Madhya Pradesh High Court
Ajeet Gurjar vs The State Of Madhya Pradesh on 26 May, 2025
Author: Anand Pathak
Bench: Anand Pathak
1 M.P. No.7211/2023
HIGH COURT OF MADHYA PRADESH BENCH AT
GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
MISCELLANEOUS PETITION No.7211/2023
AJEET GURJAR
Vs.
THE STATE OF MADHYA PRADESH
Shri Sankalp Sharma and Shri Sushil Rathore - Advocates for the
petitioner.
Shri Vijay Sundaram - Government Advocate for the respondent.
ORDER
(Passed on 26th day of May, 2025)
1. This Miscellaneous Petition under Article 227 of Constitution
of India is filed being crestfallen by the order dated 20/11/2023
passed by XIth Additional Sessions Judge/ Special Judge, POCSO
Act, District-Gwalior (M.P.) whereby application under Section 19 of
the Juvenile Justice (Care and Protection of Children) Act, 2015
preferred at the instance of Child in Conflict with Law (hereinafter
referred as petitioner) was dismissed.
2. Precisely stated facts of the case are that on 14/02/2016, an FIR
was registered vide Crime No.95/2016 against the accused including
present petitioner under Sections 302, 307, 147, 148, 149, 395 and
397 of IPC and Section 11/13 of MPDVPK Act, 1981 and Section 25
and 27 of the Arms Act,1959. Since at the time of incident,
petitioner was juvenile therefore, as per Section 2(13) of the Juvenile
Justice (Care and Protection of Children) Act, 2015 (hereinafter
referred as "J.J. Act"), petitioner proceeded under the J.J. Act.
Charge-sheet was filed on 12/09/2016. The Juvenile Justice Board
undertaking preliminary assessment purportedly under Section 15 of
the J.J. Act, transferred the case to the Children's Court vide order
dated 12/09/2016 to proceed with the trial treating the petitioner as
an adult. Before Children's Court, (hereinafter referred as "trial
Court") an application was filed by the petitioner seeking compliance
of sub-section (1) of Section 19 r/w Section 6 and 15 of the J.J. Act,
but the trial Court rejected the said application and decided to
proceed with the trial as an adult.
3. Being crestfallen by the same, petitioner preferred
Miscellaneous Criminal Case under Section 482 of Cr.P.C., but met
the same fate. Being aggrieved by the orders of the trial Court as
well as High Court, petitioner approached Hon'ble Supreme Court in
SLP (Cri) No.4493/2023 (Criminal Appeal No.3023/2023). The
Supreme Court allowed the appeal vide order dated 26 th September,
2023 and directed the trial Court to make necessary compliance of
sub-section (1) of Section 19 of the J.J. Act. Thereafter, petitioner
filed an application under Section 19 of the J.J. Act, but the trial
Court vide order dated 20/11/2023 rejected the application and
proceeded with the trial treating the petitioner as an adult. Therefore,
petitioner is before this Court. He challenged order dated
20/11/2023.
4. It is the submission of learned counsel for the petitioner that
the Court below erred in passing the impugned order and ignored the
Scheme of the J.J. Act and the scope of exercise of power under
Section 19 of the J.J. Act. "Inquiry" as per Section 19 of the J.J. Act
was required to be held rather than trial being held by the Children's
Court.
5. It is further submitted that while exercising powers under
Section 19 of J.J. Act, learned trial Court has to rely upon the
preliminary assessment and before doing so, the trial Court has to
ascertain propriety and illegality of conduction of preliminary
assessment of the petitioner undertaken by J.J. Board. Subsequently,
it can proceed with the preliminary assessment of the petitioner.
6. According to learned counsel, in the present case, mechanical
compliance of mandatory statutory provision is being carried out.
According to him, Social Investigation Report does not reveal much
information about the relationship of petitioner with his family
members which otherwise would have helped in assessment of his
mental and psychological balance. There was no information about
the CICL's emotional and psychological quotient, which could have
reflected understanding of his acts and their consequences. While
relying upon the judgment of the Hon'ble Supreme Court in the case
of Barun Chandra Thakur Vs. Master Bholu and Anr., AIR
Online 2022 SC 1006, it is further submitted that compliance of
Section 15 of the J.J. Act is mandatory and is to be carried out
keeping the Interest of the Child.
