesided and the
Board will take due notice of the views of the child.
(ix) With respect to the plea of CBI to read down rule 10(5) of
the Model Rules, the counsel submitted that reading down
52
the said rule was not raised before the High Court or this
Court before filing of the written submissions.
Alternatively, a provision can be read down to save it from
being declared unconstitutional or illegal, which is not so
in the present case. There being no challenge towards
constitutionality, any attempt towards this would be in
conflict with the objects of the Act.
(x) By using words such as “clever” and reading the alleged
confession against him being a complete violation of
Article 20(3), the Board has clearly gone contrary to the
principle of presumption of innocence provided under
section 3(i) of the Act, 2015 read with rule 10A(3) Model
Rules and section 3(viii) which mandates that there shall
be no adversarial or accusatory words used in involving a
child.
(xi) The Board failed to take into account the statement of the
respondent that CBI called him inside, beat him up and
asked him to speak and erroneously concluded that the
respondent had sufficient mental and physical capacity to
commit the offence.
(xii) In the order dated 20.12.2017, the Board read the
confession of the respondent against him but later the
53
Board stated that at this stage it is not to be seen
“whether juvenile in conflict with law is guilty or not, he
confessed or not, if confessed then it was voluntary or
under pressure.”
(xiii) The circumstances in which the child allegedly
committed the offence were not put before the Board nor
was the chargesheet placed to enable it to form its
opinion.
(xiv) The word “may'' occurring in section 15 and section
101(2) has to be construed as “shall”.
(xv) It is to be noted that neither the SIR nor the report of Dr.
Joginder Kairo indicate the mental age of the child. Dr.
Kairo had advised a further assessment but the same was
not done and the Board went ahead with determining the
age of the child.
(xvi) Section 102 of the Act allows for exercise of revisional
jurisdiction on the grounds of legality and propriety. The
High Court correctly noted the perversity in reasoning of
the Board and the Sessions Court, consequently it rightly
set aside the aforementioned orders.
(xvii) Respondent continues to remain in the observation
home and has completed 4.5 years in custody. During his
stay he has interacted with people from all walks of life and
54
was accused of different heinous offences. It would not be
possible to assess his mental and physical capacity and
understanding at this stage. It would be in the interest of
justice that he may be treated as a child and not as an
adult, since he has lost his valuable right under sections 14
and 15 of the Act, 2015.
(xviii) In support of the above submissions, Mr. Luthra has
placed reliance on the following judgments:
(a)Shilpa Mittal v. State of NCT & Another, Crl.
Appeal No. 34 of 2020(paras 1, 30, 31 and 34),
(b) Bachahan Devi & Anr. v. Nagar Nigam,
Gorakhpur, (2008) 12 SCC 372),
(c) Ankush Shivaji Gaikwad v. State of
Maharashtra (2013) 6SCC 770 (paras 52 and
53),
(d)State of Bank of Travancore v. Mohammed
Mohammed Khan (1981) 4 SCC 82 (paras 19 to
23)
(e) Som Prakash Rekhi v. Union of India (1981) 1
SCC 449 (para 63)
(f) Pratap Singh v. State of Jharkhand, (2005) 3
SCC 551 (Paras 7 and 10),
(g)Salil Bali v. Union of India & Another, (2013)
7SCC 705 (paras 43 and 63),
55
(h)Province of Bombay v. Kusaldas S. Advani, 1950
SCR 621 (para 16)
(i) State of Andhra Pradesh v. A.P. Wakf Board,
2022 SCC Online SC159 (para 143),
(j) Superintendent & Remembrancer of legal
affairs West Bengal v. Satyen Bhowmik, (1981)
2SCC 109 (paras 20 to 22),
(k)Nitya Dharamananda v. Gopal Sheelum Reddy,
(2018) 2SCC 93 (paras 5 to 9),
(l) In re: Criminal Trials Guidelines regarding
inadequacies and Deficiencies v. State of
Andhra Pradesh and ors. (2021) 10 SCC 598
(para 11),
(m) Union of India v. INDSwift Laboratories Limited
(2011) 4SCC 635,
(n) Nazir Ahmad v. King Emperor 1936 ILR 372
(pg. 378 to 383)
(o) The King v. Saw Min, 1938 SCC Online Rang 68
(pg. 1,10)
(p)Mahabir Singh v. State of Haryana (2001) 7scc
148 (pg. 19,21,22)
(q) Opto Circuit India Ltd. v. Axis Bank (2021)
6SCC 707 (para 14)
(r) Aloke Nath Dutta & Ors. v. State of Bengal,
(2007) 12 SCC 230 (para 104)
56
(s) Sharat Babu Diguamarti v. NCT of Delhi, (2017)
2 SCC 18 (para 37),
(t) Philips India Ltd. v. Labour Court (1985) 3SCC
103 (paras 15 to17)
(u) Municipal Corporation of Delhi v. Girdharilal
Sapru, (1981) 2 SCC 758 (para 5)
(v) Ramgopal Ganpatrai Ruia v. State of Bombay,
1958 SCR 618 (para 15)
(w) Emperor v. N.G. Chatterji, ILR 1946 ALL
553 (paras 5 to 8, 10, 14),
(x)Krishnan v. Krishnaveni (1997) 4SCC 241 (para
8)
(y) Rajeshwar Singh v. Subrata Roy Sahara (2013)
14 SCC 257 (Para 26);
(z) Ashok Kumar Gupta v State of U.P. 1994 Supp
(1) SCC 145 (Paras 5860);
(aa) Union Carbide Corp. v. Union of India
(1991) 4 SCC 584 (Para 83) and;
(bb) On molding of relief – M. Siddiq (Dead)
Through Legal Representative (Ram
Janmabhumi Temple Case) v. Mahant Suresh
Das & Ors. (2020) 1 SCC 1 (Para 1024,
1026)
57
ANALYSIS :
EFFECT OF AN ORDER OF PRELIMINARY ASSESSMENT
45. The order of preliminary assessment decides whether the
child in conflict with law, falling in the age bracket of 1618
years and having committed heinous offence, is to be tried as
an adult by the Children’s Court or by the Board itself,
treating him to be a child. There are two major consequences
provided in the Act, 2015, if the child is tried as an adult by
the Children’s Court. First, that the sentence or the
punishment can go up to life imprisonment if the child is tried
as an adult by the Children’s Court, whereas if the child is
tried by the Board as a child, the maximum sentence that can
be awarded is 3 years. The second major consequence is that
where the child is tried as a child by the Board, then under
section 24(1), he would not suffer any disqualification attached
to the conviction of an offence, whereas the said removal of
disqualification would not be available to a child who is tried
as an adult by the Children’s Court, as per the proviso to
section 24(1). Another consequence, which may also have
serious repercussions, is that as per section 24(2), where the
Board or the Children’s Court, after the case is over, may
direct the police or the registry that relevant records of such
58
conviction may be destroyed after the period of expiry of
appeal or a reasonable period as may be prescribed. Whereas,
when a child is tried as an adult, the relevant records shall be
retained by the relevant Court, as per the proviso to section
24(2).
