X vs State Of U.P. And Another
2023 Latest Caselaw 24581 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:177670                                                                                                                                                                                                                                      
 
Reserved on 10.5.2023
 
Delivered on 12.9.2023
 

 
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 Harshit Pathak, learned counsel for the revisionist, Sri Pawan Singh Pundir, learned counsel for the opposite party no. 2, Sri Ghanshyam Kesarwani, 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 26.10.2021 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No. 13, Saharanpur in Criminal Appeal No. 26 of 2021, whereby the appellate court has rejected the Criminal appeal and affirmed the order dated 10.1.2020 passed by Juvenile Justice Board, Saharanpur, whereby the Juvenile Justice Board has 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 10.1.2020 passed by the Juvenile Justice Board, Saharanpur on the sole ground that the order dated 10.1.2020 has been passed after two and half years of apprehending of the revisionist before the Juvenile Justice Board on the basis of a report dated 13.12.2019 and sent the matter to children court without any basis of preliminary assessment with regard to his mental and physical capacity to commit such offence and the Juvenile Justice Board has not taken any assistance of experienced psychologists or psycho­social workers or other experts and without following the procedure under law, the impugned orders have been passed by the Juvenile Justice Board as well as appellate Court.

4. It is further submitted that the missing report of the present case was lodged on 27.6.2017. The impugned order has been passed by the Juvenile Justice Board after two and half years of apprehending of the revisionist on 10.1.2020 on the basis of a report dated 13.12.2019 and sent the matter to children court, which is against the law and facts. 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.

5. 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 Juvenile Justice Board 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.

6. Certified copies of the impugned orders dated 10.1.2020 and 26.10.2021 have been filed. After giving opportunity to file counter affidavit, opposite party No. 2 has not filed any counter affidavit. It is evident that the main thrust of the argument of the learned counsel for the revisionist is that the Juvenile Justice Board has passed the impugned order after about two years and six months of apprehending the revisionist.

7. 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.

8. The missing report dated 27.6.2017 was lodged by father of the victim stating that on 24.6.2017 at 12.00 noon, his son along with his clerk Vikas Joshi had gone from civil court, Saharanpur to Roorkee District Court by motorcycle to get information regarding the date of case. Around 3.00 p.m., his son informed on mobile phone that he is coming back to Saharanpur from District Court, but he did not return till 8.00 p.m. He tried to contact his son on both his mobile numbers, but his mobile numbers were switched off. He also tried to search his son in his relation and neighbourhood, but failed to find him. Murshi's brother Vimal called the father of the victim several time that both have not reached to his home also due to which his family members were upset. On 5.7.2017, the missing report was converted under Section 364, IPC.

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

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

(3) x    x     x   x
 
(4)       x                                x                                        x                        x
 
(5)      x                                x                                         x                        x
 

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."

10. 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.

11. 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.

12. Both the parties admitted that the impugned order dated 10.1.2020 has been passed by the Juvenile Justice Board after 2-1/2 years of apprehending of the revisionist on the basis of a report dated 13.12.2019. Learned counsel for the parties have not disputed the following facts.

(a) The incident took place on 24.6.2017 at about 12.00 noon.

(b) The revisionist was 16 years, 11 months and 21 days old at the time of incident as decided by the Juvenile Justice Board vide order dated 6.1.2018 on the basis of High School Marks-sheet.

(c) The revisionist was apprehended in the present case on 15.7.2017.

(d) The Juvenile Justice Board has passed the order dated 10.1.2020 after about 2 years and 6 months of apprehending the revisionist.

13. The impugned order has been passed on the report dated 13.12.2019 which was passed after about 2-1/2 years of apprehending the revisionist.

14. In view of the above facts and circumstances, the present criminal revision is allowed and the order dated 26.10.2021 passed by Special Judge, POCSO Act/Additional Sessions Judge, Court No. 13, Saharanpur and the order dated 10.1.2020 passed by Juvenile Justice Board, Saharanpur 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).

(Sanjay Kumar Pachori, J.)

Dated: 12.9.2023

T. Sinha