Ketan Sharad Badule vs State Of Mah. Thr. Pso Ps Gondia City ...
2025 Latest Caselaw 163 Bom

Bombay High Court

Ketan Sharad Badule vs State Of Mah. Thr. Pso Ps Gondia City ... on 7 May, 2025

2025:BHC-NAG:4891




              Judgment

                                                           406 revn264.233

                                          1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         NAGPUR BENCH, NAGPUR.

                    CRIMINAL REVISION APPLICATION NO.264 OF 2023

              Ketan Sharad Badule,
              aged about 22 years,
              r/o Deshbandhu Ward,
              Prabhu Road, Gondia.               ..... Applicant.

                                   :: V E R S U S ::

              State of Maharashtra,
              through Police Station Officer,
              Police Station Gondia City, Gondia. ..... Non-applicant.

              Shri S.V.Purohit, Counsel for the Applicant.
              Mrs.Ritu Sharma, Additional Public Prosecutor for the
              Non-applicant/State.
              Shri Atharva Manohar, Counsel to Assist the Prosecution.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 23/04/2025
              PRONOUNCED ON : 07/05/2025

              JUDGMENT

1. Heard learned counsel Shri S.V.Purohit for the

applicant; learned Additional Public Prosecutor Mrs.Ritu

.....2/-

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406 revn264.233

Sharma for the State, and learned counsel Shri Atharva

Manohar assisting the prosecution.

2. Rule. Heard finally by consent of learned counsel

appearing for the parties.

3. In this revision application, challenge is to

judgment and order in Criminal Appeal No.17/2021 and

common order below Exhs.1, 40, and 42 passed in

Sessions Trial No.27/2020 on 6.11.2023 by learned

District Judge-1 and Additional Sessions Judge, Gondia

whereby the appeal and applications Exhs.40 and 42 are

partly allowed by setting aside order dated 9.1.2020

passed by learned Principal Magistrate, Juvenile Justice

Board, Gondia (JJB) to conduct a fresh preliminary

assessment of the applicant by taking into consideration

relevant reports and giving an opportunity to the Child to

Conflict in Law (CCL) of cross examination.

.....3/-

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406 revn264.233

4. Facts relevant for disposal of this revision

application can be summarized, as follows:

On 9.11.2019, one Rehan Mahendi Valiyani lodged

a report that he along with Pratham @ Kanha

Shyamsundar Sharma (the deceased), Girish Nanwani,

and Mayank Kundani had been to Game Parlour of Lalence

Gupta at Manohar Chowk, Gondia. The applicant CCL

with other CCLs came there on a motorcycle and called

the deceased outside the Game Parlour and raised quarrel

with him. The deceased was assaulted by both of them

by fists and kicks blows. Thereafter the CCLs took out

knives from their waists and gave repeated blows on the

person of the deceased. When owner Lalence Gupta of the

Game Parlour made an attempt to intervene, he was also

assaulted. The deceased was chased inside the Game

Parlour by both CCLs and was assaulted brutally which

resulted into his death and both CCLs fled away from the

.....4/-

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406 revn264.233

spot of the incident. After registration of the crime, the

investigating officer completed investigation and filed

chargesheet against both CCLs. During the investigation,

it revealed that CCLs have purchased 6 knives from

FlipKart. Out of 6 knives, 4 knives were delivered to the

CCLs and 2 knives were pending to be delivered with the

"Blue Dart Courier Services". In all, 22 injuries were

found on the person of the deceased. The CCTV Footage

is also obtained. The CCL was kept in Observation Home.

Subsequently, he was released on bail.

5. After filing of the chargesheet, in view of Section

15 of the Juvenile Justice (Care and Protection of

Children) Act, 2015 (the Juvenile Justice Act), vide order

dated 20.12.2019, below Exh.1, in Juvenile Case

No.569/2019, preliminary assessment was directed of the

CCL. The Councilor and Social Worker submitted Report

that the CCL studying in 12th Std. is having remorse

.....5/-

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about his act and he is cooperative with the other

children. The Report of the Psychiatrist is also obtained

from which it revealed that there is no evidence of any

psychopathology in the patient and he understands nature

and possible consequences of the alleged offence and

circumstances under which the offence is committed.

6. After receipt of both the Reports, the JJB passed

order below Exh.1 that involvement of the CCLs is in

heinous offence. Birth date of another CCL is 8.10.2002,

the present CCL was born on 20.4.2002, CCL No.3 was

born on 22.8.2002, and CCL No.4 was born on 14.3.2002.