46. These consequences are serious in nature and have a
lasting effect for the entire life of the child. It is well settled
that any order that has serious civil consequences, reasonable
opportunity must be afforded. The question is of what would
be a reasonable opportunity in a case where a preliminary
assessment is to be made by the Board under section 15.
SOCIAL INVESTIGATION REPORT (SIR)
47. Preparation of SIR is a statutory requirement for every
child in conflict with law, which is to be prepared by the
Probation Officer or any other agency as may be directed by
the Board. Its format is also provided in Form 6 to the Model
Rules. The object of getting an SIR prepared is to obtain as
much as possible information about the background of the
child. It has as many as 48 columns to be filled up and
thereafter, the Probation Officer is to submit his opinion also.
In the present case, the SIR was submitted by the Legal
59
Probation Officer on 27.11.2017. The SIR is a relevant
material to be considered by the Board to take a decision while
passing any orders regarding bail or after inquiry or
preliminary assessment.
PSYCHOLOGIST’S REPORT
48. The report of the psychologist dated 05.12.2017 only
spells out the IQ of the child to be 95 and also that further
assessment, if required, could be made. The relevant extracts
from the aforementioned report are reproduced hereunder.
“xxx xxx xxx
For assessment of his mental capacity,
assessment was carried out .
Impression: IQ 95, average intelligence.
xxx xxx xxx
If required further assessment, he may be sent
to the Institute of Mental Health, University of
Health Sciences, Rohtak.
xxx xxx xxx”
A perusal of the above report clearly mentions that it was
49.
only for the purpose of assessing the mental capacity of the
child. The report did not mention anything about the child’s
knowledge of the consequences of committing the alleged
60
offence, nor did it mention about the circumstances leading to
the alleged offence. No such assessment was carried out as,
apparently the Board only required the opinion on the mental
capacity of the child.
NATURAL JUSTICE/REASONABLE OPPURTUNITY
50. The Board and the Children’s Court have relied upon
section 99 of the Act, 2015 to hold that they were not required
to provide the copies of the material on record available in the
form of SIR, the report of the psychologist, and other material.
On the other hand, the High Court relied upon rule 10(5) of
the Model Rules to hold that the documents ought to have
been provided to the child or his guardian or his lawyer as the
case may be, and this having not been done, it was a case
where reasonable opportunity had been denied.
51. Section 99 provides that all reports relating to the child
and considered by the Committee or the Board are to be
treated as confidential. The proviso to section 99(1) gives the
power to the Committee or the Board to communicate the
substance thereof to another Committee or Board or the child,
his parents or guardian, and may also give such Committee or
Board or the child or parent or guardian, an opportunity to
61
produce evidence as may be relevant to the matter stated in
the report. Section 99(2) states that the victim would not be
denied access to the case record, relevant documents and
papers.
Maintaining confidentiality has a different purpose but in
52.
no case can it be said that to maintain confidentiality, the
relevant material would not be provided to the child or his
guardian or parents. It would be in complete contravention of
the settled principles of criminal jurisprudence. Concept of
confidentiality used in section 99 is to prevent the reports from
coming in public domain or shared in public. Its availability
will be confined to the parties to the proceedings and the
parties should also refrain from sharing it with third parties.
Section 99(2) begins with the non obstante clause and
proceeds to direct that the victim should not be denied access
to the case report, orders and relevant papers. Once the
legislature’s intention is to provide material to the victim there
could never be an intention in the name of confidentiality to
deny such access to the records to the child or his parents or
guardians. The Board and the Children’s Court committed an
62
illegality in not providing the documents as demanded by
misinterpreting section 99 of the Act, 2015.
53. In the present case, the SIR and the report of the expert
psychologist was not provided to the respondent or his parents
or guardians. An application was filed on behalf of the
respondent for supplying such material which was denied by
the Board by a detailed order dated 13.12.2017. The Board
only extended the liberty to the counsel and the parent or the
guardian to look into these reports for 30 minutes before the
hearing commenced.
