Gujarat High Court
Dhruv Yogeshbhai Shinde Thro ... vs State Of Gujarat on 15 September, 2023
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 1024 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
5 To be circulated in the J.J.Boards and Children's Yes
Courts of the State
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CHILD IN CONFLICT WITH LAW THROUGH GUARDIAN
Versus
STATE OF GUJARAT
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Appearance:
MR. NISARG N JAIN(8807) for the Applicant(s) No. 1
MS JIRGA JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/09/2023
ORAL JUDGMENT
1. Rule. Learned APP waives service of
notice of rule on behalf of respondent State.
Rule is fixed forthwith.
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2. The child in conflict with law through
guardian, his father, has preferred the Revision
Application under section 102 of the Juvenile
Justice (Care and Protection of Children) Act,
2015 (hereinafter referred to as the 'J.J. Act,
2015' for short), challenging the order passed by
the learned appellate Court, Vadodara dated
08.07.2023 in Criminal Appeal No.263 of 2023 and
order dated 12.01.2023, passed by the learned
Juvenile Justice Board, Vadodara, (hereinafter
referred to as 'J.J. Board' for short) declaring
the need for trial of the applicant-revisionist
as an adult in Children's Court.
3. The child is in conflict with law in
connection with CR No.11196004220608 of 2022
registered at Gotri Police Station, Vadodara for
the offence punishable under sections 452, 394,
395, 397, 120B read with section 114 of IPC and
Section 25(1) of the Arms Act.
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4. The F.I.R. alleges that the accused had
entered into the house of the complainant,
committed the offence of dacoity, threatened the
complainant with dire consequences. 41 Tolas Gold
ornaments worth Rs.16,40,000/-, 200 gram sliver
valued at Rs.10,000/-, cash amount of Rs.40,000/-
in total, the loot of 16,90,000/- alleged to have
been committed.
4.1 The facts of the case indicate that a
complaint was given by Dipakkumar Jaisinhbhai
Patel, alleging that three persons had entered
his house, and one of them started giving him
fist blows. He received blows on his face, left
eyes and cheek and was also kicked by the said
person. Another man was standing in front of him
with black colour pistol and third person, short
in stature had tied his hands and legs with
adhesive-tape, who too had beaten him. His wife's
hands and legs were tied with adhesive-tape by a
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thin man and her mouth was shut with adhesive-
tape. That man too had beaten him, who told him
"Tijori Ka Chavi Do Muddamal Kaha Rakha Hai Wo
Batao Nahi To Tum Aaj Marega", after having said
that, that man entered the bedroom of the house,
while another man had made him lie-down in the
living room, and two persons had taken his wife
to the bedroom, where they asked for the keys,
and after taking the keys, they had entered
another bedroom and had removed a D-Mart Bag from
the cupboard and had placed it on the teapoy in
the living room.
4.2 Thereafter, the complainant states that,
one man with lean body, with another man had
removed the gold chain of 'Rudraksh', gold
bracelet and three finger rings from his person,
and had taken Rs.40,000/- cash from his pocket,
and had snatched a gold chain and a pendant from
his wife's neck, and during that process, pendant
from the chain had fallen down, and they had
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removed four gold rings from her fingers, and
thereafter had taken both of them in the bedroom,
and had made them lie-down on the floor, and
pillow was put on their heads. It is stated that
after staying there for about half an hour, they
all left the house. The complainant thereafter
had given details about the ornaments in the FIR,
which were there in the D-Mart bag, and in total,
he had valued the ornaments as of Rs.16,90,000/-.
4.3 According to the complainant, on
07.10.2022, at about 20 to 20:30 hours, three
persons had entered his house in black colour
clothes with black mask on their face, out of
them, one aged about 25 to 30 years was of short
stature, another of 20 years, and third person
aged between 25 to 35 years, who was wearing a
blue colour jeans and had netted boots.
Thereafter, on 09.10.2022, the complainant -
Dipakkumar Jaisinhbhai Patel referring to three
persons had informed the police that he had given
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a complaint for the loot of 41 Tolas Gold valued
at Rs.16,40,000/- and 200 Grams Silver of
Rs.10,000/- and cash of Rs.40,000/-, in total,
loot of Rs.16,90,000/- was committed, and had
also stated about the loot of a tablet of i-phone
company of Rs.20,000/-.
4.4 Again a statement of the complainant was
recorded on 17.10.2022, to further inform the
police about loot of currency in Euro, since he
was staying at Germany. While surprisingly on
that day i.e. on 17.10.2022, when the police had
shown him the muddamal, he informed that the
things looted on 07.10.2022, were imitation
jewellery, but as he was afraid, he could not
inform the same to the police.
4.5 By way of panchnama on 14.10.2022, one
of the accused - Anil @ Ravankalubhai Kanogiya
had volunteered to show the place, where they had
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thrown the bag of the imitation jewellery. The
police accordingly went alongwith him at a place
known as Vaghgodiya. The police had also seized
one motorcycle used in the commission of offence,
during the course of the panchnama, which was
sent to the police station, and thereafter all
had left for Vaghodiya, and on the side of
Modager Road, a white colour chain bag was found
from the bush, and in presence of panchas, when
it was opened, the bag was noted to have on it
impression written as Bagasera Gold Plated,
wherein the articles and two small purses were
found. These were taken to Bhadra Office, where
in presence of the goldsmith, panchas and accused
Anil @ Ravankalubhai Kanogiya, the yellow plated
metal ornaments were observed to be imitation
jewellery with 0% gold, and only an earring
measuring 00.740 miligram was found to be of
gold. Except one earring of Rs.2,600/-, the value
of other imitation jewellery was considered as
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Nil.
4.6 The charge-sheet has been filed against
six persons. Identification parade of three
accused were conducted; accused Anil @
Ravankalubhai Kanogiya, aged 24 years, and Biky @
Viky Shivkumar Bechuram Ghosh, aged 31 years,
were identified, while third person remained
unidentified.
5. The learned Children's Court, affirming
the order of J.J. Board declaring his trial to be
conducted as adult, had observed that the
juvenile is physically and mentally fit and knows
the consequences of committing the crime. The
juvenile had gone sitting on a two wheeler with
the co-accused Hira Mama. Thus, according to the
appellate Court it cannot be said that the
juvenile does not know the consequences of the
crime and that he has not mistakenly reached at
the place of offence. In this circumstance, it
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was observed, that the juvenile has committed the
offence, and, therefore, confirmed the order of
Board to be tried as an adult.
6. Learned advocate Mr. Nisarg Jain for the
revisionist - applicant stated that the
complainant had not described the present child
in conflict with law alleged to have entered his
house for the commission of offence, this major
fact, Advocate Mr. Jain submitted, has gone
unnoticed by both Board and the appellate Court.
6.1 Referring to the contrary observations
made by the Additional Sessions Judge, Vadodara
in order dated 17.11.2022, in Criminal Appeal
No.372 of 2022, and order by 3 rd Additional
Sessions Judge, Children's Court on 08.07.2023 in
Criminal Appeal No.263 of 2023, Advocate Mr.
Nisarg Jain stated that Criminal Appeal No.372 of
2022 was moved by the child in conflict with law
under section 101 of the J.J. Act for his bail,
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and the learned Judge had referred to the case
papers to observe the statement of the present
applicant - revisionist, and, according to
observation the juvenile had come in contact with
one Hirabhai, three to four months ago.
6.2 Mr. Nisarg Jain, learned advocate for
the child in conflict with law, submitted that
the investigation revealed, that most of the
ornaments were found not of original gold and
silver, and were imitation jewellery. After
investigation, value of the looted gold ornament
articles, was shown as Rs.2,600/-. Advocate Mr.
Jain stated that juvenile has been alleged with
the fact that he came in contact with adult-
accused through one Hira Mama, who is also a co-
accused to the case. The said Hira Mama had taken
the juvenile with him for dacoity, and the role
of the juvenile, as could be found, is that he
stood at the door and kept the door closed. After
the incident, he was given Rs.200/- to hire a
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rickshaw to reach back home, Advocate Mr. Jain
stated that, the material/ornaments alleged were
not recovered from the juvenile.
6.3 It is the contention of Advocate Mr.
Nisarg Jain that the reasoning of the J.J. Board
is without any application of judicious mind.
Both the courts have been carried away with own
self imagine facts, belief and personal
conviction of punishing the offender. Both the
courts have majorly relied upon the confessional
statement of juvenile, which Advocate Mr. Jain
states only discloses his presence at the place
of offence, and the fact that he was given
Rs.200 to return to his home after the incident.
6.4 Advocate Mr. Jain submitted that the
inquiry under section 15 of the J.J. Act is not
just to take confession to declare the juvenile
as a culprit under personal belief. Advocate Mr.
Jain submits that the learned courts are not
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supposed to find whether the juvenile reached at
the place of offence, mistakenly or otherwise.
While, it was incumbent on the learned courts to
find (1) whether the juvenile, who is alleged to
have committed the crime, had done so
intentionally; and; (2) whether the juvenile
knows the consequences of crime, and (3) further
was required to find whether juvenile was
physically and mentally fit to commit such
offence, even without the involvement of other
adult-accused; and (4) what are the circumstances
under which the crime was committed. Mr. Nisarg
Jain submitted that the learned courts were
required to make an inquiry under presumption of
innocence, and the courts were required to make a
preliminary assessment keeping in mind three
criterias, which are necessarily incorporated in
section 15 of the J.J. Act, 2015.
6.5 Advocate Mr. Nisarg Jain submitted that
the reasoning of the courts are purely confession
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centric and the reasons are tainted with the
confession of the juvenile. The Social
Investigation Report ('SIR' for short) and Social
Background Report ('SBR' for short) discloses
that the juvenile was influenced by one co-
accused, Hira Mama, who was from the
neighbourhood. The report indicates that juvenile
is a disciplined person and repents for the
involvement. Advocate Mr. Jain also stated that
the Courts were also required to appreciate the
fact that the juvenile was to appear in standard
10th repeater examination.
6.6 Advocate Mr. Nisarg Jain laid emphasis
on the law of foreign nations in relation to the
J.J. Act, relying on Rule 226 of the Arizona
Court Rules, which is for Transfer for Criminal
Prosecution, effected from July 1, 2022, which
states that every document relied upon for the
process of inquiry must be provided to the
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juvenile, and, that the referred rule provides
for the criteria of mental and physical
capability and understanding of consequences even
referring to past history of the crime of the
juvenile. Advocate Mr. Jain submitted that
Chapter-11, Article-7 of the Code of Virginia
(USA), notes transfer and waiver, which envisages
that the factors for determining the transfer of
the juvenile to adult court or not, are his past
criminal antecedents, punishment of the offence
is more than 20 years, usage of serious weapon,
the participation of the juvenile in the crime;
whether juvenile can be rehabilitated or not, and
the physical and mental capacity, disability or
illness of the juvenile. Mr. Jain submitted that,
Part-5, sections 22A to 29 of the Young Offenders
Act, 1994 of Western Australia, Australia, deals
with two opportunities to be given to the
juvenile, instead of sending to the adult court.