Thus, all CCLs are above 17 years of age when the

incident occurred. In all, 22 stab injuries are found on

the person of the deceased and prima facie it is apparent

that the act is committed after understanding the nature

and consequences of the said act. In view of the

Preliminary Assessment Report and above description, the

.....6/-

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406 revn264.233

Board has come to conclusion that there is need for trial

of these CCLs as an adult and referred the matter to the

Juvenile Court at Gondia.

7. Being aggrieved and dissatisfied with the same, the

present CCL preferred an appeal before learned District

Judge-1 and Additional Sessions Judge, Gondia who partly

allowed the application and remanded the matter back to

the JJB for a fresh preliminary assessment of all 4 CCLs by

taking all relevant reports and documents including Social

Investigation Report (SIR) and Psychiatric Report by

giving an opportunity to the CCLs of cross examination of

psychiatric and other witnesses to the documents and of

hearing. Learned Judge further directed the JJB to

conduct preliminary assessment within three months from

the receipt of the record.

.....7/-

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406 revn264.233

8. Being aggrieved and dissatisfied with the same, the

present revision is filed by the CCL on the ground that the

Appellate court has not considered that the Psychiatric

Report is not as per requirement as he did not conduct

any IQ or any other kind of Tests.

9. Being aggrieved and dissatisfied with the same, the

present revision is filed by the CCL on the ground that the

Appellate Court has not considered that the Psychiatric

Report is not as per the requirement as he did not conduct

any IQ or any other Tests. The Appellate Court has also

erroneously remanded the matter to the JJB after four

years after preliminary assessment is done in the year

2019. The Psychiatric Report does not indicate that

which Tests were performed and a very cryptic and

unreasoned certificate is issued and the Appellate Court

has mechanically remanded the matter to the JJB.

.....8/-

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406 revn264.233

10. Learned counsel for the applicant CCL submitted

that all the Reports are in favour of the CCL. The date of

offence is 9.11.2019 on which date the CCL was 17 years

and 6 months i.e. below 18 years of age. He took me

through various provisions of the Juvenile Justice Act.

There is absolutely non-compliance of provisions of the

Juvenile Justice Act. The JJB has wrongly placed reliance

upon the Psychiatric Report. The SIR is in favour of the

applicant CCL. He further submitted that preliminary

assessment was prior to 4 years. Now, no purpose will be

served by sending the applicant CCL for the fresh

assessment. The Psychiatric Report is without

ascertaining the IQ Test of the applicant CCL and the said

Report is a very cryptic and unreasoned. The preliminary

assessment was required to be done which was done in

the year 2019. The remand would result in filling lacuna

in the evidence. The Appellate Courts have powers to

.....9/-

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evaluate the evidence and the Appellate Court should

have decided the matter and arrived at a specific finding

based on the materials available on record that the

judgment of the Trial Court is erroneous and liable to be

aside. There is nothing adverse in the Social Investigation

Report. Therefore, the Appellate Court should have held

that the CCL was liable to be treated as juvenile. The

decision of treating the juvenile as adult is a very drastic

step which needs to be taken only after carefully

examining the mental and physical ability properly of the

CCL. Being it is very important requirement of law, the

same is to be strictly complied with before arriving at

conclusion that the child should be treated as adult. For

all above these reasons, the order passed by Appellate

Court remanding the matter back to the JJB for further

reassessment is liable to be quashed and set aside. The

.....10/-

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order passed by the JJB treating the applicant CCL as an

adult is also required to be quashed and set aside.

11. In support of his contentions, learned counsel for

the applicant CCL placed reliance on following decisions:

1. Thirumoorthy vs. State, Represented by the Inspector of Police, reported in 2024 SCC OnLine SC 375, and

2. Criminal Appeal No.1153/2018 (Mumtaz Ahmed Nasir Khan vs. The State of Maharashtra (through JJ Marg Police Station) and anr and other connected matters) decided by this court on 15.7.2019.

12. Per contra, learned Additional Public Prosecutor for

the State and learned counsel assisting the prosecution

strongly opposed the revision application and submitted

that the Appellate Court has rightly considered the aspect

of reassessment and rightly remanded the matter back to

the JJB. The investigation shows that there was

.....11/-

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406 revn264.233

preparation by CCLs to commit the said offence and they

purchased 6 knives from the FlipKart. Out of said 6

knives, 4 knives were delivered to the applicant CCL.

