X vs State Of U.P. And Another
2023 Latest Caselaw 21893 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:166218                                                                                                                                                                                                                                     
 
Reserved on 3.5.2023
 
Delivered on 16.8.2023
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 

 

 
X	 				                              			 ...Revisionist
 
v/s
 
State of U.P. And Another                                                    ...Opposite Parties
 

 
JUDGMENT

HON'BLE SANJAY KUMAR PACHORI, J.

1. Heard Sri Pradeep Kumar Rai, learned counsel for the revisionist, Sri Arpit Malviya, Advocate holding brief of Shri Awadhesh Kumar Malviya, learned counsel for the opposite party no. 2, Sri Karunakar Singh, learned A.G.A. for the State and perused the material available on record.

2. The Present Criminal Revision has been preferred by the revisionist under Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "JJ Act, 2015") against the judgment dated 7.9.2021 passed by Special Judge, POCSO Act, Court No. 1, Ghazipur in Criminal Appeal No. 31 of 2021, whereby the appellate court has rejected the Criminal appeal and affirmed the order dated 26.2.2021 passed by Juvenile Justice Board, Ghazipur, whereby the Juvenile Justice Board, sent the case of the Juvenile to Children's Court for trial.

3. Learned counsel for the revisionist has assailed the judgment and order dated 26.2.2021 passed by the Juvenile Justice Board and submits that the psychological test of the revisionist was held on 9.8.2018, which was conducted by Dr. M.C. Joshi, whereby the I.Q. level of the revisionist was determined 37.5, which is much below from the normal. On 25.2.2021, the revisionist was present before the Juvenile Justice Board where the Juvenile Justice Board has asked some questions for assessing the revisionist understanding. After obtaining the psychological test report, on 25.2.2021 a test for understanding the nature of occurrence by the Juvenile Justice Board is highly illegal and against the provision of the Act.

4. It is further submitted that the Juvenile Justice Board without recording any reason as per provision of Rule 10A (4) of the Juvenile Justice Rules, 2016, impugned order has been passed. As per I.Q. level of the revisionist, which was found in a test report, his mental age would be as around 7 years as per the formula given by Stern and Kuhlmann in the year 1912.

5. It is further submitted that the preliminary assessment having been made after more than 3 years and 3 months from the date of production of the revisionist is in contravention of Section 14(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

6. It is further submitted that the first information report of the present case was lodged on 24.11.2017. The impugned order has been passed by the Juvenile Justice Board after three years and three months of apprehending of the revisionist before the Juvenile Justice Board without extending the period of inquiry. The impugned orders are liable to the set aside. Learned counsel for the revisionist relied upon the judgment of the Apex Court in case of Barun Chandra Thakur Vs. Master Bholu and Another 2022 SCC OnLine SC 870 and Shilpa Mittal Vs. State (NCT of Delhi) and Another (2020) 2 Supreme Court Cases 787.

7. Per contra; learned A.G.A. for the State as well as learned counsel for the opposite party no. 2 have defended the impugned judgment and order passed by the Appellate Court and contended that the revisionist has committed a heinous crime. Considering the gravity of the offence, the present criminal revision is liable to be dismissed.

8. I have carefully considered the submissions made by the learned counsel for the revisionist, learned counsel for the opposite party no. 2 and learned A.G.A. for the State and perused the material on record.

9. The first information report dated 24.11.2017 was lodged by father of the deceased against the revisionist and two other named persons stating that his daughter, aged about 15 years, along with her sister Neha Kumari and other persons namely, Manisha Kumari, Amisha Kumari, Rahul Kumar were coming back to her home from Girls Inter College, Dildarnagar. At about 3.45 p.m. when she reached near the semi-finished house of Late Rajendra Rawat, the revisionist along with Ajay Rawat and Amit Rawat ambushed his daughter and by caching hold her, the accused persons brought her into the house where the revisionist, who took knife in his hand, gave numerous assault to his daughter and other co-accused persons hold her. His daughter has died on the spot.