Advocate Mr. Jain submitted that for the first
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offence, the juvenile is usually referred to J.J.
Team and not to Court for Adult, as noted in
section 29. Advocate Mr. Jain also relied on
sections 34(1), 71, 72 to 79 of the Canada-Youth
Criminal Justice Act, 2002, to submit about the
assessment of mental and physical capacity of
juvenile, the past criminal antecedents of
juvenile. opportunity of hearing and fair process
and the onus upon the state.
6.7 Advocate Mr. Jain in support of his
submissions relied on the judgment of Foreign
Court rendered in J.M. (A Minor) v. Runeckles,
(1984) 79 Cr.App.R.255, contending that the
participation of juvenile in the offence and then
his understanding of offence will decide whether
he/she shall be transferred to Adult or Juvenile
Court. Mr. Jain also relied on the case of IPH V.
The Chief Constable, South Wales Police
Headquarters, (1987) Criminal LR 42, to submit
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that the participation of juvenile in the
offence, his understanding of the crime as a
serious wrong and not only moral wrong
(mischievous or naughty act) will decide whether
he/she shall be transferred to Adult or Juvenile
Court. Mr. Jain further relied on the judgment of
The Queen Vs. Michael ALF Mccormick, (2002) QDC
343, and stated that the juvenile was given the
benefit of doubt because of the inappropriate
reporting of the response of the juvenile by the
police officer. Mr. Jain submitted that had the
juvenile being given the questionnaire to answer
in detail or the police officer reported the
actual detailed answer, the learned Court could
have evaluated it properly.
6.8 Advocate Mr. Nisarg Jain contended that
the judgment of the Hon'ble Supreme Court in
Barun Chandra Thakur Vs. Master Bholu & Anr., in
Criminal Appeal No.950 of 2022, was declared on
13.07.2022. In compliance of the direction issued
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by the Apex Court, the National Commission for
Protection of Child Rights (hereinafter referred
to as 'NCPCR' for short) has laid down guidelines
for conducting preliminary assessment under
section 15 of the J.J. Act, 2015, in July 2023.
6.9 Advocate Mr. Jain submitted that J.J.
Board had failed to consider the judgment of
Barun Chandra Thakur(supra), and the appellate
Court too, has not considered Barun Chandra
Thakur (supra) as well as guidelines issued by
NCPCR. Advocate Mr. Jain submitted that it is a
duty of the courts while making the preliminary
assessment under sections 15 and 19 of the J.J.
Act, to adjudge the magnitude of participation of
the juvenile in crime:
(1) Whether he was physically and mentally
capable to commit the entire crime
without the presence and role of adult
accused;
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(2) In case of juvenile's personal interest
for committing the crime, if yes, what
bounty/money/outcome did the juvenile
receive;
(3) Whether the juvenile was driven away for
committing the crime under the influence
of some person or co-accused.
(4) Whether the juvenile, at the time of
committing the crime:
(a) knew the consequences of his act on
his life;
(b) his family's future;
(c) the impact on the complainant and
his family;
(d) the litigating consequences;
(e) outcome of the act;
(f) the juvenile's understanding of
whether he was committing serious
wrong, or it was just a mischievous
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act and moral wrong;
Mr. Jain submitted that the learned
courts have not mentioned about any
circumstances, whether the surrounding or social,
political and financial, under which, the offence
came to be committed.
6.10 Advocate Mr. Nisarg Jain submitted that
though the Hon'ble Apex court in Barun Chandra
Thakur (supra) had interpreted the provision of
section 15 of the J.J. Act; surprisingly, the
juvenile was never furnished with any material,
statements, SIR and SBR reports. Even the J.J.
Board's order was not given to the juvenile after
inquiry under section 15 of the J.J. Act. Mr.
Jain, thus, stated that there was violation of
Rule 10(5) as well as 10A(4) of the Juvenile
Justice (Care and Protection of Children) Model
Rules, 2016 (hereinafter referred to as the
'Model Rules, 2016') by the learned Courts. Thus,
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contended that the impugned orders of the
Board/appellate Court are against the principle
of natural justice, as well as, are unfair, since
opportunities was not accorded to the juvenile to
defend his case.
6.11 Advocate Mr. Jain contended that that
the children through out the world are to be
equally protected and any assessment of the child
should be with the principle of presumption of
innocence. Mr. Jain submitted that the task of
preliminary assessment under section 15 of the
J.J. Act being very delicate, it requires an
assistance of an expert, since it has its own
implication as regards the trial of the case.
6.12 Learned Advocate Mr. Nisarg Jain
submitted that, to meet with three criteria
incorporated in section 15 of the J.J. Act, the
courts are required to have three satisfactions
viz. (i) Objective Satisfaction, (ii) Subjective
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Satisfaction and (iii) Judicial Satisfaction.
6.13 Advocate Mr. Jain would submit that
Objective Satisfaction is based upon the original
and natural material and not evaluative. While
Subjective Satisfaction is the evaluative
material of Psychiatrist/ Psychologist/ Probation
Officer, wherein the interactive satisfaction of
such officer with the juvenile would become a
document. While referring to the necessity of
Judicial Satisfaction, Advocate Mr. Jain stated
that the courts would have to interpret and
evaluate the material collected during the
process of Objective and Subjective Satisfaction,
and personal interaction of the learned J.J.
Board with the juvenile. Mr. Jain, thus, stated
that it is only after following three processes,
the court is required to pass an order to
consider, whether the juvenile's case, meets the
requirement of three criteria, as laid down in
section 15 of the J.J. Act.
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6.14 Mr. Jain submitted that Subjective
Satisfaction is statutorily provided, since
section 15 of the J.J. Act mandates the courts to
take the assistance of psychologist or Psycho-
social worker or other experts, and the
explanation to the proviso in sub-section (1) of
section 15 clarifies that preliminary assessment
is not a trial, but is to assess the capacity of
such child to understand the consequences of the
alleged offence, and, thus the J.J. Board has to
conduct the preliminary assessment, with regard
to the physical and mental capacity of the
juvenile to commit such offence, ability to
understand the consequences of the offence, and
the circumstances in which he allegedly committed
the offence, and thereafter only should pass an
order in accordance with the provision of sub-
section (3) of section 18 of the J.J. Act.
6.15 Advocate Mr. Jain submitted that during
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the process of recording of an interactive
response and evaluating the material, the J.J.
Board and the Children's Court shall have to keep
in mind the common factors for the satisfaction
of three criteria, as incorporated under section
15 of the J.J. Act, and such satisfaction must be
for the relevant period when the juvenile has
committed the offence or prior to the said period
and not later when the juvenile is exposed to the
police authorities, media and people at large.
The past offences of the juvenile, which are not
trivial or petty in nature, would be sufficient
to consider for assessment regarding the ability
to understand the consequences as well as for the
understanding of the surrounding circumstances.
6.16 Advocate Mr. Jain suggested that the
factors, which are to be borne in mind while
considering the criteria of mental and physical
capacity, for the Court would be to see whether
the juvenile has taken serious participation in
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the offence, in a way that the juvenile is
mentally and physically fit and capable to commit
such offence, even if, the other adult co-
accused, in case of group offence, have not
participated in the commission of offence.
6.17 Advocate Mr. Jain stated that to
appreciate the factum of ability to understand
the consequences of offence, the satisfaction
should be that the juvenile has committed a
serious and conscious wrong and not moral wrong
in mischievous or naughty childish mindset; or
whether the juvenile is intentionally lying in
front of the J.J.Board or Children's Court under
the influence of the fear of the police or other
person, or the society, or in case of personal
gain, dishonestly lying, to escape from the
process of law. Mr. Jain submitted that the
confessional statement must not be taken into
consideration during the course of preliminary
assessment, as the purpose of law under section
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15 is not to adjudge the crime, but the
capability, understanding and the circumstances
in which juvenile allegedly committed the
offence.
6.18 Advocate Mr. Nisarg Jain, thus, stated
that to assess the circumstances in which the
juvenile is alleged to have committed the crime,
the factors necessary for the Court would be to
see, whether the offence has been committed under
some influence; whether the co-accused or any
other person had taken disadvantage of the
juvenile by taking the benefit of his immature
understanding, in committing the crime; whether,
in a situation of private defence, the juvenile
had committed the crime, or the purpose of
achievement of the juvenile in committing the
crime, was immature and influenced by the
external factor or person.
6.19 Advocate Mr. Jain submitted that section
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99 of the J.J. Act, 2015, Rule 10(5) and Rule
10A(4) of the Model Rules, and Chapter 3 of the
Guidelines of NCPCR, if read together, the
legislative intent of the parliament is to
provide the fair opportunity of hearing to the
child in conflict with law. Thus, Mr. Jain
submitted that section 99 of the J.J. Act is to
be given purposive interpretation, and the word
'confidential' and expression 'if it so thinks
fit' need to be read down under the 'Doctrine of
Purposive interpretation'. Mr. Jain, thus, stated
that, in case, when the J.J. Board in juvenile's
case between the age of 16 to 18 years, even in
heinous offences, after going through the papers
and Psycho./Psychi. Reports, is of the view that
the juvenile is to be tried by the J.J. Board
only, then in such cases the reports related to
the child, considered by the Committee or the
Board should be treated as 'confidential'. While
otherwise, to grant juvenile fair opportunity of
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hearing, following the principle of natural
justice, the copy of each documents, readable and
legible, relied upon as well as referred by the
J.J. Board should be supplied to the child in
conflict with law for his active participation in
the process of preliminary inquiry to consider
his case to be tried as an adult in the
Children's Court.
7. In the case of Barun Chandra Thakur
(supra), the Hon'ble Supreme Court while dealing
with section 15 of the J.J. Act for preliminary
assessment of child in conflict with law,
observed as under:
"65. While considering a child as
an adult one needs to look at
his/her physical maturity,
cognitive abilities, social and
emotional competencies. It must be
mentioned here that from a
neurobiological perspective, the
development of cognitive,
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behavioural attributes like the
ability to delay gratification,
decision making, risk taking,
impulsivity, judgement, etc.
continues until the early 20s. It
is, therefore, all the more
important that such assessment is
made to distinguish such attributes
between a child and an adult.
66. Cognitive maturation is highly
dependent on hereditary factors.
Emotional development is less
likely to affect cognitive
maturation. However, if emotions
are too intense and the child is
unable to regulate emotions
effectively, then intellectual
insight/knowledge may take a back
seat.
70. A child with average
intelligence/IQ will have the
intellectual knowledge of the
consequences of his actions. But
whether or not he is able to
control himself or his actions will
depend on his level of emotional
competence. For example, risky
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driving may result in an accident.
But if emotional competence is not
high, the urge for thrill seeking
may get the better of his
intellectual understanding.