54. It has been argued on behalf of the respondent that
firstly, these documents ought to have been provided to them;
and secondly, half an hour was too little a time to go through
the contents of the voluminous SIR (running into 35 pages)
which contained several statements; and thirdly, they had no
opportunity to lead evidence in rebuttal by way of cross
examination or submitting documents.
55. Another violation of principles of natural
justice/opportunity addressed on behalf of the respondent was
on the report of the psychologist, which only provided the IQ
level of the child and nothing more. An application was also
63
filed on behalf of the respondent to lead evidence in rebuttal to
the report of the psychologist and to crossexamine the
psychologist as the tests applied by the psychologist in his
report were not the relevant tests for a child aged 16.5 years.
The tests applied were applicable to children up to the age of
15 years. This request made on behalf of the respondent was
also denied by the Board by a detailed order dated 13.12.2017.
56. Another aspect urged on behalf of the respondent was to
the effect that the report of the psychologist
suggested/recommended that the child may be got examined
further by the Institute of Mental Health, University of Health
Sciences, Rohtak. According to the learned counsel for the
respondent, the Board committed an error by not getting
further examination carried out by a superior institution. Once
the psychologist carrying out the tests had given a report and
he was himself not sure of his own report and had suggested
for assessment by a superior institution, the Board ought to
have obtained further report.
57. Yet another aspect which goes to violation of a fair
opportunity was, rejection of the application filed on behalf of
the respondent before the Board to defer the proceedings of
64
preliminary assessment till such time the compliance of rule
10(5) of the Model Rules is not made. The material collected by
the Child Welfare Police Officer in the form of statement of
witnesses and other documents during the course of
investigation which was to be made within a period of one
month, ought to have been awaited and a copy of the same
should have been provided to the respondent or his parents or
guardian as this would be relevant for preliminary assessment.
58. In view of the above, the argument of Mr. Vikramjit
Banerjee, learned counsel for CBI, on two counts needs to be
rejected. Firstly, rule 10(5) of the Model rules should be read
down as being in conflict with section 99 of the Act, 2015 and
secondly, that no material collected during investigation could
be provided to the accused till such time the police report
under section 173(2) Cr.P.C. is filed and the cognizance is
taken by the Magistrate under section 190 and the stage of
section 207/208 Cr.P.C. is reached. The Act, 2015, being a
special Act, will have an overriding effect over general
procedure prescribed under the Cr.P.C.. The provisions of the
Cr.P.C. would be applicable so long and so far as they are not
65
in conflict with the special provisions contained in the Act,
2015.
TIMELINE
59. There is a timeline provided for the inquiry, submission
of the SIR, preliminary assessment and the investigation
under the Act, 2015 and the Model Rules:
i. The inquiry by the Board under section 14(1) is to be
completed within a period of four months from the date of
first production of the child before the Board, and it
could be extended by a period of two more months by the
Board for the reasons to be recorded as per section 14(2).
ii. Section 14(3) provides that a preliminary assessment
under section 15 should be disposed of by the Board
within a period of three months from the date of first
production of the child before the Board.
iii. Under section 14(4) it is provided that if the inquiry by
the Board under section 15 for petty offences remains
inconclusive even after the extended period, the
proceedings shall stand terminated.
iv. Under the proviso to section 14(4) dealing with the
serious or heinous offences, in case the Board requires
66
further period of time for completion of inquiry, the same
may be granted by the Chief Judicial Magistrate or, as
the case may be, the Chief Metropolitan Magistrate, for
reasons to be recorded.
v. Under section 8(3)(e), SIR is to be submitted by the
Probation Officer or the Child Welfare Officer or a social
worker within a period of fifteen days from the date of
first production of the child before the Board.
vi. In rule 10(5) of the Model Rules, in case of heinous
offences committed by a child between the age of 16 to 18
years, the Child Welfare Police Officer shall produce the
statement of witnesses recorded by him and other
documents prepared during the course of investigation
within a period of one month from the date of first
production of the child before the Board.
60. The timeline given under the various provisions as
referred to above, has a rationale. The SIR to be submitted
within fifteen days would facilitate the Board in taking a
decision on the request for bail at the earliest. The period of
one month given under rule 10(5) is to facilitate the Board to
take a decision may be on a pending bail matter or for
preliminary assessment for which three months’ time is
67
provided. The completion of inquiry within four months or any
extended period is to ensure that a child is not subjected to
unnecessary long and lengthy processes of trials and inquiries
and that the matter is taken to its logical conclusion at the
earliest.
61. In the present case, despite request of the respondent to
defer the preliminary assessment till such time as the material
under rule 10(5) was provided, was rejected by the Board on
13.12.2017 and the Board proceeded to make an order of
preliminary assessment within a week thereafter on
20.12.2017. The child had been taken into custody and was
produced before the Board for the first time on 08.11.2017.
The three months’ period for preliminary assessment would
have continued till 07.02.2018. The Board could have, rather
ought to have, waited for the report and material under rule
10(5) of the Model Rules. Similarly, once the report of the
psychologist suggested that if further examination is required
then the respondent ought to have been referred to a
specialised institute in Rohtak but this suggestion was also
not accepted by the Board without cogent reason.
68
PRELIMINARY ASSESSMENT
62. The obligation of the Board in making the preliminary
assessment on the four counts mentioned in section 15 of the
Act is largely dependent upon the wisdom of the Board without
there being any guidelines as to how the Board would conduct
such preliminary assessment. In the absence of any such
framework or guidelines, the Board has to use its discretion in
taking into consideration whatever material it deems fit for
assessing the four attributes.
