Shanu Raja vs State Of U.P.
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Allahabad High Court

Shanu Raja vs State Of U.P. on 2 February, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:18813
 
A.F.R.
 
Reserved on : 24.11.2023
 
Delivered on : 2.2.2024
 

 
In Chamber
 
Case :- APPLICATION U/S 482 No. - 31760 of 2023
 
Applicant :- Shanu Raja
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Saurabh Gour,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vinod Diwakar,J.
 

1. This judgment is being structured in the following conceptual framework to facilitate the discussion:

I

Prosecution Case in Brief

II

Issue before this Court

III

Submissions

IV

Broad Reasons and Objectives for the Enactment of the Juvenile Justice (Care and Protection of Children) Act, 2015

V

Factual Analysis of the Case

VI

Conclusion

2. I heard Shri A.B.L. Gour, learned Senior Counsel, assisted by Shri Pradeep Kumar Bhardwaj, learned counsel for the applicant, and Shri Vaibhav Anand Singh, learned A.G.A. for the State Respondent and perused the record.

I. Prosecution Case in Brief

3. As per the prosecution's case, while the complainant party was sowing in the field, the accused party attacked them with a sharp-edged weapon and also resorted to fire. One of the injured died in hospital, whereas three victims sustained serious injuries. The petitioner is also arrayed one of the accused along with six others. On reporting to the police on 11.10.2016, an FIR No.0484 of 2016 under sections 302, 147, 148, 149, 307, 504 & 506 IPC was registered at P.S. Pali, District Lalitpur. After concluding the investigation, the police filed a charge sheet in the instant case on 21.7.2017 before the Juvenile Justice Board qua petitioner.

4. The petitioner claims to be minor at the time of the offence and placed reliance on the High School Certificate dated 15.5.2016 issued by the Board of High School and Intermediate Education, Uttar Pradesh, in which the applicant's date of birth is mentioned as 19.9.1999. The petitioner was 17 years and 22 days old at the time of the incident. In essence, the petitioner was over sixteen years old but less than eighteen years of age; therefore, claim rescue of section 15 read with section 14(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015. The core argument of the petitioner is that the order dated 19.7.2019 passed by the Juvenile Justice Board, Lalitpur, is defective in law and, thus, has no legal sanctity, therefore, the Children's Court, has no competent jurisdiction. Notably, the Juvenile Justice Board, Lalitpur, initially tried the matter, and after it, vide impugned order dated 19.7.2019, holding the juvenile (petitioner) has the physical capacity to commit the murder and could understand the consequence of the offence and the circumstances in which the murder has been committed referred the matter to the Children's Court (POCSO Act), Lalitpur for further trial

II. Issue before this Court

5. Aggrieved by the impugned order dated 19.7.2019, the petitioner has preferred the instant petition to transfer the case to the Juvenile Justice Board, Lalitpur, for further trial in accordance with the provisions of the Act1. In essence, whether the Board was right to invoke the provision of section 15 of the Act in utter disregard of section 14(3) of the Act1 and justified in transferring the case in question for further trial to the Children's Court having jurisdiction to try such offences.

III. Submissions

6. In this background, Shri A.B.L. Gour, learned Senior Counsel assisted by Shri Pradeep Kumar Bhardwaj, learned counsel for the petitioner, outlined his arguments as under:

6.1 On completion of the investigation, when it was revealed that the applicant was less than 18 years of age at the time of the incident, the Investigating Officer submitted the charge sheet before the Juvenile Justice Board qua petitioner and Chief Judicial Magistrate qua other accused persons.

6.2 The petitioner was a juvenile at the time of occurrence of the crime, and therefore, his case shall be tried before the Juvenile Justice Board.

6.3 On 2.2.2017, the petitioner filed an application before the Juvenile Justice Board, Lalitpur, to declare him a juvenile, and therefore, vide order dated 13.4.2017, the Juvenile Justice Board, after considering; a) the petitioner's mother's statement, b) statement of the Principal of Thakur Raghubir Singh Inter College, Lalitpur, c) the record brought by the Principal containing the 10th Class Mark-sheet, and d) Transfer Certificate declared the petitioner as a juvenile in accordance with the Act1.