71. Children may be geared towards
more instant gratification and may
not be able to deeply understand
the long-term consequences of their
actions. They are also more likely
to be influenced by emotion rather
than reason. Research shows that
young people do know risks to
themselves. Despite this knowledge,
adolescents engage in riskier
behaviour than adults (such as drug
and alcohol use, unsafe sexual
activity, dangerous driving and/or
delinquent behaviour). While they
do consider risks cognitively (by
weighing up the potential risks and
rewards of a particular act), their
decisions / actions may be more
heavily influenced by social (e.g.
peer influences) and/or emotional
(e.g. impulsive) tendencies. In
addition, the lack of experience
coupled with the child's limited
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ability to deeply understand the
long-term consequences of their
actions can lead to impulsive /
reckless decision making.
7.1 In Barun Chandra Thakur (supra), the
Hon'ble Apex Court has referred to the factum of
Cognitive maturation, observing intense emotion,
likely to affect the cognitive maturation, the
child with average IQ will have intellectual
knowledge of the consequences of his action, but
whether or nor, he will be able to control
himself or his actions will depend on his level
of emotional competence.
7.2 Emotional Intelligence otherwise known
as quotient-EQ., is the ability to understand,
use and manage emotions in positive ways to
relieve stress, commensurate effectively,
empathize with others, overcome challenges and
defuse conflict.
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7.3 While IQ-Intelligence Quotient is a
measure of your ability to solve problems and
think logically. EQ- Emotional Intelligence
Quotient, measures your ability to understand and
manage emotions.
7.4 The whole concept of emotional
intelligence (EQ) was originally introduced by
Psychologist Daniel Gokman in his 1995 book
"Emotional Intelligence : why it can matter more
than IQ", which is now considered a milestone
achievement in the categorization and study of
human emotions.
7.5 Poor EQ is linked to crime and other
unethical behaviours. Unfortunately, there is a
direct connection between poor emotional skills
and the rising crime rate. Children who have poor
emotional skills become social outcasts at a very
young age. They might be the class bully because
of a hot temper. They may have learned to reacts
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with fists rather than with reason. The path to
crime starts early in life, while there is no
doubt that family and environment are strong
contributors, the common threat is poor emotional
and social skills. Emotional Quotient as the
product of wisdom (w) and IQ, the relationship
can be expressed mathematically as EQ = W x IQ.
7.6 In Barun Chandra Thakur (supra), while
appreciating the world acknowledgment of treating
children in conflict with law differently than
adult in conflict with law, the Apex Court has
dealt with the aspect of 'child psychology' and
need to conduct a meticulous psychological
evaluation in following paragraphs:
74. The world acknowledges that
children in conflict with law
should be treated differently than
adults in conflict with law. The
reason is that the mind of the
child has not attained maturity and
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it is still developing. Therefore,
the child should be tested on
different parameters and should be
given an opportunity of being
brought into the main stream if,
during his juvenility, has acted in
conflict with law. To understand
psychology of the child, huge
rounds of studies have been made
not only recently but from age old
times and child psychology is a
subject which is being studied
world over and there are institutes
specifically dealing with the
developments and research on the
said subject. The enactments
dealing with children are enacted
world over.
75. It is to be noted that child
psychology is a specialised branch
of development psychology, its
genesis is based on the premise
that children and adults have a
different thought process. The
individualised assessment of
adolescent mental capacity and
ability to understand the
consequences of the offence is one
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of the most crucial determinants of
the preliminary assessment mandated
by section 15 of the Act, 2015. The
report of the preliminary
assessment decides the germane
question of transferring the case
of a child between 16 to 18 years
of age to the Children's Court.
This evaluation of 'mental capacity
and ability to understand the
consequences' of the child in
conflict with law can, in no way,
be relegated to the status of a
perfunctory and a routine task. The
process of taking a decision on
which the fate of the child in
conflict with law precariously
rests, should not be taken without
conducting a meticulous
psychological evaluation.
7.7 The Apex Court thus, expressed the need
of formulating the guidelines, to assist the J.J.
Board making preliminary assessment under section
15 of the J.J. Act, by the authority concern, in
following lines:
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87. Before concluding, we may
indicate that the task of
preliminary assessment under
section 15 of the Act, 2015 is a
delicate task with requirement of
expertise and has its own
implications as regards trial of
the case. In this view of the
matter, it appears expedient that
appropriate and specific guidelines
in this regard are put in place.
Without much elaboration, we leave
it open for the Central Government
and the National Commission for
Protection of Child Rights and the
State Commission for Protection of
Child Rights to consider issuing
guidelines or directions in this
regard which may assist and
facilitate the Board in making the
preliminary assessment under
section 15 of the Act, 2015."
8. It would be required to be noted that
expression 'preliminary assessment into heinous
offences by the Board' used in section 15 of the
J.J. Act, 2015, imposes upon the Board to pass an
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order, to consider, whether there is a need for a
trial of the said child as an adult. Under
section 18(3) of the J.J. Act, the Board shall
transfer the trial of the case to the Children's
Court having jurisdiction to try such offences.
As has been observed in paragraph no.75 of the
Barun Chandra Thakur (supra), the assessment of
adolescent mental capacity and ability to
understand the consequences of the offence of the
child in conflict with law is one of the most
crucial determinants of the preliminary
assessment mandated by section 15 of the J.J.
Act. This evaluation of 'mental capacity and
ability to understand the consequences' of the
child in conflict with law can, in no way, be
relegated to the status of a perfunctory and a
routine task. The process of taking a decision on
which the fate of the child in conflict with law
precariously rests, should not be taken without
conducting a meticulous psychological evaluation.
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8.1 The conclusion arrived at in Barun
Chandra Thakur(supra) in context with sections 15
and 19 read with section 18(3) of the J.J. Act,
is as under:
"81. 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 sections 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 exercise of
preliminary assessment. This Court
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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."
8.2 The power to make preliminary assessment
is vested in the Board as well as Children's
Court under section 15 and 19 respectively. The
Children's Court, on its own also, upon a matter
being referred to, under section 18(3) would
examine, whether the child is to be tried as an
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adult or not. The very provision under section
18(3) uses expression "need for trial of the said
child as an adult". The preliminary assessment
would not consider the child as an adult, but the
assessment is for the purpose of sending the
child to be tried in the Court as an adult and
the transfer of trial of the case is also to a
specific Court designated as Children's Court
having jurisdiction to try such offence. The
trial of the said child in conflict with law is
sent to the Children's Court, where the
Children's Court has to exercise its powers as
granted under section 19 of the J.J. Act. The
fact that the trial of the child in conflict with
law is sent to the Children's Court, is with the
significance, that the said child does not leave
his status as that of the child, since his trial
is conducted in the Children's Court.
8.2.1 Children's Court after the receipt of
preliminary assessment from the Board under
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Section 15 is again mandated to decide whether
there is a need for the trial of a child as an
adult as per the provisions of Code of Criminal
Procedure, 1973 and pass appropriate orders after
trial subject to the provision as laid down in
the said section 19 and section 21 considering
the special need of the child, the tenets of fair
trial and maintaining a child friendly
atmosphere. In case, where the Children's Court
comes to a decision that there is no need for
trial of a child as an adult, then the Children's
Court may conduct an inquiry as a Board and pass
appropriate orders in accordance to the
provisions of section 18. This specific
authority, which has been entrusted at the hands
of the Children's Court itself clarifies that the
preliminary assessment under section 15 is not a
simple routine task, since preliminary assessment
decides the fate of the child in conflict of the
law. The Board, so as the Children's Court each
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has to conduct the preliminary assessment in a
very meticulous way with the psychological
evaluation taking the assistance of experienced
psychologist and medical specialist.
8.3 In Barun Chandra Thakur (supra) case,
the Apex Court has specifically emphasised on the
expression "may" in proviso to section 15(1) of
the J.J. Act and has laid down that the
expression "may" would operate in mandatory form
and the Board would be obliged to take assistance
of experienced psychologist or psycho social
worker or other expert. In the said case, it has
been also further clarified that in case, where
the Board consists of one member, who is a
practicing professional with a degree in child
psychologist or child psychiatric chooses not to
take such assistance, it would record specific
reasons thereof. In Barun Chandra Thakur (supra)
case, Paragraph nos.76 and 79 clarifies the said
aspect, which read as under:
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76. As already noticed, the Board
consists of three members, one is a
Judicial Officer First Class and
two social workers, one being a
woman. The social worker appointed
as a member could be having a
degree in child psychology or
psychiatry but it is not necessary.
As such, the constitution of the
Board may not necessarily be having
an expert child psychologist. It is
for all the above reasons that it
has been provided not only in
sections 15 and 101(2) but also
under the Model Rules that
assistance may be taken from an
expert psychologist. Having regard
to the framework of the Act, 2015
and the Model Rules and the purpose
of preliminary assessment in terms
of Section 15 as also looking to
the varied composition of the
Board, we are of the view that
where the Board is not comprising
of a practicing professional with a
degree in child psychology or child
psychiatry, the expression "may" in
the proviso to section 15(1) would
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operate in mandatory form and the
Board would be obliged to take
assistance of experienced
psychologists or psycho-social
workers or other experts. However,
in case the Board comprises of at
least one such member, who has been
a practicing professional with a
degree in child psychology or child
psychiatry, the Board may take such
assistance as may be considered
proper by it; and in case the Board
chooses not to take such
assistance, it would be required of
the Board to state specific reasons
therefor.
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
psycho-social workers or other
experts would operate as mandatory
unless the Board itself comprises
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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."
8.4 In Barun Chandra Thakur (supra) case,
the Hon'ble Supreme Court had expressed
anxiously, referring in detail, the kind of
analysis or assessment required to be made under
section 15, to note that the J.J. Act, 2015 or
the Model Rules, 2016, do not lay any guidelines
or framework to facilitate the Board in making a
proper preliminary assessment on the relevant
aspect, and the only liberty to the Board is to
obtain assistance of an experience psychologist
or psycho-social worker or other expert, and the
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only assistance taken is to get the mental IQ of
the child, and in Barun Chandra Thakur's case, it
was observed with great concern that, with regard
to ability to understand the consequences and
also the circumstances in which the alleged
offence was committed, no report was called for,
from any psychologist, and it was indicated that
the task of preliminary assessment under section
15 of the J.J. Act is a delicate task with
requirement of expertise and has its own
implications as regards trial of the case, and,
therefore the Hon'ble Supreme Court was of a view
that it was expedient that appropriate and
specific guidelines in this regard be put in
place, and, thus it was left open for the Central
Government and the National Commission for
Protection of Child Rights and the State
Commission for Protection of Child Rights to
consider issuing guidelines or directions in this
regard which may assist and facilitate the Board
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in making the preliminary assessment under
section 15 of the J.J. Act.
9. Ms. Jirga Jhaveri, learned APP for the
State by way of communication of the Head of
Department of Psychiatry, Civil Hospital,
Ahmedabad, has submitted that the guidelines for
preliminary assessment under section 15 of the
J.J. Act published by NCPCR in April-2023, has
been put in force in State of Gujarat, and the
Apex Institute in the field of mental health
being National Institute of Mental Health and
Neurosciences (NIMHANS), Bangalore, under the
SAMVAD initiative in collaboration with the
Ministry of Women and Child Development, prepared
a detail guidance documents, for assessment of
children in conflict with law, and in accordance
with the guidance documents, the general outline
of Psychiatric Assessment of a child in conflict
with law as followed at Civil Hospital,
Ahmedabad, refers:
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1. Detailed history taking and Mental status
examination.
