Delinquency Child vs The State Of Madhya Pradesh
2023 Latest Caselaw 13445 MP

  IN THE HIGH COURT OF MADHYA PRADESH
              AT JABALPUR
                           BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                 ON THE 18th OF AUGUST, 2023

                CRIMINAL REVISION No. 2262 of 2023

BETWEEN:-
DELINQUENCY     CHILD
S/O RAKESH MISHRA,
AGED ABOUT 16 YEARS 9
MONTHS, OCCUPATION:
THROUGH     GUARDIAN
SMT. SIRMALA MISHRA,
W/O    SHRI   RAKESH
MISHRA, AGED ABOUT 41
YEARS,    OCCUPATION
HOUSE     WIFE,   R/O
VILLAGE KOTHI, THANA
BICHCHIYA,   DISTRICT
REWA (M.P.)
                                                          .....PETITIONER
(BY SHRI ARUN KUMAR SINGH - ADVOCATE)
AND
THE STATE OF MADHYA
PRADESH     THROUGH
POLICE       STATION
BICHCHIYA,   DISTRICT
REWA (M.P.)
                                                      .....RESPONDENT
(BY SHRI DEVENDRA KU. SHUKLA - PANEL LAWYER)

Reserved on         :     07.08.2023
Pronounced on       :     18.08.2023

      This revision having been heard and reserved for order, coming on for
pronouncement this day, the Court passed the following:
                                 ORDER

This criminal revision has been filed challenging the order dated 11.04.2023 passed by XIIth Additional Sessions Judge, Rewa in Criminal Appeal No.46/2023, whereby the finding given by the Principal Judge Juvenile Justice Board, Rewa in Criminal Case No.361/2022 regarding trial of the applicant as a major person was upheld.

2. Facts relevant for decision of this case are that applicant was alleged to have committed the murder of one Harishankar, who was his close relative. The age of applicant on the date of incident was 17 years. The matter came up before the juvenile Justice Board and an enquiry was held regarding the preliminary assessment as envisaged under Section 15 of Juvenile Justice (Care and Protection of Children) Act 2015 (hereinafter to be referred as 'Act'). In the said enquiry, the Juvenile Justice Board considered the opinion of psychologist and the Social Investigation Report conveniently referred hereinafter as 'SIR'. The Board also examined the applicant on the basis of questionnaire prepared and held that the applicant was physically and mentally mature enough to understand the nature of his act. Based on this assessment, the Board directed that the trial of applicant be conducted as an adult. The said order was challenged before XIIth Additional Sessions, Judge Rewa under Criminal Appeal No.46/2023. It appears from the record that on 17.03.2023, the Appellate Court ordered for constitution of a committee of experts of Department of Psychiatry of Medical College, Rewa. The Committee in its report dated 01.04.2023, gave the opinion that the applicant is of average intellect and in this clinical assessment, no active psychopathology was found. The learned Appellate Court examined the facts of the case and the reports received on record regarding mental ability of applicant and by the impugned order dismissed the appeal.

3. This revision petition has been preferred on the grounds that the Juvenile Justice Board was required to take the assistance of experienced psychologist and psychosocial experts while making the preliminary assessment regarding the mental and physical capacity of juvenile in conflict with law. The Board took recourse of an easy route by relying upon the report of a Probationary Officer, which is primarily taken into account while considering the bail application of the juvenile. Examination of juvenile in question - answer format was related to such questions, which could have been answered by a child, even below the age of 16 years. The methodology adopted for assessment of mental capacity of juvenile was not adequate and for that reason the impugned order passed by the Board itself is erroneous. The learned Appellate Court affirmed the order of Juvenile Justice Board by ignoring the material available on record, hence its order is also liable to be quashed. It is, therefore, prayed that the impugned order passed by XIIth Additional Sessions, Judge, Rewa in Criminal Appeal No.46/2023 and also the order passed on 22/02/2023 by Juvenile Justice Board in Criminal Case No.361/2022 be set aside and trial of applicant be directed to be held before the Juvenile Justice Board itself.

4. The learned counsel for State has opposed this revision petition claiming that the impugned order is based upon the reports of psychologist, psychiatrist and Probation Officer and there is nothing evident in the order, which shows that the assessment done by the Appellate Court was erroneous. It is, therefore, prayed that the revision petition should be dismissed.

5. Both the parties have been heard through their counsel and records of Juvenile Justice Board as well as of the Appellate Court have been perused carefully.

6. Record of Juvenile Justice Board reveals that on filing of charge- sheet, it ordered on 15.11.2022 that preliminary assessment regarding the mental and physical capacity of juvenile should be undertaken under Section 15 of Act and for this it ordered that a questionnaire be prepared. The case was posted for preliminary enquiry on 26.11.2022 and on said date psychologist Dr. Aradhana Gupta filed her report on the basis of examination of juvenile. The Probation Officer was asked to submit SIR on next hearing. The order-sheet of Board dated 24.12.2022 mentions the fact that juvenile was medically examined in primary assessment and order-sheet of 20.01.2023 mentions the fact that the juvenile was earlier examined on the basis of questionnaire. Both the parties were directed to submit their arguments and on 22.02.2023. The board relying upon the report of psychologist as well as SIR and also the answers given by the juvenile during his examination, gave the finding that the juvenile was physically and mentally mature to understand the consequences of his act, hence it directed that the juvenile be tried as an adult before the Children's Court.

7. The report of Clinical Psychologist, District Hospital Rewa dated 26.11.2022, on the basis of which the order was passed by Juvenile Justice Board in Criminal Case No.361/2022 is not available on the record of that criminal case and it was found enclosed with S.T.No.61/2023 pending before Special Judge under POCSO Act, 2012. The said report does not make any reference to the examination or assessment conducted by the said psychologist to assess the mental ability of juvenile and it merely says that juvenile is fully aware of relevant section and its consequences and he is mentally mature according to his age. The said report reflects that the psychologist was making assessment of mental ability of juvenile on the basis of his legal knowledge. No efforts were made by her to assess the child's ability to make social decisions and judgments.