6.4 Almost after a delay of two and half years, by the time the petitioner had completed 18 years, taking recourse of section 14 of the Act1 on the application of the prosecution, the Juvenile Justice Board held an inquiry and based on the primary assessment with regard to the petitioner's mental and physical capacity to commit murder observed that the petitioner had the ability to understand the consequences of the offence and circumstances in which the murder was committed. The preliminary assessment of the Board is in defiance of section 14(3) of the Act1, which mandates the preliminary assessment in cases of heinous offences within a period of three months from the date of the first production of the child before the Board. In the instant case, the child was first produced before the Board on 23.11.2016, and the impugned order was passed on 19.7.2019, after a delay of two years, seven months and twenty seven days. Therefore, the preliminary assessment is erroneous and is bad in law.

6.5 The impugned order is passed mechanically without the application of the judicial mind.

6.6 The mandatory requirement of section 14(3) must be addressed harmoniously with section 15 of the Act1.

7. Per contra, learned AGA states that the petitioner is facing a trial in a case in which one person has been brutally murdered in broad daylight, and the assailant party has seriously injured three persons. The preliminary inquiry conducted in pursuance to section 14 of the Act1 is infallible, and the Board has taken all necessary steps to ensure a fair and speedy inquiry. He next contends that the provision of section 14(5) of the Act1 has been followed in letter and spirit, and the preliminary assessment into heinous offences by the Board as contemplated under section 15 of the Act1 has no legally sustainable flaw.

IV. Broad Reasons and Objectives for the Enactment of the Juvenile Justice (Care and Protection of Children) Act, 2015

8. It is judicious to take a comprehensive overview of the statement of objectives and reasons, in addition to the relevant provision of the Act1, before dealing with the facts of the case, which are delineated hereafter in the succeeding paragraphs.

8.1 It was opportune by the parliament to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) to formulate comprehensive regulations for children entangled in legal conflicts and those requiring care and protection. This initiative meticulously considered the standards delineated in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) additionally the constitutional scheme guaranteed in Article 15 of the Constitution, besides other provisions, empowers the State to enact specific measures for children under Articles 39(e) and (f), 45, and 47 further ensuring the fulfilment of all children's needs and the protection of their fundamental human rights.

8.2 India's ratification of the United Nations Convention on the Rights of Children on 11th December 1992 obligates state parties to undertake appropriate measures when a child is alleged or accused of violating any penal law. These measures include treating the child in a manner consistent with promoting their sense of dignity and worth, reinforcing respect for the human rights of others, and considering the child's age and the desirability of promoting their reintegration into society.

8.3 The enactment of the Juvenile Justice (Care and Protection of Children) Act in 2000 aimed to safeguard children, subsequently amended in 2006 and 2011 to address implementation gaps and enhance child-friendliness. However, challenges emerged during its implementation, such as increasing incidents of institutional abuse, inadequate facilities, rehabilitation shortcomings, delays in adoption, and ambiguity in roles and responsibilities. These issues underscore the imperative to review the existing law.

8.4 Furthermore, the surge in crimes committed by children aged 16-18 highlights the inadequacy of current provisions under the Juvenile Justice (Care and Protection of Children) Act, 2000. National Crime Records Bureau data reveals a notable increase in such offences, particularly in heinous categories.

8.5 Addressing the above issues necessitates substantial amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000. Consequently, Act of 2000 was re-enacted and the Juvenile Justice Act, 2015 came into existence. This legislation is designed to encompass general principles for the care and protection of children, procedures for those in need of care and protection or in conflict with the law, rehabilitation measures, social reintegration strategies, adoption processes for orphaned, abandoned, and surrendered children, and provisions against offences targeting children. The overarching goal is to ensure children's proper care, protection, development, treatment, and social reintegration in challenging circumstances, adopting a child-friendly approach with the child's best interest at its core.

9. Section 2 (9) of the Act1 espouses the definition of the "best interest of the child" means the basis for any decision taken regarding the child to ensure the fulfilment of the child's fundamental rights and needs, identity, social well-being and physical, emotional and intellectual development who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence.

10. Section 3 of the Act1 addresses the inclusive general principles governing the administration of the Act. The relevant excerpt of the general principles which shall have a bearing on the facts of the instant case are reproduced hereinafter, namely (i) Principle of presumption of innocence.- Any child shall be presumed to be innocent of any mala fide or criminal intent up to the age of eighteen years; (ii) Principle of best interest.- All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential; (iii) Positive measures.- All resources are to be mobilised, including those of family and community, for promoting the well-being, facilitating the development of identity and providing an inclusive and enabling environment to reduce vulnerabilities of children and the need for intervention under this Act; (iv) Principle of non-stigmatising semantics.- Adversarial or accusatory words are not to be used in the processes pertaining to a child; (v) Principle of non-waiver of rights.- No waiver of any of the rights of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver; (vi) Principle of diversion.- Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole; (vii) Principles of natural justice.- Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review by all persons or bodies acting in a judicial capacity under this Act1 besides other fundamental grounds.