2. Detailed Psychological assessment by RCI
REGISTERED clinical Psychologist-
· IQ testing by Binet-Kamath Test OR
Bhatia Battery is administered if
the expert judges that the child
may have intellectual disability.
· Rorschach test for mental
stability.
· If the patient is not cooperative,
a second appointment can be given.
Alternative tests like
VSMS(Vineland Social Maturity
Scale) and TAT (Thematic
Apperception Test) may be applied.
3. If further clarification is required, or
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if the child has been brought from
another district, they can be admitted
to the hospital for detailed evaluation.
9.1 The Annexures, referred to are with the
communication, as under:
1) Guidelines for Preliminary
Assessment under Section 15 of the
Juvenile Justice Act, 2015,
published by National Commission for
Protection of Child Rights (NCPCR)
in April-2023.
2) Guidance Notes on Psychosocial and
Mental Health Assessment for
Children in Conflict with Law
(published by Department of Child
and Adolescent Psychiatry, NIMHANS,
in collaboration with Department of
Women and Child Development,
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Govt. of Karnataka).
3) Proforma for Psychosocial and Mental
Health Assessment for Children in
Conflict with Law (published by
Department of Child and Adolescent
Psychiatry, NIMHANS, in
collaboration with Department of
Women and Child Development, Govt.
of Karnataka).
4) Guidance notes on Preliminary
Assessment Report for Children in
Conflict with Law (published by
Department of Child and Adolescent
Psychiatry, NIMHANS, in
collaboration with Department of
Women and Child Development,
Govt. of Karnataka).
5) Proforma for Preliminary Assessment
Report for Children in Conflict with
Law (published by Department of
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Child and Adolescent Psychiatry,
NIMHANS, in collaboration with
Department of Women and Child
Development, Govt. of Karnataka).
10. The National Commission for Protection
of Child Right-April-2023, Guidelines for
conducting preliminary assessment under section
15 of the J.J. Act, 2015, in introductory
context, refers to the judgment of Barun Chandra
Thakur (supra) passed by the Hon'ble Supreme
Court, as referred hereinabove, and as per
indication of the Hon'ble Supreme Court, it has
observed that the task of preliminary assessment
under section 15 of the J.J. Act, is a delicate
task with requirement of expertise and has its
own implications as regards trial of the case.
10.1 In view of the Hon'ble Supreme Court's
direction NCPCR has developed guidelines
prescribing the key procedure that will enable
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the JJB to conduct the preliminary assessment in
consonance with the guiding principles and other
provisions of the Act, and as per the guidelines,
during their consultation carried out with
experts and SCPCRs, it had been noted that the
existing mechanisms such as SIR and SBR are
exhaustive in nature. While the course of
assessment, especially psychological assessment,
would differ from child to child. Therefore,
NCPCR framed the guidelines to include the
essential components and basic mechanism involved
in preliminary assessment to address the
ambiguity in understanding of the process and
steps to be followed.
10.2 The said guidelines lay down the
principles which are dealt as guiding principles,
noting that fundamental principles of care and
protection of children that guide the
implementation of J.J. Act, are significant for
these guidelines. The guiding principles laid
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down in section-3 of the J.J. Act, refers to:
(i) Principle of presumption of
innocence;
(ii) Principle of dignity and worth;
(iii) Principle of participation;
(iv) Principle of best interest;
(v) Principle of family
responsibility;
(vi) Principle of safety;
(vii) Positive measures;
(viii) Principle of non-stigmatizing
semantics;
(ix) Principle of non-waiver of
rights;
(x) Principle of equality and non-
discrimination;
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(xi) Principle of right to privacy
and confidentiality;
(xii) Principle of
institutionalization as a
measure of last resort;
(xiii) Principle of repatriation and
restoration;
(xiv) Principle of fresh start;
(xv) Principle of diversion;
(xvi) Principle of natural justice;
10.3 The guidelines in Chapter-2 under the
heading of 'Nature and Purpose of Preliminary
Assessment' has referred to the categorization of
the offences as defined under sections-2 of the
J.J. Act, of (i) heinous offences, (ii) Petty
offences and (iii) serious offences.
10.4 Having observed the need to follow the
steps to ensure fair and speedy inquiry and the
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fact that the initiation of the inquiry into the
heinous crime, has been differentiated based on
the age of the child, specifically noting section
14(5)(f)(ii) of the J.J. Act, which lays down
that, the 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 of the J.J. Act, the guidelines highlight the
point, that the aim of preliminary assessment is
not to seek confession from the child, nor to
reach at a conclusion of any sort. In the
guidelines, the aim and criteria for conducting
preliminary assessment, have been laid down in
the following manner:
"2.1 Aim of conducting preliminary
assessment- The sole aim of
preliminary assessment is to
determine whether the child in the
age of 16-18 years should be tried
as an adult in case of heinous
offence. This should not be
considered an inquiry into the
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offence or a prelude to the trial
by Children's Court or JJB. Also,
while making the preliminary
assessment, the child shall be
presumed to be innocent unless
proved otherwise [Rule 10A (3)].
2.2 Criteria for conducting
preliminary assessment- There are
two essential conditions that calls
for preliminary assessment under
section 15 of the J.J. Act, 2015.
First, the crime that has taken
place is in the category of heinous
crime as defined in the JJ Act,
2015. Second, the child who has
allegedly committed the crime is in
the age group of 16-18 years.
If the offence is allegedly
committed by more than one child,
preliminary assessment of each
child will be carried out
separately."
11. When the child in conflict with law is
brought before the J.J. Board, the most important
step for the Board is to determine the age of the
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child, to proceed further with regard to the
preliminary assessment in context of the child
alleged to have committed an offence, which falls
in the category of heinous crime. Section 94 of
the J.J. Act, deals with presumption and
determination of the age and the Board shall,
therefore, undertake the process of age
determination by seeking evidence obtaining:
i. the date of birth certificate from the
school, or the matriculation or
equivalent certificate from the
concerned examination Board, if
available; and in the absence thereof;
ii. the birth certificate given by a
corporation or a municipal authority or
a panchayat;
iii. and only in the absence of (I) and (ii)
above, age shall be determined by an
ossification test or any other latest
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medical age determination test conducted
on the orders of the Committee or the
Board:
Provided such age determination test
conducted on the order of the Committee or
the Board shall be completed within fifteen
days from the date of such order.
11.1 Sub-section (3) of section 94 clarifies
that the age recorded by the Board to be the age
of the person so brought before it, shall for the
purpose of the J.J. Act, be deemed to be the true
age of that person. The proviso mandates the age
determination test to be completed within 15 days
from the date of the order of the Board.
12. The guidelines of the NCPCR, thereafter
deals with four determinants to conduct the
preliminary assessment, which are as under:
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"(a) physical capacity of the
child to commit alleged offence-
Child's locomotor abilities and
capacities, particularly with
regard to gross motor functions
(such as walking, running,
lifting, throwing...such
abilities as would be required
to engage in most antisocial
activities due to which children
come into conflict with the
law). The expert shall not delve
into assessing the physical age
of the child as a part of the
preliminary assessment. The age
determination is concluded
before the initiation of
preliminary assessment by the
JJB and therefore, the experts
shall not repeat the process at
this stage. The role of the
experts with regard to assessing
physical capacity of the child
to commit the alleged offence is
only limited to assessing the
aspects as have been mentioned
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above in light of the physical
capacities that may be required
to carry out the offence.
(b) mental capacity of the child
to commit alleged offence-
Child's ability to make social
decisions and judgments, for
these are the critical executive
functioning abilities that
operate in the social context
that offense takes place in.
Thus, reporting on the child's
"mental capacity" would draw on
all the variables in the mental
health and psychosocial
assessment including substance
abuse problems, life skills
deficits, neglect or poor
supervision by family or poor
role models; experience of abuse
and trauma; mental health
disorder or other (neuro)
developmental disabilities such
as attention deficit
hyperactivity disorder;
intellectual disability.
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(c) the circumstances in which
the child allegedly committed
the offence- Psychosocial
vulnerabilities, including life
events and mental health
problems that the child is
afflicted with, i.e., factors
relating to family, school, peer
relationships, trauma and abuse,
mental health, and substance
use. Circumstances, therefore,
do not refer merely to the
immediate circumstances of the
offense itself, i.e., the last
event that occurred and led the
child into conflict with the
law. In fact, the offense
behavior, including its
immediate circumstances, is a
(cumulative) consequence of a
whole plethora of other
circumstances that have been
occurring over relatively long
time periods of the child's life
(perhaps since early childhood).
Thus, we take a longitudinal
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(versus a cross-sectional)
perspective of circumstances of
the offense.
(d) ability to understand the
consequences of the offence-
Child's knowledge and/or
understanding of social
consequences (what other people
will say or how they will
perceive the behaviour and
consequently what opinion
society would form about the
child including labelling and
stigmatization), interpersonal
consequences (how the behaviour
might affect personal
relationships in terms of loss
of trust, affection and respect
of family and friends) and legal
consequences of their actions
(knowledge of relevant laws on
sexual abuse/rape/robbery/
dacoity etc. and violation of
rules leading to serious
consequences for the child in
terms of punishment)."
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12.1 Learned advocate Mr. Nisarg Jain, while
dealing with his argument had laid emphasis on
the interactive session with the child, with
psychologist/probationer officer for the
subjective satisfaction in the course of
preliminary assessment. The guideline, thus, lays
down for such assessment through in-patient or
out-patient setting as deemed appropriate. Point
2.5 deals with sittings for conducting
preliminary assessment, which is reproduced
hereunder:
"2.5 Sittings for conducting
preliminary assessment- The
psychologists and other experts
must be given optimal
opportunity to interact with the
child. It is important that
appropriate time and space is
given for building rapport with
the child and for carrying out
the assessment by admitting the
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child through in-patient or out-
patient setting as deemed
appropriate. However, in case
the expertise is availed from
outside District, the child
should be assessed through in-
patient facility."
13. Advocate Mr. Jain had heavily
disapproved, the conduct of the Board of not
providing any documents to the child in conflict
with law in the present matter under the ground
of confidentiality, which according to Mr. Jain
has deprived the child of his right of active
participation in the inquiry, where Mr. Jain has
raised the issue of non-availability of the order
of J.J. Board transferring the child in conflict
with law to the Children's Court, as was not
permitted to obtain the certified copy of the
order dated 12.01.2023 in Criminal Appeal No.263
of 2023.