7. Learned counsel for the petitioner also relied upon the plethora
of judgments including Hon'ble Apex Court as well as other High
Courts in the case of Thirumoorthy Vs. State Represented by the
Inspector of Police, AIR Online 2024 SC 274, Child in Conflict
with Law through His Mother Vs. State of Karnataka and Anr.,
AIR 2024 SC 3191, Mumtaz Ahmed Nasir Khan and Ors. Vs.
The State of Maharashtra and Ors. Passed in Criminal Appeal
No.1153 of 2018 (2020 ALLMR (Cri) 974) and Smt. Durga
Bherulal Meena Vs. State of Rajasthan 2019 CRI L.J. 2720.
8. Per contra, learned counsel for respondent opposed the prayer
and submits that the trial Court rightly passed the impugned order on
the basis of preliminary assessment looking to the fact that Child in
Conflict with Law (petitioner) crossed the age of 25 years. It is
further submitted that preliminary assessment is properly carried out
by the Juvenile Justice Board. Help of Psycho-Analyst/ Psychologist
from the Mental Hospital, Gwalior was taken and they are the best
available resources in Gwalior City. Therefore, it is not a case of
non-compliance of the mandatory provisions of Section 19 of the J.J.
Act. Infact, all mandatory provisions of J.J. Act have been complied
with. Thus, he prayed for dismissal of the writ petition.
9. Heard the learned counsel for the parties at length and perused
the documents appended thereto.
10. This is a case where petitioner (Child in Conflict with Law/
CICL) is taking exception to the order dated 20/11/2023 passed by
trial Court i.e. Sessions Judge/ Special Judge, POCSO Act, District
Gwalior, whereby application under Section 19 of the J.J. Act has
been rejected. The trial Court conducted trial treating petitioner as an
adult. It is also worth noting as informed by counsel for the petitioner
that the evidence has been recorded and matter is posted for final
arguments.
11. Learned counsel for the petitioner extensively referred the
scope of Section 15 of the J.J. Act and preliminary assessment
carried out by the J.J. Board. According to him, preliminary
assessment has not been carried out in accordance with law.
Therefore, discussion is to be started from Section 15 of the J.J. Act
itself.
12. For ready reference, Section 15 of the J.J. Act, reiterated as
under:-
" 15. Preliminary assessment into heinous
offence by Board :-
(1) In case of a heinous offence alleged to have been
committed by a child, who has completed or is above
the age of sixteen years, the Board shall conduct a
preliminary assessment with regard to his mental and
physical capacity to commit such offence, ability to
understand the consequences of the offence and the
circumstances in which he allegedly committed the
offence, and may pass an order in accordance with
the provisions of sub-section (3) of section 18:
Provided that for such an assessment, the Board
may take the assistance of experienced psychologists
or psycho-social workers or other experts.
Explanation.--For the purposes of this section, it
is clarified that preliminary assessment is not a trial,
but is to assess the capacity of such child to commit
and understand the consequences of the alleged
offence.
(2) Where the Board is satisfied on preliminary
assessment that the matter should be disposed of by
the Board, then the Board shall follow the procedure,
as far as may be, for trial in summons case under the
Code of Criminal Procedure, 1973 (2 of 1974):
Provided that the order of the Board to dispose of
the matter shall be appealable under sub-section (2)
of section 101:
Provided further that the assessment under this
section shall be completed within the period specified
in section 14.
13. The Apex Court in the case of Barun Chandra Thakur
(supra) discussed in detail; the scope of Section 15 and the manner
in which preliminary assessment is to be carried out by J.J. Board.
The Apex Court in penultimate para 87 of the said judgment raised
expectation from Central Government and National Commission for
protection of Child Rights (NCPCR) and SCPCR to consider issuing
guidelines or directions in this regard. For ready reference para 87 is
reproduced as under:-
"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 Prortection 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."
14. In pursuance thereof, the National Commission for Protection
of Child Rights (NCPCR) framed guidelines in December, 2019 for
conducting preliminary assessment under Section 15 of the J.J. Act.
The National Commission for Protection of Child Rights has
prepared detailed guidelines in this regard.
15. Chapter 2 of the Guidelines deals in respect of Nature and
Purpose of Preliminary Assessment. The same is reproduced as
under:-
"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 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 JJ 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.