11. It is the function and responsibility of the Board to adjudicate and dispose of cases of children in conflict with the law in accordance with the process of inquiry specified in section 14 of the Act1 in alignment with the Model Rules2. The relevant rules of the Model Rules are reproduced hereinafter:

10. Post-production processes by the Board.- (1) On production of the child before the Board, the report containing the social background of the child, circumstances of apprehending the child and offence alleged to have been committed by the child as provided by the officers, individuals, agencies producing the child shall be reviewed by the Board and the Board may pass such orders in relation to the child as it deems fit, including orders under sections 17 and 18 of the Act, namely:

(i) disposing of the case, if on the consideration of the documents and record submitted at the time of his first appearance, his being in conflict with law appears to be unfounded or where the child is alleged to be involved in petty offenses;

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(5) In cases of heinous offenses alleged to have been committed by a child, who has completed the age of sixteen 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, a copy of which shall also be given to the child or parent or guardian of the child.

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(8) While examining a child alleged to be in conflict with law and recording his statement during the inquiry under section 14 of the Act, the Board shall address the child in a child-friendly manner in order to put the child at ease and to encourage him to state the facts and circumstances without any fear, not only in respect of the offense which has been alleged against the child, but also in respect of the home and social surroundings, and the influence or the offenses to which the child might have been subjected to.

(9) The Board shall take into account the report containing circumstances of apprehending the child and the offense alleged to have been committed by him and the social investigation report in Form-6 prepared by the Probation Officer or the voluntary or non- governmental organisation, along with the evidence produced by the parties for arriving at a conclusion.

10A. Preliminary assessment into heinous offenses 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 offenses, the Board may take the assistance of psychologists or psycho-social 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, 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.

11. Completion of Inquiry.- (1) Where after preliminary assessment under section 15 of the Act, in cases of heinous offenses allegedly committed by a child, the Board decides to dispose of the matter, the Board may pass any of the dispositional orders as specified in section 18 of the Act.

(2) Before passing an order, the Board shall obtain a social investigation report in Form-6 prepared by the Probation Officer or Child Welfare Officer or social worker as ordered, and take the findings of the report into account.

(3) All dispositional orders passed by the Board shall necessarily include an individual care plan in Form-7 for the child in conflict with law concerned, prepared by a Probation Officer or Child Welfare Officer or a recognised voluntary organisation on the basis of interaction with the child and his family, where possible.

12. Pendency of Inquiry (1) For the purpose of sub-section (3) of section 16 of the Act, the Board shall maintain a 'Case Monitoring Sheet' of every case and every child in Form-11. The said Form shall be kept at the top of each case file and shall be updated from time to time. The following points shall be considered so far as 'progress of inquiry' mentioned in Form-11 is concerned:

(i) time schedule for disposal of the case shall be fixed on the first date of hearing;

(ii) scheduled date given in column No.(2) of 'progress of inquiry' shall be the outer limit within which the steps indicated in column (1) are to be completed.

12. The principal issue before this Court is whether the requirement of section 14(3) of the Act1 is mandatory or directory. We are not oblivious of the law that when a public functionary is required to do certain things within a specified time, the same is ordinarily directory, but it is equally well settled that when consequences for inaction on the part of the statutory authorities within such specified time is specially provided it must be held to be imperative. The three-judge Bench of the Supreme Court in Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. and others3, held that;

43. In Sutherland's Statutory Construction, 3rd Edn., Vol. 3, at p. 102 the law is stated as follows:

"... unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the officer".

At p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At p. 111 it is stated as follows:

"As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive."

(See also Crawford on Statutory Construction, Article 269 at p. 535.)

44. In Dattatraya Moreshwar v. State of Bombay [(1952) 1 SCC 372 : AIR 1952 SC 181] it was held as under: (AIR p. 185, para 7)

"[G]enerally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."

45. In Craies on Statute Law, 8th Edn., at p. 262, it is stated thus:

" ... It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.' ... that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory."

13. In Sharif-ud-Din v. Abdul Gani Lone4, the Supreme Court has delineated the difference between a mandatory and directory rule. It was observed by the court that the fact that the statute uses the word shall while laying down a duty is not conclusive on the question whether it is a mandatory or a directory provision. The court has to ascertain the object which the provision of law in question is to subserve its design and the context in which it is enacted. If the object of the law will be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law related to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory.