In the present case, the Board and the Children’s Court,
(a)
relying upon the statement given by the child at the time
of first appearance before the Board, the second
statement given by the child at a later stage, the SIR and
the report of the psychologist indicating an IQ level of 95,
have held that the respondent had the mental capacity
.
to commit the offence
(b) Insofar as the physical capacity is concerned, the Board
and the Children’s Court have taken into consideration
the built of the child and his age to hold that he had the
69
physical capacity to commit the nature of the alleged
assault.
The Board relied upon the fact that the respondent was
(c)
th
studying in class 11 ; he had stated that he is physically
and mentally fit and not suffering from any disease; his
IQ level shows that he is mentally fit and as such
it
cannot be said that he did not know the
consequences of the alleged offence to be committed
by him. From the statement of the respondent recorded
during his personal assessment, it was indicated that he
was mature enough. All these facts satisfied the Board
that the respondent was having sufficient maturity
and ability to understand the consequences of his
action.
(d) The order of the Board does not anywhere refer to its
assessment regarding the circumstances in which the
respondent allegedly committed the offence. However,
what appears is that the Board relied upon the SIR.
63. In the present case, the Board and the Children’s Court
relied heavily on the psychologist’s report which only reflected
the IQ of the respondent to be of average level bearing a score
70
of 95 to hold that the respondent had the mental capacity to
commit the offence and also ability to know the consequences
of the offence. The Board and the Children’s Court both have
also recorded that the recommendation of the psychologist to
send the respondent for further assessment to the Institute of
Mental Health, University of Health Sciences, Rohtak was not
necessary as, according to them, the IQ findings were
sufficient for them to arrive at the preliminary assessment.
64. Section 15 and rule 10A provide that the Board may take
the assistance of psychologists, psychosocial workers, or
other experts who had experience of working with children in
difficult circumstances. According to the learned counsel for
the appellants, the word ‘may’ should be read as ‘may’ only
i.e., the Board in its discretion may or may not take the
assistance of such experts whereas on behalf of the
respondent, it has been strenuously contended that the word
‘may’ should be read as ‘shall’ and it should be mandatory for
the Board to take opinion or assistance from such experts
before passing an order of preliminary assessment. This
aspect is dealt with at a later stage.
71
65. While considering a child as an adult one needs to look at
his/her physical maturity, cognitive abilities, social and
emotional competencies. It must be mentioned here that from
a neurobiological perspective, the development of cognitive,
behavioural attributes like the ability to delay gratification,
decision making, risk taking, impulsivity, judgement, etc.
continues until the early 20s. It is, therefore, all the more
important that such assessment is made to distinguish such
attributes between a child and an adult.
Cognitive maturation is highly dependent on hereditary
66.
factors. Emotional development is less likely to affect cognitive
maturation. However, if emotions are too intense and the child
is unable to regulate emotions effectively, then intellectual
insight/knowledge may take a back seat.
67. We are in agreement with the reasoning given by the High
Court that further assessment ought to have been carried out
once the psychologist had recommended so and had also
suggested the name of the institute. The Board and the
Children’s Court apparently were of the view that the mental
capacity and the ability to understand the consequences of the
offence were one and the same, that is to say that if the child
72
had the mental capacity to commit the offence, then he
automatically had the capacity to understand the
consequences of the offence. This, in our considered opinion,
is a grave error committed by them.
The language used in section 15 is “the ability to
68.
understand the consequences of the offence”. The expression
used is in plurality i.e., “consequences” of the offence and,
therefore, would not just be confined to the immediate
consequence of the offence or that the occurrence of the
offence would only have its consequence upon the victim but it
would also take within its ambit the consequences which may
fall upon not only the victim as a result of the assault, but also
on the family of the victim, on the child, his family, and that
too not only immediate consequences but also the farreaching
consequences in future. Consequences could be in
material/physical form but also affecting the mind and the
psychology of the child for all times to come. The
consequences of the offence could be numerous and manifold
which cannot be just linked to a framework; and, for this
purpose, the overall picture as also future consequences with
73
reference to the facts of the case are required to be consciously
analysed by the Board.
69. Consequences for the victim could be his death, or
permanent physical disability, or an injury which could be
repaired or recovered; the impact of the offence on the mind of
the victim may be prolonged and continue for his lifetime; the
impact on the family and friends of the victim, both mental
and financial; consequence on the child going into
incarceration; mental impact on the child, it could be
repentance or remorse for life, the social stigma cast on the
child and his family members; the consequences of litigating
and so many other things which would be difficult to
adumbrate.
70. A child with average intelligence/IQ will have the
intellectual knowledge of the consequences of his actions. But
whether or not he is able to control himself or his actions will
depend on his level of emotional competence. For example,
risky driving may result in an accident. But if emotional
competence is not high, the urge for thrill seeking may get the
better of his intellectual understanding.
74
71. Children may be geared towards more instant
gratification and may not be able to deeply understand the
longterm consequences of their actions. They are also more
likely to be influenced by emotion rather than reason.
Research shows that young people do know risks to
themselves. Despite this knowledge, adolescents engage in
riskier behaviour than adults (such as drug and alcohol use,
unsafe sexual activity, dangerous driving and/or delinquent
behaviour). While they do consider risks cognitively (by
weighing up the potential risks and rewards of a particular
act), their decisions / actions may be more heavily influenced
by social (e.g. peer influences) and/or emotional (e.g.
impulsive) tendencies. In addition, the lack of experience
coupled with the child’s limited ability to deeply understand
the longterm consequences of their actions can lead to
impulsive / reckless decision making.