8. Department of Child and Adolescent Psychiatry, Nimhans, Bengaluru has prepared guidance notes on primary assessment report for children in conflict with law, which have been cited in para 73 in the judgment of Hon'ble Apex Court in the case of Barun, Chandra Thakur vs. Master Bholu and another reported in 2022 SCC online SC 870. In these notes, it has been observed that in actual fact, everyone except someone with serious physical disability or with intellectual disability, has the mental and physical capacity to commit offence and just because someone has the physical and mental capacity to commit an offence does not mean that they will or that they have. For assessment of mental ability of juvenile to commit the alleged offence, certain parameters have been laid down and it may be observed with certainty that none of these parameters were even thought of by the psychologist when she prepared the report dated 26.11.2022 in the present case.

9. The record of Criminal Appeal No.46/2023 reveals that the Appellate Court constituted a Board of psychiatrist of SGMH Rewa to examine and assess the mental ability of juvenile in conflict with law. Report given by the Department of Psychiatry dated 01.04.2023 is perused. It reflects that the juvenile was kept in male psychiatry ward from 27.03.2023 to 31.03.2023 for clinical observation and it was reported after assessment that the juvenile was of average range of intelligence and no active psychopathology was found in this assessment.

10. The initiative taken by the Appellate Court shows that it was not satisfied with the report of psychologist dated 26.11.2022, hence the exercise of seeking the opinion of Board of Psychiatrist was undertaken. This initiative shows the concern of the learned Judge of Appellate Court and is appreciable, but it cannot be ignored that even the assessment undertaken at this level was not comprehensive under Section 15 (1) of the Act, which is reproduced hereunder for convenient perusal:-

"In case of a henius offence is alleged to have been committed by a child, who has completed or is above the age of 16 years, the board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequence of the offence and the circumstances in which he allegedly committed the offence............"

11. Thus, under the provision of Section 15(1) of the Act, it was mandatory to examine the circumstances in which the juvenile in conflict with law allegedly committed the office. Answers given by the juvenile to the questionnaire are very much relevant here. These answers give the reason why the offence was committed. The juvenile has disclosed that his father had attacked his mother with a tangi, on account of which his mother was seriously injured and a case was registered against his father. Juvenile was angry with the deceased because deceased was harbouring the father of juvenile and while screening him from legal process, he had even declared that he would not let anything happen to the father of juvenile. The FIR registered against the father of juvenile is placed on record, which reveals that the father of juvenile was a drug addict and an alcoholic, who assaulted the mother of juvenile on 27.05.2022 with tangi, and on account of that assault, she suffered head injury and injuries on other parts of her body as well, and it was the juvenile in conflict with law, who had intervened in the incident to save the life of his mother. In answer to question No.4, the juvenile has disclosed that he knows his responsibilities towards his family and that he wants to look- after his mother. These facts reveal that juvenile had suffered an emotional trauma in recent past and had witnessed a painful family dispute very closely, which resulted into cruelty and injuries to his mother.

12. Answers given by the juvenile disclose that he was unhappy with the deceased, who was the real brother of the father of juvenile, for the reason that deceased was instrumental in shielding the father of juvenile from the process of law, despite the fact that the father of juvenile was an irresponsible person, given to addiction and aggressive nature, who had caused serious injuries to the mother of juvenile in the presence of juvenile. These circumstances were relevant for assessment under the provision of Section 15 (1) of the Act but the orders passed by the Juvenile Justice Board and the Appellate Court make only a reference to this incident and have failed to appreciate and analyze these facts to give any finding thereupon.

13. The guidance notes prepared by Nimhans, Bengaluru (supra) suggest that while making assessment of mental capacity of juvenile, issues like emotional deregulations, neglect/poor supervision by family, experiences of abuse and trauma are some of the factors, which need to be assessed. As this assessment is completely missing in the impugned order passed by the Appellate Court as well as the assessment made by the Juvenile Justice Board regarding mental capacity of juvenile in conflict with law, therefore, both the orders are not found to be sustainable on facts and law.

14. It is relevant to note here that the social investigation report (SIR) was filed before the Juvenile Justice Board, in which it is mentioned that the property dispute was the reason behind this crime, but neither this report nor any other record discloses the details of property in dispute, what was the area of that property, where was it situated, who owned it and what was the nature of the dispute. This report also reveals that the juvenile is of aggressive nature while the evaluation done by the team of psychiatrist of SDMH, Rewa has observed in its report dated 01.04.2023 that juvenile was most of the time calm and his attitude was cooperative, his mood was generally good and rapport was easily established with him. These facts highlight the contradictions in the two assessment reports filed before the Courts below and neither of these two Courts has disclosed in its order that which of the two reports is credit-worthy and for what reasons. This gives all the more reasons to interfere in the impugned orders.

15. On the basis of above discussion, this revision petition is allowed and the impugned order passed by XIIth Additional Sessions Judge Rewa in Criminal Appeal No.46/2023 and order passed by Juvenile Justice Board Rewa in Criminal Case No.361/2022 on 22.02.2023 are hereby set aside. Accordingly, the trial of juvenile in conflict with law shall be held before the Principal Judge, Juvenile Justice Board, Rewa and not before the Children's Court, as an adult person.

16. Let the copy of this order be sent alongwith the records of Courts

below for necessary compliance.

(ANURADHA SHUKLA) JUDGE

rv

Digitally signed by NITESH PANDEY Date: 2023.08.22 18:48:19 +05'30' Adobe Reader version: 11.0.8