14. The question of whether the statute is mandatory or directory is not capable of generalisation, and in each case, the court should try to understand the legislature's intention by analysing the entire provisions of the enactment and the schemes outlying it.

15. In D A Koregaonkar v. State of Bombay5, it was held that one of the important tests that must always be employed in order to determine whether a provision is mandatory or directory in character is to consider whether the non-compliance of a particular provision causes inconvenience or injustice and, if it does, then the court would say that, the provision must be complied with and that it is obligatory in its character.

16. In determining whether a provision of law is directory or mandatory, the prime object must be to ascertain the legislative intent from a consideration of the entire statute, its nature, its object, and the consequences that would result from construing it in one way or the other or in connection with other related statutes. The determination does not depend on the form of the statute.

17. In Ramkrishnamma v. Lakshmibayamma6, it was held that, in order to determine whether a particular provision is mandatory or directory, it would be necessary to ascertain whether the failure to comply with the requirement affects the very foundation of being validated, It is always difficult to demarcate with any degree of accuracy in a particular case what is mandatory and what is directory, or what is irregularity and what is a nullity. When a question arises as to how far the proceedings are affected by the contravention of any provision, it is necessary to see the scope and object of the particular provision which is said to be violated.

18. The word 'shall' is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid on that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute /section or phrase under consideration.

19. The central idea for enacting the Act1 is to make State responsible for ensuring that all needs of children are met and their fundamental human rights are protected, and secondly, as the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 were ill-equipped to tackle child offenders between the age group of 16-18 years, whose involvement has been increased especially in certain categories of heinous offences to make the provision more rational and to meet the requirement of the society.

20. In Raza Buland Sugar Co v. Municipal Board, Rampur7, the Supreme Court considered section 131 (3) of the U.P. Municipalities Act, 1916, which read as follows- "The Board shall, thereupon, publish in the manner prescribed in section 94 the proposal framed under sub-section (2) along with a notice in the form set forth in Schedule III". The Supreme Court decided whether the expression 'shall' in the provision was mandatory or directory. The court held that as long as publication was made in substantial compliance with the manner provided in section 94 (3), it would serve the purpose of the mandatory part of the section which provided for publication. It would, therefore, be improper to hold that the manner of publication provided in section 94 (3) was a directory, and so long as there is substantial compliance with that purpose, the mandatory part of section 131 (3) would be served. In arriving at the decision, the Supreme Court observed as follows:

"The question whether a particular provision of a statute which on the face of it appears mandatory, inasmuch as it used the word 'shall' as in the present case, is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and it nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to a person resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory".

21. The best interest of the child means the basis for any decision taken regarding the child to ensure the fulfilment of his fundamental rights and needs, identity, social well-being, and physical, emotional, and intellectual development shall be taken into consideration when a child is alleged or found to have committed an offence and who was not completed 18 years of age on the date of commission of such offence.

22. A person in conflict with the law is considered a juvenile when a person is below the age of eighteen years, whereas heinous offences include the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more.

23. A combined interpretation of section 3 with 8 of the Act1 makes it clear that the principle of best interest and principle of no-waiver of rights shall have the paramount consideration while dealing with the administration of the Act1. All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential, and no-waiver of any of the rights of the child is permissible or valid, whether sought by the child or person acting on behalf of the child, or a Board or a Committee and any non-exercise of a fundamental right shall not amount to waiver. The child is to be presumed innocent of any malafide or criminal intent until the age of eighteen.

24. It is the utmost responsibility of the Board, as mandated by section 8(3) of the Act1, to adjudicate and dispose of the case of the children in conflict in accordance with the process of inquiry specified in section 14 of the Act1 and disposing of the matter within three months from the date of the first production of the child before the Juvenile Justice Board. It is the equal responsibility of the court of Magistrate if the court finds that a person has committed an offence and was a child on the date of commission of the offence, it shall forward the child to the Board for passing the appropriate order under section 15 of the Act1.