72. Coming to the last count, i.e., the assessment regarding
the circumstances in which the offence is alleged to be
committed is again an attribute which could have many
factors to be considered before such an assessment could be
made. There could be a number of reasons for a person to
75
commit a crime. It could be enmity, it could be poverty, it
could be greed, it could be perversity in mind and many
others. There could be coercion. There could be threat to one’s
life and property. There could be allurement in terms of the
material and physical gains. Crime could be committed on
account of stress or depression also. It could be on account of
the company that one keeps. One could commit crime in
order to help his family and friends. All these and many more
could be termed as circumstances leading to the commission
of crime.
The preliminary assessment has been a question of
73.
debates, analysis and research. The National Law University,
Orissa, in collaboration with UNICEF, made a detailed study
on the practice of preliminary assessment under the Act,
2015. To the said report is annexed as Annexure 4, the
Guidance Notes on Preliminary Assessment Reports for
Children in Conflict in Law developed by the Department of
9
Child and Adolescent Psychiatry, NIMHANS , Bengaluru. It
would be worthwhile to mention here that NIMHANS,
Bengaluru is one of the premier institutions involved in the
9 National Institute of Mental Health and Neurosciences.
76
research and study of psychology, and is a worldrenowned
centre for mental health, neurosciences and allied fields. The
contents of the Guidance Notes referred to above are
reproduced below
“
Guidance Notes on
Preliminary Assessment Report for Children in Conflict
with Law
Department of Child & Adolescent Psychiatry, NIMHANS,
Bengaluru
The preliminary assessment uses information from the detailed
psychosocial and mental health assessment (that is done first)
and presents that information as outlined below.
A. Mental & Physical Capacity to Commit Alleged Offence
The child’s ability to make social decisions and judgments
are compromised due to:
(i) Life skills deficits (emotional dysregulation/ difficulty
coping with peer pressure/ assertiveness & negotiation
skills /problemsolving/ conflictresolution/ decision
making).
(ii) Neglect / poor supervision by family/poor family role
models
(iii) Experiences of abuse and trauma
(iv) Substance abuse problems
(v) Intellectual disability
(vi) Mental health disorder/ developmental disability
(vii) Treatment/ interventions provided so far
Guidance Notes
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For this section, the professional filling out the
preliminary assessment form is simply required to mark
off against each item (a tick mark to indicate ‘yes’ and an
X mark to indicate ‘no’) whether or not the child is
compromised in this particular area. The information is
drawn from relevant sections of the detailed psychosocial
and mental health proforma, which contain information
on: how a child’s abilities to make appropriate social
decisions and judgements (which translate into actions
and behaviours) have been affected by the child’s life
circumstances and mental health or developmental
problems.
For item (i) on life skills deficits, refer to Section 6, ‘Life
Skills Deficits and Other Observations of the Child’ and
subsection 6.1. on ‘Life Skills Deficits’.
For item (ii), refer to Section 2, subsection 2.1. on ‘Family
Issues Identified’. For item (iii) on experiences of abuse
and trauma, refer to Section 3, ‘Trauma Experiences:
Physical, Sexual and Emotional Abuse Experiences’.
For items (iv) and (vi) on substance abuse problems and
mental health disorders/ developmental disability, refer
to Section 5, ‘Mental Health Concerns’.
For item (v) on intellectual disability, you may rely on
your judgement based on your interaction with the child
during the entire process of administering the
psychosocial and mental health proforma—if the child
was unable to respond to most questions or responded 2
in an ageappropriate manner (like a younger child
would, demonstrating little understanding of many things
asked or discussed), then you may suspect that he/she
has intellectual disability. (Following this, it would be
useful and necessary to confirm this through relevant IQ
testing conducted by psychologists located in mental
health facilities).
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For item (vii), you may have enquired from the child,
during the assessment, about whether he/she has
received any professional assistance or treatment for any
mental health issues/ family problems or life skills
deficits that he/she has. (Generally, children in the
Observation Home have never received any treatment or
interventions for their problems).
In actual fact, everyone, except someone with serious
physical disability (the type that severely impacts
locomotor skills) or with intellectual disability, has the
mental and physical capacity to commit offence. So, to
ask whether a given child has the mental and physical
capacity to commit offence, in simplistic terms, is likely to
elicit the answer ‘yes’ in most cases. And just because
someone has the physical and mental capacity to commit
an offence, does not mean that they will or that they
have. Therefore, a dichotomous response as elicited by
this question posed by the JJ Act is of little use in making
decisions regarding child who has come into conflict with
the law. Thus, in response to the problems resulting from
a simplistic dichotomous response to the physicalmental
capacity question, we have adopted a more detailed,
descriptive and nuanced interpretation.
As per the preliminary assessment report we have
developed, mental and physical capacity to commit
offence is the ability of a child to make social decisions
and judgments, based on certain limitations that the child
may have. In other words, a child’s abilities to make
social decisions and judgments are compromised due to
life skills deficits, neglect / poor supervision by
family/poor family role models, experiences of abuse and
trauma, substance abuse problems, intellectual
disability, and/or mental health disorder/ developmental
disability. Such issues (if untreated) adversely impact
children’s world view, and their interactions with their
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physical and social environment, thereby placing them at
risk of engaging in antisocial activities.