10. Before dealing with the submissions advanced by the parties, it would be appropriate to refer to the relevant provisions of the JJ Act, 2015. Sections 14, 15 & 18(3) of the JJ Act, 2015 are reproduced herein-below:-

"14(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 Section 17 and 18 of this Act.

14(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 months by the Board, having regard to the circumstances of the case and after recording the reasons in writing for such extension.

15. Preliminary Assessment into heinous offences by Board-(1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-Section (3) of Section 18:

Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

Explanation- For the purposes of this Section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.

(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974);

Provided that the order of the Board to dispose of the matter shall be [appealable] under sub-section (2) of Section 101.

Provided further that the assessment under this Section shall be completed within the period specified in Section 14.

18(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."

11. The Apex Court in Barun Chandra Thakur Vs. Master Bholu and Another 2022 SCC OnLine SC 870 after dealing the scope of preliminary assessment of the Juvenile with regard to physical and mental capacity to commit the alleged offence, it has been observed in paragraph nos. 68, 70, 71, 72 & 73 as under:

"68. The language used in section 15 is "the ability to 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 far-reaching 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 reference to the facts of the case are required to be consciously analysed by the Board.

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.

71. Children may be geared towards more instant gratification and may not be able to deeply understand the long-term 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 long­-term 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 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.

73. The preliminary assessment has been a question of 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 Child and Adolescent Psychiatry, NIMHANS, 9[National Institute of Mental Health and Neurosciences], Bengaluru. It would be worth while to mention here that NIMHANS, Bengaluru is one of the preimire institutions involved in the 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 

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 sub-Section 6.1. on 'Life Skills Deficits'. For item (ii), refer to Section 2, sub- Section 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 age­-appropriate 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).

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 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/ rule-breaking/ 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 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 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', sub-section 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 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 self­ harm 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 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.

12. The Apex Court in Barun Chandra Thakur (supra) case further observed that proviso to Section 15(1) is mandatory and observed in paragraph nos. 79 and 85 which are reproduced herein below:

"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."

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 obtain assistance of an experienced psychologist or a psychosocial 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.

13. The main thrust of the argument is that 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, was not done in accordance with law and within stipulated period.

14. The main thrust of the argument is that the preliminary assessment with regard to mental and physical capacity of juvenile to commit such offence, availability to understand the consequences of the offence and the circumstances under which he allegedly committed the offence was not done in accordance with law and within the stipulated period. Learned counsel for both the parties have admitted that the impugned order dated 26.2.2021 passed by the Juvenile Justice Board after about 3 years and 3 months of apprehending of the revisionist without extending the period is provided for preliminary assessment. Learned counsel for both the parties have not disputed the following facts.

(a) The incident took place on 24.11.2017 at about 3.45 P.M. and the juvenile was apprehended on the same day;

(b) The psychological test of the revisionist was held on 9.8.2018 after about 10 months of apprehending of the juvenile whereby the I.Q. level of the juvenile was determined 37.5.;

(c) On 25.2.2021 Juvenile Justice Board asked some questions for assessing the understanding of the revisionist. The impugned order has been passed on 26.2.2021.

15. The impugned order dated 26.2.2021 has been passed by the Juvenile Justice Board, Ghazipur after about 3 years and 3 months of apprehending of the revisionist against the mandate of Section 14(2) of Juvenile Justice (Care and Protection of Children) Act, 2015.

16. In view of the above facts and circumstances, the present criminal revision is allowed and the judgment and order dated 7.9.2021 passed by the appellate court as well as the order dated 26.2.2021 passed by Juvenile Justice Board, Ghazipur are set-aside and the matter is remanded back to the Juvenile Justice Board to decide the matter as fresh as per law laid down in the case of Barun Chandra Thakur (supra).

17. Lower court record be transmitted to the trial court immediately.

(Sanjay Kumar Pachori, J.)

Dated: 16.8.2023

T. Sinha