Whereas, 2 knives were pending with the "Blue Dart

Courier Services." In all, 22 injuries were found on the

persons of the deceased. Even, the owner of the Game

Parlour received injury on his right thumb as he

intervened in the incident and CCTV Footage shows

presence of the applicant CCL and other CCLs near the

spot on the day and time of the incident. The Psychiatric

Report shows that the CCLs are fully aware about

consequences of their act. The involvement of the

applicant CCL is in grievous offence and in view of the

provisions of the Juvenile Justice Act, the matter is rightly

remanded to the JJB. In view of that, the present revision

being devoid of merits is liable to be dismissed.

.....12/-

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13. In support of their contentions, learned Additional

Public Prosecutor for the State and learned counsel

assisting the prosecution placed reliance on following

decisions:

1. Barun Chandra Thakur vs. Master Bholu and anr, reported in (2023)12 SCC 401, and

2. Criminal Revision Application No.32/2020 (Mustafa Khan Jabbar Khan vs. State of Maharashtra and anr) decided by this court on 28.6.2023.

14. Before appreciating the above said submissions, it

is necessary to go through the relevant provisions.

15. Section 3 of the Juvenile Justice Act, refers to the

general principles to be followed in administration of

justice. Chapter II consists of Section 3 provides for

general principles of care and protection of children to be

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406 revn264.233

followed in administration of the Act. The relevant

clauses are reproduced as under:

Clause (i) Principle of presumption of innocence:

any child shall be presumed to be an innocent of any mala

fide or criminal intent;

Clause (iii) Principle of Participation: every child

will have a right to be heard and to participate in all

processes and decisions affecting his interest;

Clause (iv) Principle of best interest: primary

consideration in all decisions regarding the child shall be

in his best interest.

Clause (xvi) Principles of natural justice: standards

of fairness shall be adhered to including the right to fair

hearing, rule against bias and right to review by all

persons or bodies, acting in a judicial capacity under this

Act.

.....14/-

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16. Section 9 of the Juvenile Justice Act, provides for

the procedure to be followed by a Magistrate, who has not

been empowered to exercise the powers of Board under

the Act, when he is of the opinion that any alleged

offender brought before him is a child. In that case, the

Magistrate would immediately record his opinion and

forward the child along with the record of proceedings to

the Board having jurisdiction.

17. Section 15 deals with preliminary assessment into

heinous offences by Board, which is reproduced for

reference:

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

.....15/-

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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.

.....16/-

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Thus, Section 15 provides for preliminary

assessment where the alleged offence is heinous and

where the child has completed or is above the age of 16

years, the Board is required to conduct the preliminary

assessment with regard to his mental and physical

capacity to commit such offence, ability to understand the

consequences of the offence and the circumstances in

which he allegedly committed the offence and after such

assessment, pass an order in accordance with sub-section

(3) of Section 18. If the Board is of the opinion that the

child needs to be tried as an adult then the case be

transferred to the Children's Court having jurisdiction to

try such offence. Otherwise, the Board itself will proceed

to try the matter as a summons case under the Code of

Criminal Procedure (now BNSS).

.....17/-

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18. Section 18 deals with orders regarding child found

to be in conflict with law, which is reproduced for the

reference:

Section 18. Orders regarding child found to be in conflict with law. - (1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, [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;

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406 revn264.233

(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 childs 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 childs 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

.....19/-

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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 childs 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.

.....20/-

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Thus, Section 18 requires the Board to pass

appropriate orders where the child is found to be in

conflict with law. Different categories are provided and

various powers are conferred on the Board to take care of

such children who are below the age of sixteen years and

have committed heinous offence and for children up to

the age of eighteen years who have committed petty

offence or a serious offence. Subsection (1) of Section 18

and its various clauses from (a) to (g) confer a variety of

powers on the Board for issuing necessary directions. Sub-

section (2) gives additional power to the Board providing

for education, training, counselling, deaddiction

programmes and even restricting the movement of the

child, in his interest. Sub section (3) provides that the

Board if after the preliminary assessment under Section

15 passes an order that there is a need for trial of the

child as an adult, then the Board may order transfer of

.....21/-

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the trial of such a case to the Children's Court having

jurisdiction.

19. Section 19 deals with the powers conferred on the

Children's Court. The Children's Court upon receipt of the

preliminary assessment from the Board will decide

whether there is need for trial of a child as an adult in

accordance with the CrPC and pass appropriate orders

after trial subject to the provisions of this section as also

Section 21.