B. Circumstances of Alleged Offence
(i) Family history and relationships (child’s living
arrangements, parental relationships, child’s emotional
relationship & attachment to parents, illness & alcoholism in
the family, domestic violence and marital discord if any).
(ii) School and education (child’s school attendance, Last
grade attended, reasons for child not attending school
whether it is due to financial issues or lack of motivation,
school refusal, corporal punishment).
(iii) Work experience/ Child labour (why the child had to
work/ how child found the place of work, where he was
working / hours of work and amount of remuneration
received, was there any physical/emotional abuse by the
employer and also regarding negative influence the child
may have encountered in the workplace regarding substance
abuse etc).
(iv) Peer relationships (adverse peer influence in the context
of substance use/ rulebreaking/inappropriate sexual
behaviour/school attendance)
(iv) Experiences of trauma and abuse (physical, sexual &
emotional Abuse experiences) 3 (vi) Mental health disorders
and developmental disabilities: (Mental health disorders and
developmental disabilities that the child may have).
Guidance Notes
All of the above information for this section is to be
documented as it is in the detailed psychosocial and mental
health assessment, drawing on relevant sections from the
detailed assessment, so as to present the factors and
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circumstances that made the child vulnerable to committing
offence.
Information for the first four heads needs to be drawn from
Section 2, Social History, of the psychosocial and mental
health proforma—which contains details on family, school,
institution and peer issues; Information for the fifth item on
trauma, needs to be drawn from Section 3, Trauma
Experiences: Physical, Sexual, and Emotional Abuse
Experiences’ of the psychosocial assessment form;
For the sixth item on Mental Health Disorders, Section 5,
‘Mental Health Concerns’ (including substance abuse) from
the psychosocial assessment form, would need to be used.
It is important to recognize that ‘Circumstances of the
Offence’ does NOT refer to proximal factors i.e. what
happened right before the offence incident took place. This is
because proximal factors have a history which is important
to recognize—there is a whole set of factors and life events
that led up to the decisions and actions to just before the
offence as well as the offence itself. Therefore,
‘circumstances’ are interpreted as life circumstances and a
longitudinal approach is taken to understanding
vulnerabilities and pathways to offences. This entails events
and circumstances starting from the child’s birth (or starting
with the mother’s pregnancy experiences) to the current
date. This is the universal approach to historytaking in child
and adolescent mental health, to be able to understand
children’s emotions and behaviours based on their contexts
and experiences, as they have played out over several years
(and so it is not actually specific to children in conflict with
the law).
C. Child’s Knowledge of Consequences of Committing
the Alleged Offence
(A brief about the child’s understanding of social/
interpersonal and legal consequences of committing offence
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along with the child’s insights regarding committing such an
offence).
Guidance Notes
This is based on the ‘Potential for Transformation’ section in
the detailed psychosocial and mental health assessment, as
well as the first level interventions provided immediately
after. How the child responded during the assessment i.e.
extent of his/her insight and motivation, must be
documented here.
Social and interpersonal consequences refer to the child’s
sense of empathy and understanding of how his/her actions
would (negatively) impact his/her relationship with family,
friends and others; legal consequences refer to the child’s
understanding of his/her actions as being a boundary
violation/ breaking of rules with serious negative
consequences for himself/herself, including punishment and
coming into conflict with the law.
D. Other Observations & Issues
Guidance Notes
Any other observation made during the assessment
regarding the child’s social temperament/ child’s behaviour
in the observation home/ level of motivation for change/ if
any positive behaviour noted is also provided. This may be
drawn from Section 6 of the psychosocial and mental health
proforma, on ‘Life Skills Deficits and Other Observations of
the Child’, subsection 6.2 ‘Other Observations of the Child’.
These refer not just to negative observations but also to
positive ones you might have made during the assessment.
Observations may thus include the child’s demeanour, or
any views or ideologies that the child may have expressed
regarding problem behaviours such as violence or abuse—
which may better help understand who he/she is (and help
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the magistrate view the offence behaviour from varied
perspectives). They may also include any odd behaviours
that you observe which might help substantiate the evidence
on mental health disorders and developmental disabilities—
for instance, if the child’s responses appear socially and
cognitively inappropriate to his age, you may note possible
intellectual disability; or if a child appears disoriented in
terms of place and time or has marks of selfharm on his
body, then you might note mental health issues.
E. Recommendations
Guidance Notes
Finally, the report makes recommendations for treatment
and rehabilitation interventions for the child, based on the
interests and desires of the child. These could pertain to
placement, living arrangements, education and schooling,
counselling for parents, referral to a tertiary facility for
further mental health and psychosocial care and treatment.
This subsection is critical as it provides the JJB magistrate
with clear direction on what assistance the child requires,
thus creating an imperative for the board to consider options
and respond in ways that are supportive and proactive
(versus making decisions of transfer to the adult justice
system).
JJB magistrates may be requested to refer the child to a
psychiatric facility for treatment, so that other issues
pertaining to family and school can also be taken care of by
the mental health system, which is then obligated to report
to the JJB on the child’s progress. In many instances, JJB
magistrates have issued a conditional bail to ensure that the
child and family follow through with mental health services
as required i.e. bail is given to the child on condition that
he/she presents at the mental health facility and complies
with treatment (if the child refuses to do so, the magistrate
can revoke the bail). Thus, there are adequate provisions
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under the JJ Act, which if effectively invoked, can be used to
protect CICL from transfer to adult systems, and to facilitate
their rehabilitation instead.