25. It is a mandatory requirement under section 14 of the Act1 that a preliminary assessment of heinous offences as contemplated under section 15 of the Act1 shall be conducted by the Board within three months from the date of the first production of the child before the Board. Section 15 of the Act1 contemplates that the preliminary assessment into the heinous offences by the Board of a child who has completed or is about the age of sixteen years to have a preliminary assessment with regard to the person's mental and physical capacity to commit such offence and ability to understand the consequences of the offence, and the Board shall consider the circumstances in which the child in conflict allegedly committed the offence. The Board may take the assistance of experienced psychologists or, psycho-social workers or other experts as it may deem necessary. It's being provided explicitly that the assessment under section 15 of the Act1 shall be completed within the period specified in section 14 of the Act1. The Explanation appended with section 15 of the Act1 clarifies that the preliminary assessment is not a trial, but it is to assess the capacity of such a child to commit and understand the consequences of the alleged offence. In essence, the tenets of a fair trial is the consideration of the best interest of the child and no-waiver of any rights of a child is permissible or valid, whether sought by the child or a Board and maintaining a child-friendly atmosphere are integral parts of the core principles outlined in the Act1.

26. The Model Rules2, framed under the Act1, ponders all the procedural aspects of the provisions of the Act1 to be taken into consideration during the administration of the provisions of the Act1. Rule 9 of the Model Rules2 mandates the production of the child alleged to be in conflict with the law within 24 hours of his being apprehended by the police, along with the report explaining the reasons for the child besides other procedural aspects in this regard.

27. Rule 10 of the Model Rules2 establishes the post-production process by the Board on the production of the child before the Board. In cases of heinous offences alleged to have been committed by the child, who has completed the age of sixteen years, it mandates that the Child Welfare Police Officer shall produce the statements of witnesses and other documents prepared during the course of investigation within a period of one month from the first production of the child before the Board. The Board shall ensure that if the inquiry is not conducted in alignment with the spirit and object of the Act1, it shall use the power conferred by section 165 of the Evidence Act, 1872 so as to interrogate the child and proceed with the presumptions in favour of the child8. While conducting the preliminary inquiry under section 17 of the Act1, the Board shall address the child in a child-friendly manner in order to put the child at ease and to encourage him to state the facts and circumstances without any fear, not only with respect to the offence but also in respect of the home and social surroundings and influence. The Board shall also take into consideration the report containing the circumstances of apprehending the child and the offence alleged to have been committed by him and the social investigation report prepared by the Probation Officer or the voluntarily non-government organisations9. Before passing an order on preliminary assessment under section 15 of the Act, the Board shall obtain a social investigation report in accordance with Form-610.

V. Factual Analysis of the Case

28. In the background of the law discussed hereinabove, the facts of the case are being examined herein after. The documents annexed with the petition were not adequately sufficient to decide the instant case; therefore, the petitioner's counsel was called upon to file the proceedings conducted by the Juvenile Justice Board, Lalitpur, by way of supplementary affidavit, and accordingly, three supplementary affidavits were filed on i) 5.11.2023, ii) 10.12.2023 & iii) 13.12.2023.

29. The first affidavit dated 5.11.2023, appendices a report dated 19.7.2019 prepared under section 15 of the Act1 by a panel comprised of Assistant Professor, Psychology, Nehru Mahavidyalay, Lalitpur and Associate Professor, Sociology, Nehru Mahavidyalay, Lalitpur to assess the mental and physical capacity of the petitioner to commit murder and an ability to understand the consequences of murder and circumstances of which the alleged crime has been committed. On scrutiny of the preliminary assessment, it's observed that the petitioner was asked about the circumstances in which the alleged offence was committed. It was further observed that the petitioner was mentally and psychologically capable of answering the question posed by the panel. In response to the queries raised by the panel, the petitioner stated that he had been falsely implicated because of the hostility and he was not present at the place of the occurrence when the alleged offence was committed, and finally concluded that the petitioner has the ability to understand the consequence of offence and the circumstances in which he allegedly committed the offence.

30. On perusal of affidavit dated 10.12.2023, it revealed that the Juvenile Justice Board, vide order dated 13.4.2017, declared the petitioner minor in accordance with the Act1 after taking evidence of mother of the petitioner and the Principal of Thakur Raghubir Singh Inter College, Lalitpur, and observed that the petitioner was seventeen years and twenty-two days on the date of commission of alleged offence, and proceeded with the trial.

31. On examination of the affidavit dated 13.12.2023, it outlines that the petitioner was taken into first remand on 23.11.2016; after that, on 21.2.2017, the Board took cognisance of the matter, and after that, on 13.4.2017, the petitioner was declared juvenile. It further stipulates that the matter was listed fifty-seven times before the Juvenile Justice Board, and seven prosecution witnesses were examined during this period. On 28.6.2019, the Assistant Public Prosecutor filed an application stating that the petitioner was over sixteen years old at the time of the commission of the heinous offence, therefore, his psychological evaluation is necessary in the facts- circumstances of the case. The said application was allowed vide order dated 5.7.2019 by the Principal Magistrate, Juvenile Justice Board, Lalitpur, with a finding that in compliance with section 15 of the Act1, the preliminary assessment with regard to the mental and psychological capacity and the ability to understand the consequences of offence has not been conducted by the Board. The Board examined the report submitted by the Panel of Experts and referred the petitioner's case to the Children's Court.