20. Under the Juvenile Justice (Care and Protection of

Children) Model Rules, 2016, it is only rule 10(A) which

refers to preliminary assessment into heinous offences by

the Board. Sub-rule (1) mentions that the first thing to be

determined by the Board is the age of the child as to

whether he is below or above the age of 16 years which is

to be done as per Section 14 of the Act. Sub-rule (2)

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mentions that the Board may take assistance of the

experienced psychologists or psycho-social workers or

other experts who have experience of working with

children in difficult circumstances. It also provides that

the "Model Rules" District Child Protection Unit would

have a panel of such experts to be made available to the

Board for its assistance or otherwise the Board could

access such experts independently. Sub-rule (3) declares

that the child shall be presumed to be innocent unless

proved otherwise while making the preliminary

assessment. Sub-rule (4) provides for the consequential

order to be passed by the Board where it holds that the

trial of the child is to be carried out as an adult for which,

it is required to assign reasons and further to provide

copy of order to the child forthwith.

21. In the light of the above said legal provisions,

especially Rule 10(A), as far as age of the applicant CCL

.....23/-

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406 revn264.233

and other CCLs is concerned, their birth certificates were

produced before the Board and the Board has observed in

the order that they all above are more than 16 years of

age.

22. The applicant CCL was also referred for assessment

to the Psychiatrist and the SIR is also placed on record.

23. As far as the Psychiatric Report is concerned, it

only mentioned that age of the child is 17 years at present

and there is no evidence of any psychopathology in the

patient and he understands nature and possible

consequences of the alleged offence and circumstances

under which the offence is committed. The SIR discloses

that during communication with the applicant CCL, it

revealed his birth date as 20.4.2002 and he is studying in

12th Std. He is cooperative with the other children and

.....24/-

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he is staying in Observation Home and there is possibility

of improvement and reformation in him.

24. Thus, preliminary assessment of the applicant CCL

made by the Board under Section 15 of the Juvenile

Justice Act is under consideration.

25. As per Section 15 of the Juvenile Justice Act, in

order to preliminary assessment of child in conflict with

law the board can take the assistance of any psychologist

or any other expert. The Board came to the conclusion on

the basis of Psychiatric Report that the applicant is able

to understand the nature and consequence of his act.

Admittedly, Psychologist has not ascertained the applicant

CCL's IQ Test and nothing is on record to show that he

has carried out preliminary test to ascertain that he

understands the nature and consequences of his act.

.....25/-

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26. The Hon'ble Apex has extensively dealt with this

issue in the case of Barun Chandra Thakur supra and

observed that the order of preliminary assessment decides

whether the child in conflict with law, falling in the age

bracket of 16-18 years and having committed heinous

offence, is to be tried as an adult by the Children's Court

or by the Board itself, treating him to be a child. There are

two major consequences provided in the Act, 2015, if the

child is tried as an adult by the Children's Court. First,

that the sentence or the punishment can go up to life

imprisonment if the child is tried as an adult by the

Children's Court, whereas if the child is tried by the Board

as a child, the maximum sentence that can be awarded is

3 years. The second major consequence is that where the

child is tried as a child by the Board, then under Section

24(1), he would not suffer any disqualification attached

to the conviction of an offence, whereas the said removal

.....26/-

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406 revn264.233

of disqualification would not be available to a child who is

tried as an adult by the Children's Court, as per the

proviso to Section 24(1). Another consequence, which

may also have serious repercussions, is that as per Section

24(2), where the Board or the Children's Court, after the

case is over, may direct the police or the registry that

relevant records of such conviction may be destroyed after

the period of expiry of appeal or a reasonable period as

may be prescribed. Whereas, when a child is tried as an

adult, the relevant records shall be retained by the

relevant Court, as per the proviso to Section 24(2).

The Hon'ble Apex Court further observed that

Preparation of SIR is a statutory requirement for every

child in conflict with law, which is to be prepared by the

Probation Officer or any other agency as may be directed

by the Board. Its format is also provided in Form 6 to the

Model Rules. The object of getting an SIR prepared is to

.....27/-

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obtain as much as possible information about the

background of the child. It has as many as 48 columns to

be filled up and thereafter, the Probation Officer has to

submit his opinion also.