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14. The guidelines of NCPCR refers to Rule
10A(4) of the Model Rule, where Rule 10A sub-rule
(4) clearly lays down that the Board after
preliminary assessment under section 15 of the
Act passes an order that there is a need of trial
of the said child as an adult, it shall assign
reason for the same and the copy of the order
shall be provided to the child forthwith. The
points 4.1 to 4.3 in context with completion of
preliminary assessment in the guidelines are
reproduced hereunder for assistance:
"4.1 Period of completion of
preliminary assessment- Preliminary
assessment in case of heinous
offences is to be disposed of by
the JJB within a period of three
months from the date of first
production of the child before the
Board [section 14(3)].
In accordance with the Rule (10A
(4) of the JJ Model Rules 2016, the
Board after preliminary assessment,
shall assign the reason for the
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same and the copy of the order
shall be provided to the child
forthwith.
4.2 Final Report of preliminary
Assessment- It is important to note
that the report prepared by
psychologist or psycho-social
workers or other experts based on
their analysis cannot be submitted
as final Preliminary assessment
Report.
4.3 Transfer of Trial- The Board
shall pass an order that there is a
need for trial of the said child as
an adult, and order transfer of the
trial of the case to the Children's
Court having jurisdiction to try
such offences. The copy of the
order shall also be provided to the
child. Thereafter, upon receipt of
preliminary assessment from the
Board the Children's Court may
decide whether there is need for
trial of the child as an adult or
as a child and pass appropriate
orders [Rule 13(4) of JJ Model
Rules, 2015]."
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15. In post production processes of the
child in conflict with law, Rule 10(5) deals with
providing copies or statement of the witnesses
recorded and other documents prepared during the
course of the investigation to the child or
parents or guardian of the child within a period
of one month from the date of first production of
the child before the Board. Sub-rule (5) of Rule
10 refers as under:
"10(5)- In cases of heinous
offences 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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15.1 The referred sub-rule 10(5) makes
provision for giving the copy of the statement of
witnesses recorded by the Child Welfare Police
Officer and other documents prepared during the
course of investigation and Rule 10A(4) puts an
obligation on the Board after preliminary
assessment under section 15 of the Act to pass an
order assigning reasons for the need of trial of
the said child as an adult and the said sub-rule
mandates to give the copy of the order to the
child forthwith. Sub Rule 10A(4) reads as under:
Rule 10A(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.
16. The need to supply copy of the order to
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the child, child's family and the counsel as laid
down on the J.J. Board has been emphasized in
Marginal Note Chapter-3 of the guidelines of
NCPCR.
17. In Barun Chandra Thakur (supra), the
Apex Court while dealing with the concept of
natural justice and reasonable opportunity under
sections 99 of the J.J. Act has elaborated on the
context of confidentiality to be mentioned in
paras 50, 51 and 52, which are reproduced as
under:
"50. The Board and the Children's
Court have relied upon section 99
of the Act, 2015 to hold that they
were not required to provide the
copies of the material on record
available in the form of SIR, the
report of the psychologist, and
other material. On the other hand,
the High Court relied upon rule
10(5) of the Model Rules to hold
that the documents ought to have
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been provided to the child or his
guardian or his lawyer as the case
may be, and this having not been
done, it was a case where
reasonable opportunity had been
denied.
51. Section 99 provides that all
reports relating to the child and
considered by the Committee or the
Board are to be treated as
confidential. The proviso to
section 99(1) gives the power to
the Committee or the Board to
communicate the substance thereof
to another Committee or Board or
the child, his parents or guardian,
and may also give such Committee or
Board or the child or parent or
guardian, an opportunity to produce
evidence as may be relevant to the
matter stated in the report.
Section 99(2) states that the
victim would not be denied access
to the case record, relevant
documents and papers.
52. Maintaining confidentiality has
a different purpose but in no case
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can it be said that to maintain
confidentiality, the relevant
material would not be provided to
the child or his guardian or
parents. It would be in complete
contravention of the settled
principles of criminal
jurisprudence. Concept of
confidentiality used in section 99
is to prevent the reports from
coming in public domain or shared
in public. Its availability will be
confined to the parties to the
proceedings and the parties should
also refrain from sharing it with
third parties. Section 99(2) begins
with the non obstante clause and
proceeds to direct that the victim
should not be denied access to the
case report, orders and relevant
papers. Once the legislature's
intention is to provide material to
the victim there could never be an
intention in the name of
confidentiality to deny such access
to the records to the child or his
parents or guardians. The Board and
the Children's Court committed an
illegality in not providing the
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documents as demanded by
misinterpreting section 99 of the
Act, 2015."
18. The Guidelines of NCPCR in regard to
role of J.J. Board and other experts are
described in the following points:
3.1 The Juvenile Justice Board
(JJB) is solely responsible for
conducting preliminary assessment
as per section 14 (5) (f)(ii) and
Section 15(1) of the Act.
3.2 In case the Board does not
have at least one member who is a
practicing professional with a
degree in child psychology or child
psychiatry, the Board shall take
assistance of psychologists or
psycho-social workers or other
experts who have experience of
working with children in difficult
circumstances. In such cases the
Board would record specific
reason(s) for the same.
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3.3 In cases where the Board needs
to consult experts for preliminary
assessment, the Board may take
assistance from experts associated
with any District Mental Health
Programme or an expert from a
Mental Health Institution in the
District or outside the District.
District Magistrate (DM) will
provide the list of such experts
and Institutions.
3.4 Qualification of experts-The
psychologists and other experts who
are asked to assist JJB in
conducting the Preliminary
assessment, shall be possessing
qualification as required to be a
Member of the JJB under the JJ Act,
2015, that is as follows-
▪ a practicing professional
with a degree in child
psychology or psychiatry.
▪ No expert shall be
included in the process of
conducting the preliminary
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assessment, if he --
▪ has any past record
of violation of human
rights or child rights;
▪ has been convicted of an
offence involving moral
turpitude, and such
conviction has not been
reversed or has not been
granted full pardon in
respect of such offence;
▪ has been removed or
dismissed from service of
the Central Government or
a State Government or an
undertaking or corporation
owned or controlled by the
Central Government or a
State Government;
▪ has ever indulged in
child abuse or employment
of child labour or any
other violation of human
rights or immoral act.
19. In case of non-availability of the
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expert in the District, services of In-patient
Departments, are directed to be made available
from other districts. The said aspect has been
expressed in guideline 3.5, which reads as under:
3.5 Non-availability of experts in
the District- In case trained
psychologists and experts are not
available within a given District,
services of In-Patient Departments
may be availed from other
Districts. The State Child
Protection Society (SCPS) with
help of the Health Department
shall issue a list of Institutes.
20. Guideline in point 3.7 has expressed the
need of the presence of legal aid counsel to be
provided from District Legal Aid Service
Authority, who shall have the responsibility to
be present with the child when the preliminary
assessment takes place. The child is also granted
the liberty to have his private Advocate made
available to accompany the child and the legal
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aid counsel/private Advocate shall have the
responsibility to assist the child as per J.J.
Act and its Rules. The said requirement is
expressed in following terms:
3.7 Presence of a legal-aid
counsel- The child must be
provided with a legal-aid counsel
through the District Legal Aid
Service Authority, who shall have
the responsibility to be present
with the child when the
preliminary assessment is taking
place. The child may also be
accompanied by the private
advocate if available with the
child. The Legal Aid
counsel/Private Advocate shall
have the responsibility to assist
the child as per the J.J. Act and
its Rules.
20.1 The guidelines also emphasize on
imparting regular training to the experts, who
have the required qualification to assist the
J.J. Board in conducting the preliminary
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assessment. Such training are made to be provided
by National Institute of Public Co-operation of
Child Development or the respective Child
Protection Society.
20.2 The J.J. Board has to assign reason for
passing an order of requirement of the need for
trial of the said child as an adult. Sub-rule (3)
of Rule 10A of the Model Rules, 2016 very
specifically lays down that while conducting the
preliminary assessment the child shall be
presumed to be innocent unless proved otherwise.
Sub-rule (3) of Rule 10A reads as under:
"10A(3)- While making the
preliminary assessment, the child
shall be presumed to be innocent
unless proved otherwise."
21. Advocate Mr. Nisarg Jain expressing
dissatisfaction towards the appellate Court order
in Criminal Appeal No.263 of 2023 and Criminal
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Appeal No.372 of 2022 moved under section 101 of
the J.J. Act for bail, stated that while
considering the bail application, the appellate
Court has placed reliance on the statement of the
child in conflict with law and has reproduced the
extract of the statement in the order; while in
context with, the appellate Court in an order
rejecting the appeal which was filed under
section 101(2) of the J.J. Act, challenging the
order of the J.J. Board declaring the need for
trial of the said child as an adult, contended
that the facts of the case, which were not
relevant in connection to the present child in
conflict with law were relied upon, and even part
of statement of the child in conflict with law
dated 15.10.2022 was referred to, Mr. Jain stated
that only the aspect of mental capacity of the
child to commit the alleged act was considered,
while no importance was given to the physical
capacity of the child to commit the alleged
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offence, or the circumstances in which the child
allegedly committed the offence and the ability
of the child to understand the consequences of
the offence. Mr. Jain submitted that any
assessment without specifically assigning reason
to all the four aspects as incorporated in
section 15 of the J.J. Act, would do great
disservice to the society apart from injustice
caused to the child. Mr. Jain referred to the
provisions of section 15 of the J.J. Act in
support of his submission.
21.1 Section 15 bears relevance, hence, is
reproduced hereunder:
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
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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
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Code of Criminal Procedure, 1973 (2
of 1974):
Provided that the order of the
Board to dispose of the matter shall
be [applealable] 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.
21.2 The preliminary assessment as explained
under proviso to section 15(1) of the J.J. Act,
clarifies that preliminary assessment is not a
trial, but it is conducted to assess the capacity
of such child to commit and understand the
consequences of, the alleged offence. Thus, while
making a preliminary assessment, the J.J. Board /
Children's Court has to specifically deal with
all four criteria by assigning reasons to explain
the capacity of such child to commit offence.
Such assessment of capacity is in terms of
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physical capacity of the child to commit alleged
offence and mental capacity of child to commit
alleged offence. The facts of the case has to be
dealt with to understand the circumstances in
which the child allegedly committed the offence.
The circumstances to be referred are not merely
the immediate circumstances of the offence
itself, but also to other circumstances
cumulative in nature to have led to the immediate
circumstances related to a long period occurring
in the child's life, and finally the ability to
understand the consequence of the offence.
