Mithilesh Yadav vs State Of U.P. And Another
2023 Latest Caselaw 26917 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:190579
 
Court No. - 80
 

 
Case :- CRIMINAL REVISION No. - 4929 of 2022
 

 
Revisionist :- Mithilesh Yadav
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Shashi Dhar Goswami,Pradeep Kumar Rai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Subhash Chandra Sharma,J.

1. Heard learned counsel for revisionist as well as learned A.G.A. and perused the record.

3. The present criminal revision has been preferred by the revisionist under Section 102 of the Juvenile Justice (Care and Protection) Act-2015 (hereinafter referred to as "J.J. Act, 2015) to allow the present revision and set aside the judgment and order dated 9.6.2022 passed by learned Special Judge (POCSO Act), Court No. 1, Ghazipur in Criminal Appeal No. 12 of 2022 as well as the order dated 27.10.2021 passed by Juvenile Justice Board, Ghazipur under Section 18(3) of Act in case crime No. 206 of 2020 under Sections 302 I.P.C. and Section 3/25 Arms Act, Police Station Kasimabad, District Ghazipur. Against which this criminal revision has been preferred before this Court.

3. It is submitted by the learned counsel for the revisionist that as per provisions contained under Sections 15 and 18 of the aforesaid Act, preliminary assessment of the child is to be made 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, then an order under Section 18(3) of the Act is to be passed. For making preliminary assessment assistance of experienced psychologists or psycho-social workers or other experts is to be taken by the Board. While making such assessment learned Board sought opinion of psychologist which was provided by him on 1.2.2021 after making psychological assessment of the child in which I.Q. level was found to be 62 which was below the normal. It was also mentioned in the report that on the basis of psychological assessment the ability to understand the consequences of the offence was not established. The learned Board while passing the order dated 27.10.2021 mentioned this fact in the order but did not record any finding as to why he did not accept the opinion tendered by the psychologist as aforesaid but acted on its own opinion based on the assessment made by the Board on the basis of question and answer. No any finding was recorded as to whether the report provided by the psychologist was not likely to be accepted. In this way, the order passed by the learned Board cannot be said to be in conformity with the law as provided under Section 15 of the Act. Even the learned appellate court also did not consider this point of law and material on record but dismissed the appeal which cannot be said to be lawful, therefore, request to set aside the orders passed by the learned Board as well as learned appellate Court and allow this criminal revision.

4. Learned A.G.A. opposed the aforesaid prayer and contended that the Board is not bound with the opinion tendered by the psychologist but it is to act on its own assessment. Only assistance can be obtained with the psychologists or psycho-social workers or other experts. The learned Board made its own assessment on the basis of question and answer and found that the age of the child was such as to make him capable to understand the consequences of the act that was the reason order was passed under Section 18(3) of the Act. In this way, there is no illegality or impropriety in the order passed by the learned J.J. Board and appellate court also considered all these facts and dismissed the appeal. There being no any illegality or impropriety in the orders as aforesaid, it requires no interference at all but this revision is liable to be dismissed.

5. Section 15 of the Act provides that:

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:

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.

6. Section 18 of the Act provides that:

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, [or a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under section 15, disposed of the matter] 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 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 well-being 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;

(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 sub-section (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 de-addiction 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.

7. From the language used under Section 15 (1) of the Act it is evident that while making preliminary assessment, the learned Board may take assistance of experienced psychologists or psycho-social workers or other experts regarding 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.

8. Opinion from the psychologist as sought by the learned Board, shows that the psychologist determined the I.Q. level of the child on the basis of principles as laid down by Dr. M. C. Joshi and found the I.Q. level 62 which was below the normal. It was also opined that the intellectual level was below the normal and also the ability to understand the consequences of the crime was also not established.

8. Perusal of order passed by learned Board dated 27.10.2021 also shows that the facts mentioned in the report of psychologist were stated in the order but no any such finding was recorded by it as to why he did not agree with the finding given by the psychologist about the aforesaid capability of the child. No any such finding was also recorded as to why he discarded the opinion of the psychologist and made its separate assessment on the basis of question and answer in which he found the child to be mentally and physicaly capable in committing such offence and also the ability to understand the consequences of the crime. The circumstances in which he allegedly committed the offence were also not taken into consideration. The learned appellate court also did not consider all these fact and relevant law as contained under Sections 15 and 18 of the Act. In this way, the orders passed by the learned Board as well as learned appellate court cannot be said to be in conformity with law and these orders require interference by this Court. As a result the orders passed by the learned Board dated 27.10.2021 as well as learned appellate court dated 9.6.2022 are hereby set aside and this criminal revision is allowed with direction to the learned Board to decide the matter afresh in accordance with law.

Order Date :- 4.10.2023

A. Singh