2.3 Determining the age of child allegedly in
conflict of law- One of the most important steps for
Juvenile Justice Board to proceed with preliminary
assessment regarding children alleged of heinous
offences is to determine the age of the child. For this,
under section 94(2) Aim of the preliminary
assessment is not to seek confession from the child
nor to reach at a conclusion of any sort. 5 of the JJ
Act, the Board shall undertake the process of age
determination, by seeking evidence by obtainingi)
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 medical age determination
test conducted on the orders of the Board. Provided
such age determination test conducted on the order
of the Board shall be completed within fifteen days
from the date of such order.
2.4 Determinants of a preliminary assessment- The
preliminary assessment has to be carried out in
terms of the following four determinants.
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 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.
c. the circumstances in which the child
allegedly committed the offence Psychosocial
vulnerabilities, including life events and
mental health problems 6 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
(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
labeling 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).
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 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.
16. In Chapter 3 of the Guidelines, Role of Juvenile Justice
Board and other Experts have been discussed, which reads as
under:-
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. The
Juvenile Justice Board shall supply the copy of the
order to the child, child's family and the counsel.
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 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.
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.
3.6 Remuneration to be paid to the Experts- In
case the JJB takes the assistance of any external
expert, the remuneration of such expert must be
paid by the District Child Protection Unit
(DCPU) as per the standardized rates set by the
SCPS.
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 assist the child as per
the J.J. Act and its Rules. 8
3.8 Training of the experts whose assistance is
sought by the JJB for conducting the Preliminary
assessment- The experts who have the required
qualification to assist the JJB in conducting the
preliminary assessment must undergo a training
with respect to Section 15 of the Act and the
training must be provided on a regular basis by
the National Institute of Public Cooperation and
Child Development or the respective State Child
Protection Society.
3.9 Role of JJB if the child is also child in need of
care and protection- As per Rule 9(3) - Where the
child produced before the Board is covered under
section 78 and section 83 of the Act, including a
child who has surrendered, the Board may, after
due inquiry and being satisfied of the
circumstances of the child, transfer the child to
the Child Welfare Committee (CWC) as a child in
need of care and protection for necessary action,
and or pass appropriate directions for
rehabilitation, including orders for safe custody
and protection of the child and transfer to a fit
facility recognized for the purpose which shall
have the capacity to provide appropriate
protection, and consider transferring the child out
of the district or out of the State to another State
for the protection and safety of the child.
Moreover, Rule 10(1)(iii) also mentions that the
JJB may refer the child who has been produced
before it to the CWC where it appears to the
Board that the child is in need of care and
protection.
17. Similarly, Chapter 4 of the Guidelines deals in respect of
Completion of Preliminary Assessment. The same are reproduced
for ready reference as under:-
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 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].
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
to which such child is brought, shall, as
soon as possible after apprehending the
child, inform he 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
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/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 above.
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
includeAny confessional statement from SIR must
not be taken into consideration while conducting
preliminary assessment. 10
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,
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.
18. These guidelines are exhaustive in nature and are as per the
spirit echoed in the judgment of the Hon'ble Apex Court in the case
of Barun Chandra Thakur (supra). It takes all contours for
preliminary assessment into its ambit. However, at the same time,
one has to take note of the Health, Education, Infrastructure of
different parts of the country because mental health professionals are
still not available at every district or at least Tehsil level. However,
these guidelines as expected would pave the way of roping-in more
and more mental health professionals like Psychiatrist and Psycho
Analyst.
19. Since Section 101(2) of the J.J. Act contemplates
engagement of separate mental health professionals (Psychiatrist
and Psycho-Analyst) by the trial Court, whose assistance has
been taken by the JJ Board for purpose under Section 15 of the
JJ Act, therefore, sufficient pool of mental health professionals at
every District and Tehsil level is the need of hour.
20. Hopefully, Policy Makers, State Government and other
agencies involved in the matter of Juvenile Justice would look
into it and take appropriate call.
21. Similarly, NCPCR and SCPCR must also think how a
detail Guidelines/ Principles may be formulated for assessment
by Children's Court under Section 19 r/w Section 101 of J.J. Act.
22. In the present case, petitioner is aggrieved by the order dated
20/11/2023, which is being passed under Section 19 of the J.J. Act.