21.3 Other information, to be considered out
while carrying out preliminary assessment, has
been dealt with in point-4.4 of the guidelines of
the NCPCR. The marginal note with point-4.4 in
guideline very specifically lays down that any
confessional statement from SIR must not be taken
into consideration while conducting preliminary
assessment. Point-4.4 is reproduced hereunder:
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"4.4 Other information to be
considered while carrying out
preliminary assessment- During the
preliminary assessment, the Board
and experts shall also analyze and
take into consideration the
following-
▪ Social Investigation
Report (SIR)- The Board
directs the Probation
Officer, or in case a
Probation Officer is not
available to the Child
Welfare Officer or a social
worker, to undertake a social
investigation into the case
and submit a social
investigation report, within
a period of fifteen days from
the date of first production
before the Board [section
8(3)(e)]
▪ Social Background Report-
Child Welfare Police Officer
of the police station, or the
special juvenile police unit
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to which such child is
brought, shall, as soon as
possible after apprehending
the child, inform the
probation officer, or if no
probation officer is
available, a Child Welfare
Officer, for preparation and
submission within two weeks
to the Board, a social
investigation report
containing information
regarding the antecedents and
family background of the
child and other material
circumstances likely to be of
assistance to the Board for
making the inquiry [Section
13(1)(ii)]
▪ Individual Care Plan
(ICP)- The Board should also
consider the Individual Care
Plan (ICP) for the child in
conflict with law concerned,
prepared by a Probation
Officer or Child Welfare
Officer or a recognised
voluntary organisation on the
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basis of interaction with the
child and his family, where
possible. Thereafter, at the
time of final orders an
amended/updated ICP may be
submitted to the
Board/Children's Court.
▪ Witness report by CWPO-
In cases of heinous offences
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 [Rule
10(5)].
▪ Interaction with parents/
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guardians; staff of school or
other institution attended by
the child; peer group;
neighbours or any other
person deemed appropriate for
giving insights regarding the
child within the scope of
four determinants as given at
point 7 of the guidelines.
21.4 Here, in the present matter, while
order of J.J. Board, the appellate court has
placed reliance on the confessional statement,
which is against the principles to be followed in
the administration of the Act while examining the
criteria under section 15, and against the
principle of presumption of innocence, as
specifically expressed in Rule 10A(3) of the
Model Rules, 2016.
21.5 The essential element for the final
report of the J.J. Board, as per the guidelines,
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should not include any kind of statement or
documents that could be incriminating in nature.
It has been explained in point 4.5 in following
terms:
"4.5 Essential elements of the
final report by JJB- The final
report prepared by the JJB to be
submitted to the Children's Court
should include-
▪ JJB's decision on transfer of
trail;
▪ socio- demographic details of
the Child;
▪ whether the child also
qualifies as a child in
need of care and protection;
▪ details of the procedure
followed by the JJB,
psychologists and other
experts (if any) including
the psychological tests
administered;
▪ reason for including or
excluding the observations
recorded in the SIR, SBR,
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witness report;
The final report should not include-
▪ written/verbal statement of
the child or other persons
interviewed;
▪ details of observations made
during the assessment;
▪ any kind of statement or
document that could be
incriminating in nature."
22. The appellate Court after referring to
the facts of the case, in the impugned order
dated 08.07.2023 passed in Criminal Appeal No.263
of 2023, has referred that the child in conflict
in law was examined by clinical psychologist
under the order of the J.J. Board and the chief
examination of the clinical psychologist was
noted on 10.11.2022. On 05.01.2023, the cross
examination was recorded and thereafter on
12.01.2023, the order was passed by the J.J.
Board. The order of transferring the case of the
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child to the Children's Court came up for
challenge under section 101(2).
22.1 The clinical psychologist - Nikitaben
Sandipbhai Veryani had made the preliminary
assessment of the child in conflict with law on
17.01.2022, and during the course of preliminary
assessment, the child was produced with L.R.D.,
Kalpeshbhai Bhusinhbhai of Gotri Police Station.
In the cross-examination, the Doctor was put up
with a question that the child in conflict with
law would get frighten seeing the police and the
Doctor has answered in affirmative. The
examination by psychologist was in presence of
L.R.D. Kalpeshbhai Bhusinhbhai.
22.2 It was argued before the appellate Court
that since the child in conflict with law was
presented along with the police, the confession
of the crime was on the basis of fear and threat
of the police to make his statement before the
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clinical psychologist. In the cross-examination,
the Doctor was also asked the question with
regard to separate test to examine the IQ level,
accordingly except V.S.M.S., no other test was
conducted to test the IQ level of the child. It
was argued before the appellate Court that during
the course of preliminary assessment, the history
was noted regarding the offence alleged to be
committed by the child, which was argued, should
be the matter of evidence, as during the
preliminary assessment, the mental situation of
the child has to be examined, and Doctor cannot
come to the conclusion of any commission of
offence by the child. The range of examination
was between 90 to 95%, no definite result could
be declared, and it was argued that the report
was on the basis of presumption, and under
incomplete examination, only considering the
seriousness of the offence, the case of the child
has been transferred to the Children's Court, and
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except the Doctor, neither any expert opinion nor
any guidance has been taken. It was also argued
that there was no evidence to show that the child
in conflict with law was aware of the
circumstances.
22.3 The order of the appellate Children's
Court refers to the statement of the child in
conflict with law dated 15.10.2022 and two
reports of the Legal-cum-Probation Officer dated
01.11.2022 and 11.01.2023, to observe that the
officer has noted the personal details of the
child and as per the opinion of the Probation
Officer, the child has expressed remorse about
the offence, and further has noted that he would
be appearing as a repeater student for standard
10, and his parents would send him for tuition
and would take special care.
22.4 The evidence of Doctor Nikitaben
Sandipbhai Veryani - clinical psychologist, who
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was referred to, observed that according to her,
the mental capacity of child from his birth was
inconsistent with development and education
qualification (V.S.M.S.), and that the child
could relate to the circumstances and the
consequences of the offence, and during the
interaction, the child has accepted his offence
and has repented for the same. His IQ capacity
was considered to be normal within the range of
90 to 95%, and that according to the said range,
the child was aware of all the circumstances;
there were no any symptom of mental illness and
was matured enough as per his behaviour. As per
the current situation, there were all elements as
of adult, and further the child was also knowing
about the further processes of the offence. The
learned Judge found that the report has been
prepared on the basis of the answers given to the
questions during the interactive session, and
accordingly the child's IQ capacity, as per his
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age, was found to be of maturity level.
22.5 The Children Court has further observed
from the evidence of the clinical psychologist
and the report, that the child is coming from a
good family and is having an average
understanding. The learned Judge has observed
that the report, as referred in the Certificate
from the office of Medical Superintendent, S.H.G.
Hospital, Vadodara dated 18.10.2022, indicates
that the patient was clinical fit and, therefore
the learned Judge came to an opinion that, in
that circumstances, it is not believable that the
child had gone at the place of offence without
any knowledge of commission of offence of loot.
The learned Children's Court has referred to the
facts of the case and attributed that the child
had entered the house and had given hand blows to
the complainant and had tied the complainant with
adhesive-tape and had uttered the expression
"Tijori Ka Chavi Do Muddamal Kaha Rakha Hai Wo
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Batao Nahi To Tum Aaj Marega", and thereafter the
keys were taken by him and the act of removing
the ornaments from 'Tijori', was attributed to
the child in conflict with law.
22.6 These observations of the Children's
Court of attributing the total offence, to the
child in conflict with law is contrary to the
F.I.R., and the further statement of the
complainant. The complaint refers to three
persons, while the charge-sheet is against six
persons. The record suggests that the learned
Judge has also referred to the statement of the
child as was noted on 15.10.2022 to refer
Hirabhai, who was called as 'Hiramama'. The child
had come in contact with him, three to four
months prior to the incident, more specifically,
prior to 'Navratri', Hirabhai had informed him
that after a meeting, personally, they were to go
for committing theft, and Hiramama had asked him
to remain present and the child had agreed to do
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so.
23. The guidelines of NCPCR very
specifically laid down that any confessional
statement from Social Investigation Report (SIR)
must not be taken into consideration while
conducting preliminary assessment. The final
report, which is submitted by the J.J. Board to
the Children's Court shall include J.J. Board's
decision for transfer of trial, socio-demographic
details of the child, whether the child also
qualifies that the child in need of care and
protection, details of procedure followed by J.J.
Board, psychologist and other experts, if any,
including the psychologist test administered,
reason for including and excluding the
observations recorded in SIR, SBR and witness
report. It is specified in the guidelines that
the final report should not include
written/verbal statement of the child or other
persons interviewed; details of observations made
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during the assessment; any kind of statement or
document that could be incriminating in nature.
23.1 The impugned order of the Children's
Court reflects that the learned Judge has relied
upon statement of the child in conflict with law,
and has made reference of the statement of the
child during the interaction with the clinical
psychologist, which are incriminating in nature,
not warranted as per guidelines of the NCPCR. The
aim of the preliminary assessment is not to seek
confession from the child, nor to reach at any
conclusion of any sort. The sole aim of the
preliminary assessment is to determine whether
the child in the age of 16-18 years should be
tried as an adult in case of heinous offence, and
such assessment should not be considered as an
inquiry into the offence or prelude to the child
by the Children's Court or J.J. Board.
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24. Here, in this case, the facts suggest
that the child in conflict with law was proposing
to appear in standard 10 repeater examination. He
appears from good family. The Facts suggest that
he came in contact with Hirabhai known as 'Mama'
in the locality. The complaint does not suggest
that the child in conflict with law had entered
into the house of the complainant. The
chargesheet paper shows that the child was made
to stand out side the door and Hiramama has given
him Rs.200 to go back home. The bounties of the
loot was not shared by the child in conflict with
law. The muddamal was discovered at the instance
of one of the accused - Anil @ Ravankalubhai
Kanogiya, which were later on found, as imitation
ornaments. The complainant's version itself has
become doubtful. The police was also required to
inquire about the authenticity of the complaint,
since initially the allegation was made of loot
of original gold and silver ornaments, and
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thereafter the complainant registered his
statement that the looted articles were imitation
ornaments.
24.1 The learned Children's Court and the
J.J. Board had referred to the statement of the
child in conflict with law, which was
confessional in nature. It has been brought to
the notice that when the child was taken to the
clinical psychologist, he was accompanied by
L.R.D. - Kalpeshbhai of Gotri Police Station. How
and in what circumstances, the statement of the
child in conflict with law was recorded on
07.10.2022, also becomes questionable, when the
child was taken before the clinical psychologist.
24.2 In post-production processes by the
Board, Sub-rule (8) of rule 10 makes provisions
of giving a child-friendly atmosphere and to
encourage the child alleged to be in conflict
with law to state the facts and circumstances
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without any fear. The provisions, thus, provides
to deal with not only in respect of the offences
alleged against the child, but also in respect of
home and social surroundings, and the influence
or the offences to which the child might have
been subjected to. Sub-rule (8) of Rule 10 reads
as under:
"10(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 offence
which has been alleged against the
child, but also in respect of the
home and social surroundings, and
the influence or the offences to
which the child might have been
subjected to."
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25. Learned advocate Mr. Nisarg Jain
referring to the facts of the present case,
submitted that the learned Board was required to
encourage the child to state the facts and
circumstances without any fear, thus, the Board
was required to ensure that the child in conflict
with law when produced before the Board was not
accompanied by any police and the atmosphere
ought to have been child friendly while putting
the child at ease to have ensured that he is
disclosing the facts and circumstances without
any threatful atmosphere before the Board.