VI. Conclusion

32. As discussed in forgoing paragraphs, section 14(3) of the Act1 statutorily mandates that the preliminary inquiry in case of heinous offences under section 15 of the Act1 shall be concluded by the Board within a period of three months from the date of first production of the child before the Board, even though, if the Board requires further extension of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate or, Chief Metropolitan Magistrate, for the reasons recorded in writing. For conducting the preliminary assessment, Rule 10(5) of the Model Rules2 prescribes that the Child Welfare Police Officer shall produce all documents collected during the investigation within a period of one month from the date of the first production of the child before the Board, additionally, Rule 10(8) & (9) of the Model Rules2 sets-forth that the Board shall take into consideration the facts and circumstances, surroundings and influences which the child might have been subjected to along with the social investigation report prepared in accordance with Form-6 by the Probation Officer or voluntarily or Non-Government Organizations along with the evidence produced by the parties for arriving at a just conclusion.

33. Chapter-II of the Act1 outlines the general principles to be followed in the administration of the Act. The fourth principle indicates that all decisions regarding the child shall be based on the primary consideration that they shall be in the best interest of the child and to help the child to develop full potential. Principle-9 articulates the principle of non-waiver of rights, which stipulates that non-waiver of any child's right is not permissible or valid whether sought by the child or person acting on behalf of the child, a Board or a Committee. Conjoint reading of the principle of best interest and principle of non-waiver of rights articulates that the paramount consideration is the welfare of the child while conducting the proceedings by the Board.

34. On the collective harmonious interpretation of section 14(3) along with sections 3(iv) & (ix), and in conjoint reading with Rule 10(5), (6), (7) & (8), 10(A) and Rule 11(1) & (3) of the Model Rules2, it could safely be established that the proceeding under section 14(3) of the Act1 shall strictly carry out within the statutory time frame, and if the Board does after three months from the first remand, the same shall be treated as non-est in the eye of law subject to section 14(4) of the Act1. The Juvenile Justice Board has also failed to take into account the provision provided at the bottom of section 15 of the Act1, which dictates that the assessment under this section shall be completed within a period specified in section 14 of the Act1. For the sake of clarity, section 14 of the Act1 and relevant portion of section 15 of the Act1 is extracted herein under:

"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 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 sub-section (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 ill-treatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such ill-treatment;

(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 child-friendly atmosphere during the proceedings;

(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 (2 of 1974);

(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 (2 of 1974);

(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 the heinous offence by Board

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

Emphases Supplied

35. The above-referred clause clarifies that in case of heinous offences committed by a child above the age of 16 years, the Board shall conduct the assessment under section 15 of the Act1 within a period specified under section 14 of the Act1.

36. In the facts stated herein above, the Board has erroneously allowed the application filed by the prosecution for assessing the mental and psychological health of the petitioner after a delay of almost two and half years from the first remand of the petitioner before the Board. Notably, seven prosecution witnesses were already examined, and the matter had been listed fifty-seven times before the Board; no cogent reason has been assigned in the impugned order, and in fact, the impugned order has been passed on a gross misinterpretation of section 14(4) of the Act1.

37. In the instant case, failure to comply with the provisions of sections 14(3) and 15 of the Act1 would result in an injury or prejudice to the substantial rights of the child and shall occasion a failure of justice. It would result in a serious inconvenience for the promotion of the real aim and objective of the legislation for which the Juvenile Justice (Care and Protection of the Children) Act, 2000 is amended from time to time.

38. In the foregoing discussions, the petition is allowed, and the impugned order dated 19.7.2019 is set aside.

39. The petitioner's case shall be tried before the Juvenile Justice Board in accordance with law. The Additional District Judge (POCSO), Lalitpur, is directed, through the District Judge, to remand Sessions Trial No.01 of 2019 titled as State v. Shanu Raja, to the concerned Juvenile Justice Board immediately after receipt of a copy of this order for completion of the trial.

Order Date :- 2.2.2024

Anil K. Sharma

Vinod Diwakar, J.