Section 19 deals in respect of powers of Children's Court. For
bringing clarity, the same is reproduced as under:-
"19. (1) After the receipt of preliminary
assessment from the Board under section 15, the
Children's Court may decide that--
(i) there is a need for trial of the child
as an adult as per the provisions of the
Code of Criminal Procedure, 1973 (2 of
1974) and pass appropriate orders after
trial subject to the provisions of this
section and section 21, considering the
special needs of the child, the tenets of
fair trial and maintaining a child friendly
atmosphere;
(ii) there is no need for trial of the
child as an adult and may conduct an
inquiry as a Board and pass appropriate
orders in accordance with the provisions
of section 18.
(2) The Childrens Court shall ensure that the
final order, with regard to a child in conflict with
law, shall include an individual care plan for the
rehabilitation of child, including follow up by the
probation officer or the District Child Protection
Unit or a social worker.
(3) The Childrens Court shall ensure that the
child who is found to be in conflict with law is
sent to a place of safety till he attains the age of
twenty-one years and thereafter, the person shall
be transferred to a jail:
Provided that the reformative services including
educational services, skill development,
alternative therapy such as counselling, behaviour
modification therapy, and psychiatric support
shall be provided to the child during the period of
his stay in the place of safety.
(4) The Childrens Court shall ensure that there
is a periodic follow up report every year by the
probation officer or the District Child Protection
Unit or a social worker, as required, to evaluate
the progress of the child in the place of safety and
to ensure that there is no ill-treatment to the child
in any form.
(5) The reports under sub-section (4) shall be
forwarded to the Children's Court for record and
follow up, as may be required.
23. Looking to the facts of the present case, it appears from the
record that psychological assessment of petitioner under Section 15
of the J.J. Act was carried out by a Committee constituted of Clinical
Psychologist, Psychiatric, Social Worker and Assistant Professor of
Mental Health working in Mental Health Hospital, Gwalior.
24. The Committee gave its report on 09/09/2016. Besides that,
the JJ Board also perused the Social Investigation Report and
considered the fact that criminal antecedents of the petitioner ( 07
past criminal cases) and thereafter came to conclusion about the fact
that petitioner/ Child in Conflict with Law is to be tried by the
Children's Court as an adult vide order dated on 12/09/2016.
25. So far as Section 19 is concerned, perusal of Section 19
indicates that Children's Court shall have to decide about the need
for trial of the child as an adult and may conduct an inquiry as a
Board and pass appropriate orders in accordance with the provision
of Section 18, subject to the condition as enumerated under Section
19(1) of J.J. Act.
26. The Supreme Court in other case of present petitioner namely
Ajeet Gurjar Vs. The State of Madhya Pradesh passed in
Criminal Appeal No.3023 of 2023 dated 26/09/2023 held that
Clause (i) of sub-section (1) of Section 19 of J.J. Act is very crucial
which indicates that though the word "may" have been used in the
opening part of sub-section (1) of Section 19, the same will have to
be read as "shall". Thus, it is mandatory for the Children's Court to
decide the need for trial of the child.
27. It is also worth reiteration that if the Children's Court comes to
the conclusion that there is no need for the trial of the child as an
adult, instead of sending back the matter to the Board, the trial Court
itself is empowered to conduct an inquiry and pass appropriate orders in
accordance with provisions of Section 18 of the J.J. Act. The trial of a
child as an adult before trial Court (Children's Court) and his trial as a
juvenile by the Juvenile Justice Board has different consequences
28. In a way, Section 19 of the J.J. Act gives another chance to the
child for reaffirmation of psychological assessment carried out by the
J.J. Board. Reasons are obvious. The J.J. Act proceed with the
principle that "CICL" who happens to be "Criminal" rather than
"Criminal" who happens to be "Young".
29. The whole thrust is on preliminary assessment of Section 15 of
the J.J. Act, but the language and legislative intent of Section 19 of the J.J.
Act indicates that even the Children's Court are required to decide the
need for trial of the Child as an adult therefore, further assessment
can also be carried out.
30. As such, apparently, no Guidelines/ Principles are formulated
yet for assessment under Section 19 of J.J. Act therefore, Children's
Court at present has to rely upon the personal interaction with the CICL
and has to assess his mental status and try to reach to a objective
conclusion whether CICL deserves to be tried as an adult or
otherwise. However, proceeding in a manner as if he is an accused
(like accused statement purportedly under Section 313 Cr.P.C.) is
required to be avoided.