PROVISO TO SECTION 15(1) DIRECTORY OR MANDATORY:
The world acknowledges that children in conflict with law
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should be treated differently than adults in conflict with law.
The reason is that the mind of the child has not attained
maturity and it is still developing. Therefore, the child should
be tested on different parameters and should be given an
opportunity of being brought into the main stream if, during
his juvenility, has acted in conflict with law. To understand
psychology of the child, huge rounds of studies have been
made not only recently but from age old times and child
psychology is a subject which is being studied world over and
there are institutes specifically dealing with the developments
and research on the said subject. The enactments dealing
with children are enacted world over.
75. It is to be noted that child psychology is a specialised
branch of development psychology, its genesis is based on the
premise that children and adults have a different thought
process. The individualised assessment of adolescent mental
capacity and ability to understand the consequences of the
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offence is one of the most crucial determinants of the
preliminary assessment mandated by section 15 of the Act,
2015. The report of the preliminary assessment decides the
germane question of transferring the case of a child between
16 to 18 years of age to the Children’s Court. This evaluation
of ‘mental capacity and ability to understand the
consequences’ of the child in conflict with law can, in no way,
be relegated to the status of a perfunctory and a routine task.
The process of taking a decision on which the fate of the child
in conflict with law precariously rests, should not be taken
without conducting a meticulous psychological evaluation.
76. As already noticed, the Board consists of three members,
one is a Judicial Officer First Class and two social workers,
one being a woman. The social worker appointed as a member
could be having a degree in child psychology or psychiatry but
it is not necessary. As such, the constitution of the Board may
not necessarily be having an expert child psychologist. It is for
all the above reasons that it has been provided not only in
sections 15 and 101(2) but also under the Model Rules that
assistance may be taken from an expert psychologist. Having
regard to the framework of the Act, 2015 and the Model Rules
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and the purpose of preliminary assessment in terms of Section
15 as also looking to the varied composition of the Board, we
are of the view that where the Board is not comprising of a
practicing professional with a degree in child psychology or
child psychiatry, the expression “may” in the proviso to section
15(1) would operate in mandatory form and the Board would
be obliged to take assistance of experienced psychologists or
psychosocial workers or other experts. However, in case the
Board comprises of at least one such member, who has been a
practicing professional with a degree in child psychology or
child psychiatry, the Board may take such assistance as may
be considered proper by it; and in case the Board chooses not
to take such assistance, it would be required of the Board to
state specific reasons therefor.
77. It is a well settled principle of interpretation that the word
‘may’ when used in a legislation by itself does not connote a
directory meaning. If in a particular case, in the interests of
equity and justice it appears to the court that the intent of the
legislature is to convey a statutory duty, then the use of the
word “may” will not prevent the Court from giving it a
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| mandatory colour. This Court in | | Bachahan Devi v. Nagar |
|---|
| “ | 18. | | It is well settled that the use of the word “may” in | | |
|---|
| a statutory provision would not by itself show that the | | | | | |
| provision is directory in nature. In some cases, the | | | | | |
| legislature may use the word “may” as a matter of pure | | | | | |
| conventional courtesy and yet intend a mandatory force. | | | | | |
| In order, therefore, to interpret the legal import of the | | | | | |
| word “may”, the court has to consider various factors, | | | | | |
| namely, the object and the scheme of the Act, the | | | | | |
| context and the background against which the words | | | | | |
| have been used, the purpose and the advantages | | | | | |
| sought to be achieved by the use of this word, and the | | | | | |
| like. It is equally well settled that where the word “may” | | | | | |
| involves a discretion coupled with an obligation or | | | | | |
| where it confers a positive benefit to a general class of | | | | | |
| subjects in a utility Act, or where the court advances a | | | | | |
| remedy and suppresses the mischief, or where giving | | | | | |
| the words directory significance would defeat the very | | | | | |
| object of the Act, the word “may” should be interpreted | | | | | |
| to convey a mandatory force. As a general rule, the | | | | | |
| word “may” is permissive and operative to confer | | | | | |
| discretion and especially so, where it is used in | | | | | |
| juxtaposition to the word “shall”, which ordinarily is | | | | | |
| imperative as it imposes a duty. Cases, however, are | | | | | |
| not wanting where the words “may”, “shall” and “must” | | | | | |
| are used interchangeably. In order to find out whether | | | | | |
| these words are being used in a directory or in a | | | | | |
| mandatory sense, the intent of the legislature should be | | | | | |
| looked into along with the pertinent circumstances | | | | .” | |
| Similarly, this Court in | | Dhampur Sugar Mills Ltd. v. |
|---|
| 10<br>11 | (2008) 12 SCC 372 | | | |
|---|
| (2007) 8 SCC 338 | | | |
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| “36. ….In our judgment, mere use of word “may” or<br>“shall” is not conclusive. The question whether a<br>particular provision of a statute is directory or<br>mandatory cannot be resolved by laying down any<br>general rule of universal application. Such controversy<br>has to be decided by ascertaining the intention of the<br>legislature and not by looking at the language in which<br>the provision is clothed. And for finding out the<br>legislative intent, the court must examine the scheme of<br>the Act, purpose and object underlying the provision,<br>consequences likely to ensue or inconvenience likely to<br>result if the provision is read one way or the other and<br>many more considerations relevant to the issue.” | |
|---|
| | |
79. Therefore, looking to the purpose of the Act, 2015 and its
legislative intent, particularly to ensure the protection of best
interest of the child, the expression “may” in the proviso to
Section 15(1) thereof and the requirement of taking assistance
of experienced psychologists or psychosocial workers or other
experts would operate as mandatory unless the Board itself
comprises of at least one member who is a practicing
professional with a degree in child psychology or child
psychiatry. Moreover, in case the Board, in view of its own
composition with at least one member, who is a practicing
professional with a degree in child psychology or child
psychiatry, chooses not to take such assistance, it would
record specific reasons therefor.