Advocate Mr. Jain contended that home and social
surroundings of the present child in conflict
with law shows that he has come from a
respectable family, however, was influenced by
one Hiramama, probably having failed in standard
10th exam was, not attending the school, the
circumstances, which were to be examined, were of
the relevant time of the offence and of other
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circumstances prior in the life of the child,
which might have ultimately culminated into any
form of conduct of the child, and under
preliminary assessment the judicial discretion is
to be exercised by examining any malafide or
criminal intent.
26. For the purpose of conducting the
preliminary assessment, as laid down in Barun
Chandra Thakur(supra), it is imperative to take
the assistance of psychologist or psycho-social
worker or other experts, who are experienced in
working with children in difficult circumstances.
The most important aspect, which has been very
specifically embolden under sub-rule 10A(2) is
while making preliminary assessment, the child
shall be presumed to be innocent unless proved
otherwise. The Board while passing the
preliminary assessment order regarding the need
for trial of the said child as an adult, shall
have to assign reason for the same. The Board
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decides whether the child should be transferred
on the finding of probable cause of the child's
guilt. Clause (xvi) of section 3 of the J.J. Act,
for general principles for the administration of
the Act, makes it clear that the basic procedural
standard of fairness shall be adhered to,
including the right to a fair hearing, rule
against bias etc. The decision passed by the
Board must necessarily be supported by reason, in
as much as, assigning reason is the best way out
to demonstrate the application of mind.
26.1 Order under section 15 of the J.J. Act
needs to demonstrate satisfaction regarding the
mental and/or physical capacity of the child to
commit the heinous offence; the ability of the
child to understand the consequences of the
offence and the circumstances in which the
alleged offence has occurred.
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26.2 Learned Advocate Mr. Jain has stressed
upon the requirement of three satisfactions to be
demonstrated for giving the reasons to the
criteria incorporated under section 15. The three
satisfactions, as has been rightly submitted by
Advocate Mr. Jain, would be (i) Objective
Satisfaction, (ii) Subjective Satisfaction and
(iii) Judicial Satisfaction, which start from
presumption of innocence and the whole exercise
for the judicial discretion would be for finding
of probable cause of the child's guilt.
26.3 The Court while determining; whether a
juvenile is a proper person to remain within the
jurisdiction of the Juvenile Court, after having
considered the juvenile's case, the seriousness
of number of alleged offences, would be required
to take into consideration including the fact;
(i) whether the alleged offence was committed in
an aggressive, violent, premeditated or willful
manner (ii) whether the alleged offence was
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against persons or property, with greater weight
being given to offences against the person,
especially dead or bodily injury resulted, (iii)
whether maximum punishment for such offence is as
define under section 2(33) of the J.J. Act, to
consider it as a heinous offence, which includes
offence for which minimum punishment under the
Indian Penal Code (45 of 1816) or any other law
for the time being in force is imprisonment for 7
years of more. (iv) Whether the alleged offence
involved the use of a fire arm or other dangerous
weapon by brandishing, threatening, displaying or
otherwise employing such offence; (v) the nature
of juvenile participation in the alleged offence.
27. Here, in the present case, the appellate
Court has referred to the complaint of the
matter; however, had failed to enter into the
details to gather the exact role of the present
applicant as child in conflict with law to the
alleged offence. The guidelines for conducting
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preliminary assessment by NCPCR refers in the
Marginal Note in point 2.1 that the aim of
preliminary assessment is not to seek confession
from the child, nor to reach at a conclusion of
any sort. The criteria for conducting preliminary
assessment deals with two essential conditions,
as observed in the guidelines; (i) the crime that
has taken place is in the category of heinous
crime as defined in J.J. Act, 2015 (ii) the child
who has immediately committed the crime is in the
age group of 16-18 years and if the offence is
allegedly committed by more than one child,
preliminary assessment of each child will have to
carried out separately. The guideline, point-2.4,
deals with determinants of preliminary
assessment. Those four determinants have been
dealt with in detail under point 2.4, while
trying to bring in maximum understanding of the
four determinants, to be dealt by the Board as
well as the Children's Court.
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27.1 The exercise of preliminary assessment
has to be made with the assistance of
Psychiatric/ Psychologist/ Probation Officer. The
Court while, dealing with the objective
satisfaction has to consider the material
supplied by the Child Welfare Police Officer, as
noted under Rule 10(5), who would produce the
statement of the witnesses recorded by him and
other documents prepared during the course of the
investigation, and such material are to be
produced within a period of one month from the
date of first production of the child, with a
copy to be supplied to the child or parents or
guardian of the child. The Board shall direct the
Probation Officer, or in case Probation Officer
is not available, the Child Welfare Officer or a
Social Worker to undertake the social
investigation into the case and submit a Social
Investigation Report (SIR) within a period of 15
days from the date of first production before the
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Board, as laid down under section 8(3)(e) of the
J.J. Act, 2015.
27.2 Rule 10(8) of the Model Rules, 2016
deals with the aspect that when an inquiry is
conducted by the Board under section 14 regarding
the child in conflict with law, the Board shall
have to 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 offence which has been alleged
against the child, but also in respect of the
home and social surroundings, and the influence
or the offences to which the child might have
been subjected to. Such inquiry under section 14
of the J.J. Act, would permit the Board to
inquire the facts and circumstances going beyond
the statements of witnesses and documents
prepared by Child Welfare Police Officer, as the
real facts and circumstances, could be discerned
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during the interactive talk with the child. The
confessional statement from SIR or SBR shall not
be taken into consideration while conducting
preliminary assessment, and reasons has to be
given in dealing with four determinants; (a)
physical capacity of the child to commit the
alleged offence; (b) mental capacity of the child
to commit alleged offence (c) circumstances in
which the child allegedly committed the offence
(d) ability to understand the consequences of
offence. The judicial satisfaction, thus, while
dealing with the four determinants, takes into
consideration the objective satisfaction,
subjective satisfaction and even the satisfaction
of the Board, as referred in Rule 10(8) of the
Model Rules, 2016, while dealing with the inquiry
under section 14 of the J.J. Act, encouraging the
child to state the facts and circumstances within
fear.
28. It is to be kept in mind that though
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statute permits the child of 16 years and beyond
to be tried in a heinous offence as an adult, it
does not mean that the statute intents that all
those children should be subjected to adult
punishment, and therefore while dealing with the
preliminary assessment, all the statutory
criteria must be fulfilled. There may be cases,
where juvenile confesses to the crime, and the
SIR or SBR may record that the child has been
manipulative, evasive and even contradictory; and
perhaps the gravity of the offence and the public
outcry may have received greater predominance in
the report, still the evaluation must always
start with presumption of innocence.
28.1 The explanation to section 15 of the
J.J. Act clarifies that the preliminary
assessment is not a trial. This is an exercise to
assess the child's capacity to commit and
understand the consequences of the alleged crime.
The Board, thus, has to be very careful while
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making a preliminary assessment, and should not
mechanically rely on SIR or SBR without analysing
the juvenile case. Seriousness of the offence is
not the sole factor, which could control the
decision.
29. In case of Shilpa Mittal Vs. State of
NCT of Delhi and Another, reported in AIR Supreme
Court 405, the Hon'ble Supreme Court was dealing
with lacuna in the enactment raised an issue
"Whether an offence prescribing a maximum
sentence of more than 7 years imprisonment but
not providing any minimum sentence, or providing
a minimum sentence of less than 7 years, can be
considered to be a 'heinous offence' within the
meaning of section 2(33) of the Act. Paras 30,
31, 33 to 35 of the said judgments reads as
under:
"30. We must also while
interpreting an Act see what is the
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purpose of the Act. The purpose of
the Act of 2015 is to ensure that
children who come in conflict with
law are dealt with separately and
not like adults. After the
unfortunate incident of rape on
December 16, 2012 in Delhi, where
one juvenile was involved, there
was a call from certain sections of
the society that juveniles
indulging in such heinous crimes
should not be dealt with like
children. This incident has also
been referred to by the Minister in
her introduction. In these
circumstances, to say that the
intention of the Legislature was to
include all offences having a
punishment of more than 7 years in
the category of 'heinous offences'
would not, in our opinion be
justified. When the language of the
section is clear and it prescribes
a minimum sentence of 7 years
imprisonment while dealing with
heinous offences then we cannot
wish away the word 'minimum' .
31. No doubt, as submitted by Mr.
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Luthra there appears to be a gross
mistake committed by the framers of
the legislation. The legislation
does not take into consideration
the 4th category of offences. How
and in what manner a juvenile who
commits such offences should be
dealt with was something that the
Legislature should have clearly
spelt out in the Act. There is an
unfortunate gap. We cannot fill the
gap by saying that these offences
should be treated as heinous
offences. Whereas on the one hand
there are some offences in this
category which may in general
parlance be termed as heinous,
there are many other offences which
cannot be called as heinous
offences. It is not for this Court
to legislate. We may fill in the
gaps but we cannot enact a
legislation, especially when the
Legislature itself has enacted one.
We also have to keep in mind the
fact that the scheme of the
Juvenile Justice (Care and
Protection of Children) Act, 2015
is that children should be
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protected. Treating children as
adults is an exception to the rule.
It is also a well settled principle
of statutory interpretation that
normally an exception has to be
given a restricted meaning.
33. It was urged by Mr. Luthra
that while defining 'heinous
offences' the word 'includes' has
been used which would mean that the
definition is an inclusive
definition and includes things not
mentioned in the definition. We are
not impressed with this argument
since the definitions of 'petty
offences' and 'serious offences'
also use the word 'includes'. In
fact the word 'includes' is a
surplusage. The word 'includes' in
the three definition clauses does
not make any sense. There is
nothing else to be included. The
definition is complete in itself.
34. From the scheme of Section 14,
15 and 19 referred to above it is
clear that the Legislature felt
that before the juvenile is tried
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as an adult a very detailed study
must be done and the procedure laid
down has to be followed. Even if a
child commits a heinous crime, he
is not automatically to be tried as
an adult. This also clearly
indicates that the meaning of the
words 'heinous offence' cannot be
expanded by removing the word
'minimum' from the definition.
35. Though we are of the view that
the word 'minimum' cannot be
treated as surplusage, yet we are
duty bound to decide as to how the
children who have committed an
offence falling within the 4th
category should be dealt with. We
are conscious of the views
expressed by us above that this
Court cannot legislate. However, if
we do not deal with this issue
there would be no guidance to the
Juvenile Justice Boards to deal
with children who have committed
such offences which definitely are
serious, or may be more than
serious offences, even if they are
not heinous offences. Since two
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views are possible we would prefer
to take a view which is in favour
of children and, in our opinion,
the Legislature should take the
call in this matter, but till it
does so, in exercise of powers
conferred under Article 142 of the
Constitution, we direct that from
the date when the Act of 2015 came
into force, all children who have
committed offences falling in the
4th category shall be dealt with in
the same manner as children who
have committed 'serious offences'."