However, personal interaction by the Court may give an insight into
personality of the CICL.
31. Infact, Preliminary Assessment now becomes Secondary
Assessment (Hierarchically) by the Children's Court and if required,
Court may also avail the service of some other experienced
Psychologists and Medical Specialists other than those whose
assistance have been opted by the JJ Board for passing the order by
Children's Court/ Sessions Court. Taking service of other
professionals is provided in Section 101(2) of the J.J. Act.
32. Relevantly, Section 101 of the J.J. Act contemplates Appeals.
To bring clarity, Section 101 is reproduced as under:-
"101. Appeals :- (1) Subject to the provisions of
this Act, any person aggrieved by an order made
by the Committee or the Board under this Act may,
within thirty days from the date of such order,
prefer an appeal to the Children's Court, except
for decisions by the Committee related to Foster
Care and Sponsorship. After Care for which the
appeal shall lie with the District Magistrate.
Provided that the Court of Sessions, or the
District Magistrate, as the case may be, may
entertain the appeal after the expiry of the said
period of thirty days, if it is satisfied that the
appellant was prevented by sufficient cause from
filing the appeal in time and such appeal shall be
decided within a period of thirty days.
(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.
(3) No appeal shall lie from any order of acquittal
made by the Board in respect of a child alleged to
have committed an offence other than the heinous
offence by a child who has completed or is above
the age of sixteen years.
(4) No second appeal shall lie from any order of
the Court of Session, passed in appeal under this
section."
33. Perusal of sub-section 2 of Section 101 of the J.J. Act reveals
that Court of Sessions referred in the said sub-section is infact
Children's Court, which has to decide the need for trial of the child as
an adult. In the present case, the appeal under Section 101(2) of the
J.J. Act against the order of J.J. Board passed (purportedly under
Section 15 of the J.J. Act is preferred). This sub-section further
reveals that the Court of Sessions/ Children's Act may take assistance
of Experienced Psychologist and Medical Specialist, but they should
be other than whose assistance have already been taken by the Board
in passing the order under the said Section.
34. Word "may" figures in Section 101 (2) of the J.J. Act, which
reflects the legislative intent that the Court of Sessions/ Children's
Court are at discretion and may take assistance of experienced
psychologists and medical specialists if feel so, other than those
whose assistance has been obtained by the JJ Board in passing the
order under the said section.
35. Apparently, word "may" appears for the reason that in some
distant places/ small districts, many such mental health experts,
medical specialists might not be available therefore, some discretion
is being given to the Children's Court. However, the Apex Court in
another case of present petitioner Ajeet Gurjar (supra) while
interpreting Section 19 of the J.J. Act observed that the word "may"
appears in sub-section (1) of Section 19 of the J.J. Act is to be read
as "shall".
36. Section 19 of the J.J. Act if seen in juxtaposition to Section
101(2) of the J.J. Act then it leads to an inference prima facie that the
word "may" figures in Section 101(2) of the J.J. Act is also required
to be interpreted as "shall". But this attempt may lead to the
clarification of judgment of Hon'ble Apex Court which this Court
cannot do. Therefore, considering the legislative intent and verdict of
the Apex Court in the case of Ajeet Gurjar (supra) position
emerges like this:-
(a) That after preliminary assessment is undertaken by the J.J.
Board under Section 15 of the J.J. Act and said assessment is
received by the Children's Court then the said Court shall have to
decide whether there is a need for trial of a child as an adult or
whether there is no need for trial of a child as an adult and to
conduct an enquiry/ trial like a Board. Here it is mandatorily
bestowed upon the Children's Court to decide about the need for trial
as per Section 19 of the J.J. Act as mandated in Ajeet Gurjar
(supra).
(b) While deciding the appeal, the Children's Court "may" take
assistance of experienced Psychologists and Medical Specialists
provided that they are different then the ones who gave advise in
preliminary assessment under Section 15 of the J.J. Act.
37. Here some elbow room is available to the Court of Sessions/
Children's Court and if desires so, the Court may call some experts
as referred in Section 101(2) of the J.J. Act. Apparently, word
"may" figures in Section 101(2) because of the Health/ Educational/
Social resources available in the vicinity. Sometimes dearth of such
professionals may stranded the case at cross roads.
38. The Apex Court in the case of Barun Chandra Thakur (supra)
in para 79 mandates that the word "may" figures in Section 15(1) of
the Act operates as mandatory provisions.