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Before we close, it would be pertinent to mention that the
80.
case laws relied upon by the learned counsel for the parties do
not require deliberation in view of the findings recorded by us
on various issues.
CONCLUSION
81. We are conscious of the fact that the power to make the
preliminary assessment is vested in the Board and also the
Children’s Court under sections 15 and 19 respectively. The
Children’s Court, on its own, upon a matter being referred to
under section 18(3), would still examine whether the child is to
be tried as an adult or not, and if it would come to the
conclusion that the child was not to be tried as an adult then
it would itself conduct an inquiry as a Board and pass
appropriate orders under section 18. Thus, the power to carry
out the preliminary assessment rests with the Board and the
Children’s Court. This Court cannot delve upon the exercise of
preliminary assessment. This Court will only examine as to
whether the preliminary assessment has been carried out as
required under law or not. Even the High Court, exercising
revisionary power under section 102, would test the decision
of the Board or the Children’s Court with respect to its legality
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or propriety only. In the present case, the High Court has,
after considering limited material on record, arrived at a
conclusion that the matter required reconsideration and for
which, it has remanded the matter to the Board with further
directions to take additional evidence and also to afford
adequate opportunity to the child before taking a fresh
decision.
82. In arriving at the conclusion, the High Court firstly held
that there was denial of adequate opportunity to the
respondent. The list of documents, copies of the documents,
copies of the statement, the SIR not being provided to the
respondent, was in clear violation of rule 10(5) of the Model
Rules.
83. Despite specific request for crossexamining the experts
who had given the report, the same was not provided to the
respondent. The tests conducted by the expert psychologists
were not applicable or could not have been applied to a child
above the age of 15 years. It could have been applied only for
children below the age of up to 15 years in one test and up to
11.5 years in the other test. The psychologist had suggested
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for further assessment by a superior facility, which was not
accepted by the Board without cogent reason.
84. The mental age as per the applicable formula based on
the IQ of the child would be less than 16 years. The Board,
provided only 30 minutes time to the child, his lawyer, his
father and also to the counsel for CBI to peruse the 35 pages
of the report, which was too little to peruse and comprehend
and give any evidence in rebuttal. The CBI counsel had
admitted that it did not have officers or the required
infrastructure to conduct the investigation under the Act,
2015. For all the above reasons, the High Court remitted the
matter to the Board after setting aside both the orders of the
Board and the Children’s Court to consider afresh and assess
the intelligence, maturity, physical fitness and as to how the
child in conflict with law was in a position to know the
consequences of the offence. The exercise was to be
undertaken within a period of six weeks. The High Court
further directed that while conducting the preliminary
assessment afresh, opinion of the psychologist of the
Government Hospital (Institute of Mental Health, University of
Health Sciences, Rohtak) be obtained. This Court may not
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agree with the reasoning given by the High Court on all counts
and also the direction given for conducting further tests.
However, we have no hesitation in agreeing with the ultimate
result of the High Court in remanding the matter for a fresh
consideration after rectifying the errors on lack of adequate
opportunity.
85. The High court taking into consideration all these aspects
set aside the order of the Board, and remanded the matter and
also directed for getting further examination of the child, and
this exercise was to be undertaken within 6 weeks. Today,
after 3½ years, we are not in a position to give an opinion as to
whether any further test can be carried out at this stage as the
age of the child is now more than 21 years. However, we leave
it to the discretion of the Board or the psychologist who may
be consulted as to whether any fresh examination would be of
any relevance/assistance or not. We have already referred to
in detail the kind of analysis or assessment required to be
made under section 15. The Act, 2015 or the Model Rules do
not lay down any guidelines or framework to facilitate the
Board in making a proper preliminary assessment on the
relevant aspects. The only liberty given to the Board is to
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obtain assistance of an experienced psychologist or a psycho
social worker or other expert. In the present case, the only
assistance taken is to get the mental IQ of the child. Beyond
that, regarding the ability to understand the consequences
and also the circumstances in which the alleged offence was
committed, no report was called for from any psychologist.
86. In view of the above, both the appeals are dismissed.
87. Before concluding, we may indicate that the task of
preliminary assessment under section 15 of the Act, 2015 is a
delicate task with requirement of expertise and has its own
implications as regards trial of the case. In this view of the
matter, it appears expedient that appropriate and specific
guidelines in this regard are put in place. Without much
elaboration, we leave it open for the Central Government and
the National Commission for Protection of Child Rights and the
State Commission for Protection of Child Rights to consider
issuing guidelines or directions in this regard which may
assist and facilitate the Board in making the preliminary
assessment under section 15 of the Act, 2015.
We also make it clear that any observations made in our
88.
order which may be touching the merits of the case was only
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for the purpose of deciding these appeals and the same would
in no way influence the Board or the Children’s Court or the
High Court. They may proceed to decide the matters
objectively on merits in accordance with law.
………..........................J.
[ DINESH MAHESHWARI]
………….........................J.
[VIKRAM NATH]
NEW DELHI
JULY 13, 2022.
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