While concluding the issue, the Hon'ble Apex Court

observed that we are conscious of the fact that the power

to make the preliminary assessment is vested in the Board

and also the Children's Court under Section 15 and 19

respectively. The Children's Court, on its own, upon a

matter being referred to under Section 18(3), would still

examine whether the child is to be tried as an adult or

not, and if it would come to the conclusion that the child

was not to be tried as an adult then it would itself

conduct an inquiry as a Board and pass appropriate

orders under Section 18. Thus, the power to carry out the

preliminary assessment rests with the Board and the

Children's Court. This Court cannot delve upon the

.....28/-

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406 revn264.233

exercise of preliminary assessment. This Court will only

examine as to whether the preliminary assessment has

been carried out as required under law or not. Even the

High Court, exercising revisionary power under Section

102, would test the decision of the Board or the

Children's Court with respect to its legality or propriety

only. In the present case, the High Court has, after

considering limited material on record, arrived at a

conclusion that the matter required reconsideration and

for which, it has remanded the matter to the Board with

further directions to take additional evidence and also to

afford adequate opportunity to the child before taking a

fresh decision.

27. In view of the above observations, if the facts of the

present case are taken into consideration, it reveals that

preliminary assessment should consist of mental and

psychological capacity to commit such offence and ability

.....29/-

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to understand the consequences of the offence and the

circumstances in which he allegedly committed the

offence. While passing order under Section 18 of the

Juvenile Justice Act, conducting preliminary investigation

and obtaining SIR are requirements. The order passed by

the JJB discloses that it had not considered the SIR. It

also reveals that the SIR and Psychiatric Report are also

not supplied to the applicant CCL.

28. The observations of the Hon'ble Apex Court in the

case of Barun Chandra Thakur supra show that CCL is

entitled to all relevant documents including SIR and

Psychiatric Report etc..

29. In the present case, neither Psychiatric Report; SIR;

nor other relevant documents are provided to the

applicant CCL so also opportunity of cross examination

was not given to the applicant CCL. This opportunity was

.....30/-

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required as to ascertain which test the Psychiatric has

conducted to know the mental capacity of the applicant

CCL. Report of the Psychiatric does not reveal that on

the basis of which test he came to conclusion that the

applicant CCL understands the nature and consequences

of the said crime. The mental age as per the applicable

formula based on the IQ of the child s also not ascertained

by the Psychiatric.

30. Learned counsel for the applicant placed reliance

on the decision of the Hon'ble Apex Court in the case of

Thirumoorthy vs. State supra which shows that the

accused therein was CCL and the proceedings were

required to be conducted in accordance with the

mandatory procedure prescribed under the Juvenile

Justice Act. Despite of the above said provision,

chargesheet was filed against the accused directly before

the Sessions Court. The Special Court held an enquiry,

.....31/-

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conducted psychological evaluation, procured the report,

and dismissed the application of the mother of the

accused. Thus, the observations of the Hon'ble Apex

Court in the said case show that Children's Court brushed

aside all requirements of holding an inquiry under Section

19(1)(i) of the Juvenile Justice Act and, therefore, the

CCL was never subjected to preliminary assessment by the

Board so as to find out whether he should be tried as an

adult and directing such exercise, at this stage, would be

sheer futility. The accused therein was acquitted by the

Hon'ble Apex Court.

31. As far as the present case is concerned, preliminary

assessment was held by the JJB. However, sufficient

opportunity was not granted to the applicant CCL and,

therefore, learned Sessions Judge remanded the matter

for fresh preliminary assessment of all 4 CCLs by taking

into consideration all relevant Reports and documents

.....32/-

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including SIR and Psychiatric Report by giving an

opportunity to the applicant CCL of cross examination of

Psychiatric and other witnesses to the documents and of

hearing.

32. Thus, the Appellate Court taking into consideration

the material remanded the matter and also directed for

further assessment of the applicant CCL and further

directed to carry out the said exercise within 3 months.

Though, at this stage, it is difficult to give an opinion as to

whether any further Test can be carried out as to the age

of the CCL and mental capacity, as now he is more than

21 years of age. However, it is the discretion of the JJB

who may be consulted as to whether any fresh

examination would be of any relevance/assistance or not.

33. As far as the order passed by learned District

Judge-1 and Additional Sessions Judge, Gondia is

.....33/-

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concerned, no illegality is committed by the Appellate

Court and, therefore, no interference is called for.

34. In this view of the matter, the revision being devoid

of merits is liable to be dismissed and the same is

dismissed.

Revision stands disposed of.

(URMILA JOSHI-PHALKE, J.) !! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 08/05/2025 10:54:32