39. One more important variable, which appears in present case
and which affects the assessment is that with the time CICL became
an adult (now he is 25 years old) because case is of 2016, when he
was around 17 years and 09 months of age whereas guidelines came
into existence in 2019. Therefore, in 2019, he was more than 20
years, therefore, he exceeds such age group where it would be
difficult for the Children's Court to assess his psychological/ mental
disposition because he is no more a child between the age group 16-
18 years. Therefore, for that purpose, the Children's Court shall have
to rely upon the preliminary assessment carried out earlier and the
personal assessment made by the Court after due interaction with the
child keeping in view the "General Principles" contained in Section
3 of the J.J. Act.
40. Here in the present case, petitioner/ CICL is now 25 years of
age or perhaps more than that. Children's Court taken into account
Section 19(1) of the J.J. Act and Section 13(5)(6) of the Juvenile
Justice (Care and Protection of Children) Model rules, 2016 and
considering the over all fact situation of the case and observing the
CICL, came to the conclusion that trial is to be conducted in
Children's Court only. Court considered the report dated 09/09/2016
prepared by the Committee after examination of CICL. The Court
also considered the Social Investigation Report of the petitioner and
the fact that father of the petitioner was working in Police
Department therefore, CICL knew the consequences of violation of
law. Trial Court also noted down the previous criminal record of
petitioner (07 criminal cases, out of which 02 cases under Section
307 and 05 cases for minor offences). A possible exhaustive
assessment is made out in given set of facts.
41. Considering all these aspect, the Children's Court came to the
conclusion that petitioner (CICL) is to be treated as an adult and the
trial shall be proceeded accordingly.
42. In one of the judgments relied upon by the petitioner in the
case of Thirumoorthy (supra), on the basis of age of accused being
23 years and in absence of any realistic possibility of finding out
mental or physical capacity to commit offence or to assess his ability
to understand its consequences and circumstances, conviction of
petitioner therein was set aside, but here in the present case, facts are
different.
43. Incidentally, in the said judgment of Thirumoorthy (supra),
the Apex Court taken care of the earlier judgment passed in the case
of present petitioner Ajeet Singh Gurjar Vs. State of Madhya
Pradesh in para 46, and the Apex Court remitted back the case. In
the case of Thirumoorthy (supra), accused was never presented
before the J.J. Board as per the mandate of J.J. Act and charge-sheet
was filed directly before the Sessions Court (Children's Court)
therefore, facts are distinguishable vis a vis present case.
44. Looking to the attending facts and circumstances of the case, it
appears that the Children's Court did not cause any illegality in
passing the impugned order dated 20/11/2023. No case for
interference is made out. Order dated 20/11/2023 passed by XIth
Additional Sessions Judge/ Special Judge, POCSO Act, District-
Gwalior (M.P.) is hereby affirmed. Trial Court may proceed in the
case as per law.
45. Looking to the discussion made above, the trial Court is
directed to personally interact with the petitioner and try to
objectively assess his personality so that essential requirement of
assessment under Section 19 of the J.J. Act can be fulfilled.
Although, looking to the age of the petitioner, it is too late in a day,
however, looking to the mandate of the Apex Court, the trial Court
has to comply this valuable attribute of the Juvenile Justice Act. This
steps in peculiar facts and circumstances of the case would serve
substantial justice. Thereafter, Children's Court may proceed as per
law.
46. The Miscellaneous Petition stands dismissed. All the
applications/ interim orders are set aside/ disposed of.
47. A copy of this order be sent to the Principal Secretary, Women
and Child Development Department and Principal Secretary, Social
Justice, Government of M.P., for information and compliance.
(ANAND PATHAK)
JUDGE
vc
VARSHA Digitally signed by VARSHA CHATURVEDI
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH COURT
OF MADHYA PRADESH BENCH GWALIOR,
CHATURVE
2.5.4.20=df59fbf0f5c7485addc8affe3edf20e67d
11d7f91045d81139f6792fbd4ae91f,
postalCode=474001, st=Madhya Pradesh,
serialNumber=652FE82BC5CAE8153A1E34C3B8
DI
EFC095F5A0D144B089415F31342D1C8E2D313
9, cn=VARSHA CHATURVEDI
Date: 2025.05.26 15:56:58 +05'30'