30. The children are treated as an adult
offenders because of offence category. Thus, the
provisions of the section invoked, would also
require consideration during the course of
preliminary assessment alongwith, the record and
previous history of the child in the present
jurisdiction or other jurisdiction including:
(i) the number and nature of the previous
cases of the child with the Board;
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(ii) The number and nature of prior period of
probation;
(iii) the number and nature of prior
commitments to child correctional
centers;
(iv) the number and nature of previous
residential and community - based
treatments;
(v) whether previous adjudications and
commitments were for delinquent acts that
involved the infliction of serious bodily
injury, and;
(vi) whether the alleged offense is part of a
repetitive pattern of similar adjudicated
offenses;
(vii) Whether the juvenile has previously
absconded from the legal custody of a
juvenile correctional entity in this or
any other jurisdiction;
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(viii) The degree of intellectual disability or
mental illness;
(ix) The juvenile's school record and
education;
(x) The juvenile's mental and emotional
maturity; and
(xi) The juvenile's physical condition and
physical maturity.
30.1 Suggestive questions proposed to be
covered in the report are noted at Annexure-I of
the Guidelines of NCPCR - April 2023, which are
over and above the points noted in the
guidelines. The suggestive questions are
reproduced herein below to given a full
understanding of the level to which the
preliminary assessment exercise has to be carried
forward:
i. whether the child has himself been a
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victim of any offence in the
past;
ii. if yes, what is the nature of
offence;
iii. whether the child have ever been put
to extreme mental trauma;
iv. whom does a child sees as their role
models;
v. what are child's ambitions in life;
vi. whether the child is associated with
any group formed by adults;
vii. whether the child is the control of
adults, or group of adults, and if
so, the Board shall consider the
aspect whether independent of the
influence of the adults, the child
may not have committed the offence;
viii. whether the child suffers from any
kind of disability as listed in
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Rights of Persons with Disabilities
Act, 2016; specify;
ix. whether the child is prone to taking
drugs or alcohol;
x. whether the child is under the
influence of peer groups or
associates with those who present
risk of harm e.g. sexual offenders,
drug peddlers etc. or criminals;
xi. whether the child has suicidal
tendencies or of harming own self;
xii. whether the child has been recruited
or used or forced by any non-State,
self-styled militant group or outfit
declared as such by the Central or
the State Government and whether
such child was in a position to
desist influences and pressures
excreted by such actors in the given
circumstances of his or her life
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etc.
31. Upon finding of probable cause, pursuant
to a preliminary assessment, to the reasons noted
in the order, the order of the trial as an adult
would be passed under section 18(3) of the J.J.
Act, and if the Board does not find probable
cause to believe that juvenile has committed such
heinous offence, then, as noted in section 18(1),
after the preliminary assessment, may continue to
inquiry of heinous offence, and the matter would
be disposed of by the Board.
31.1 As was observed in Barun Chandra Thakur
(supra), there were no guidelines for the Board
to justify the orders of preliminary assessment.
By and large the criteria adopted in the judgment
of Kent V. United States, 383 U.S. 541 (1966),
decided on 21.03.1966, were referred. The facts
were, Kent, a 16 year old was arrested for
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various charges. For about 24 hours he was kept
in police custody. He was questioned and he
admitted of some offences, then, Kent was
subjected to "exclusive jurisdiction" of the
District Juvenile Court, which could "only waive
jurisdiction after a "full investigation" of
question of waiver." In Kent's case the Juvenile
Court waived its jurisdiction without a hearing
or allowing Kent's counsel to access important
Court Social Service files. The U.S. District
Court dismissed Kent's claim and tried him as an
adult, and later he was convicted as an adult.
When Kent's challenge, eventually reached the
U.S. Supreme Court, thereafter laid down certain
factors for the courts to consider before
transferring the juvenile to the criminal Court.
According to Kent's judgment, the Judges must
assess these below mentioned factors thoroughly
before waiving a juvenile to criminal court.
1. The seriousness of the alleged
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offense to the community and whether
protecting the community requires
waiver;
2. Whether the alleged offense was
committed in an aggressive, violent,
premediated, or wille manner;
3. Whether the alleged offense was
against persons or against property,
greater weight being given to
offenses against persons, especially
if personal injury resulted;
4. The prosecutive merit, i.e., whether
there is evidence upon which a
[court] may be expected to return an
indictment;
5. The desirability of trial and
disposition of the entire offense in
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one court when the juvenile's
associates in the alleged offense
are adults;
6. The sophistication and maturity of
the juvenile by consideration of his
home, environmental situation,
emotional attitude, and pattern of
living;
7. The record and previous history of
the juvenile, including previous
contacts with law enforcement
agencies, juvenile courts and other
jurisdictions, prior periods of
probation, or prior commitments to
juvenile institutions;
8. The prospects for adequate
protection of the public and the
likelihood of reasonable
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rehabilitation of the juvenile (if
he found to have committed the
alleged offense) by the use of
procedures, services, and facilities
currently available to the juvenile
court.
32. Here, in the impugned order, the
Children's Court has placed reliance on the
reports placed before the J.J. Board. The
Children's Court while dealing in appeal under
section 101(2) of the J.J. Act, can independently
deal with the case of child by taking assistance
of experienced psychologists and medical
specialists other than those, whose assistance,
has been obtained by the Board in passing the
order under the section 15 of the J.J. Act. The
appeal provision makes, thus, clear that the
Sessions Judge are not bound by the report of the
psychologist or medical specialists obtained by
the Board and can independently call for
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assistance of experienced psychologists and
medical specialists, to deal with the order
passed under Section 15 of preliminary assessment
by the Board.
32.1 Section 101(2) requires reproduction
here for clarity of the understanding of the
provision:
"(2) An appeal shall lie against
an order of the Board passed
after making the preliminary
assessment into a heinous
offence under section 15 of the
Act, before the Court of
Sessions and the Court may,
while deciding the appeal, take
the assistance of experienced
psychologists and medical
specialists other than those
whose assistance has been
obtained by the Board in passing
the order under the said
section."
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32.2 In the present matter, the learned
Children's Court in appeal has relied upon the
observation made by the Juvenile Justice Board
and has also placed reliance on the evidence of
clinical psychologist in context with the conduct
of the child, in relation to the offence, and has
also relied upon a certificate from the police
record of Medical Superintendent, H.S.G.
Hospital, Vadodara.
32.3 The very fact that the Sessions Court
can independently take the assistance in deciding
the appeal, clarifies that the Court of sessions
can call for further assistance at the appellate
stage. Section 19 of the J.J. Act envisages, the
power to the Children's Court, that even without
any challenge to the order of the Board of the
preliminary assessment under section 15 of the
J.J. Act, the Children's Court has to decide,
whether there is a need for trial of the child as
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an adult and pass appropriate orders as per the
provisions of the Code of Criminal Procedure and
pass appropriate orders after trial subject to
the provisions of section 19 and section 21 of
the J.J. Act, considering the special needs of
the child, the tenets of fair trial and
maintaining a child friendly atmosphere. It is
not only the J.J. Board, who is to provide the
child friendly atmosphere, but the duty is also
cast upon the Children's Court to consider the
special needs of the child, with a further
discretion under section 19(1(ii) that if the
Children's Court come to the conclusion that
there is no need for the child to be tried as an
adult, then the Children's Court would conduct an
inquiry as a Board and pass appropriate orders in
accordance with the provisions of section 18 of
the J.J. Act.
32.4 Section 21 of the J.J. Act, clarifies
that no child in conflict with law shall be
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sentenced to death or for life imprisonment
without the possibility of release, for any such
offence, either under the provisions of the J.J.
Act or under the provisions of the Indian Penal
Code or any other law for the time being in
force.
32.5 Rule 13 of the Model Rules, 2016 deals
with the procedures in relation to the Children's
Court and Monitoring Authorities, which makes it
clear that upon receipt of preliminary assessment
from the Board the Children's Court may decide
whether there is need for trial of the child as
an adult or as a child and pass appropriate
orders. Sub-rule (2) of Rule 13 amplifies that
where an appeal has been filed under sub-section
(1) of section 101 of the Act against the order
of the Board declaring the age of the child, the
Children's Court shall first decide the appeal.
32.6 Sub-rule (4) of Rule 13 clarifies that,
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when the appeal under sub-section (2) of section
101 of the Act is disposed of by the Children's
Court on a finding that there is no need for
trial of the child as an adult, it shall dispose
of the same as per section 19 of the Act and
Rules.
32.7 Sub-rule (5) of rule 13 of the Model
Rules, 2016 adds that when the appeal under sub-
section (2) of section 101 of the Act is disposed
of by the Children's Court on a finding that the
child should be tried as an adult, the children's
Court shall call for the file of the case from
the Board and dispose of the matter as per the
provisions of the Act and Rules.
32.8 The children's Court, as specified in
sub-rule (6) of Rule 13 shall record its reasons
while arriving at a conclusion whether the child
is to be treated as an adult or as a child. As
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per sub-rule (8) of Rule 13 of the Model Rules,
2016, where the Children's Court decides that
there is a need for trial of the child as an
adult, it shall follow the procedure prescribed
by the Code of Criminal Procedure, 1973 of trial
by sessions and by maintaining a child friendly
atmosphere; the final order passed by the
Children's Court shall necessarily include an
individual care plan for the child as per Form-7
prepared by a Probation Officer or Child Welfare
Officer or recognized voluntary organisation on
the basis of interaction with the child and his
family, where possible.
32.9 Rule 14 of the Model Rules, 2016 notes
about the destruction of records. The records of
conviction in respect of a child in conflict with
law shall be kept in safe custody till the expiry
of the period of appeal or for a period of seven
years, and no longer, and thereafter be destroyed
by the Person-in-charge or Board or Children's
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Court, as the case may be. The said Rule is with
the proviso, which clarifies that in case of a
heinous offence, the child is found to be in
conflict with law under clause (i) of sub-section
(1) of section 19 of the Act, the relevant
records of conviction of such child shall be
retained by the Children's Court.
33. In view of the above observations in the
judgment of Barun Chandra Thakur(supra) with the
Guidelines of the National Commission for
Protection of Child Rights (NCPCR) along with
Model Rules, 2016, the J.J. Board and the
Children's Court would be able to get necessary
assistance in conducting the preliminary
assessment to decide the necessity of sending the
trial of the child in conflict with law to the
Children's Court.
34. To the reasons given hereinabove, the
impugned orders passed by the J.J. Board and the
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Children's Court are not judicious, hence, the
preliminary assessment of the present child in
conflict with law requires assessment afresh by
J.J. Board, as contemplated under section 15 of
the J.J. Act, as this Court under revisional
jurisdiction of section 102 would have no power
to carry out the preliminary assessment.
35. In the result, the revision application
is allowed in above terms. The order dated
08.07.2023 passed in Criminal Appeal No.263 of
2023 by the 3rd Additional Sessions Judge &
Special (Children Court), Vadodara and order
dated 12.01.2023 passed by the Juvenile Justice
Board at Vadodara are quashed and set aside. Rule
is made absolute to the aforesaid extent.
(GITA GOPI,J)
Pankaj
