Gujarat High Court: In a criminal revision application under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’) against the Order of Appellate Court, Vadodara and Juvenile Justice Board, Vadodara (‘JJ Board’), whereby it was declared that the juvenile delinquent in the present matter should be tried as an adult in the Children’s Court, Gita Gopi, J. allowed the revision application and set aside the impugned orders for not finding judicious reasons and explanation in the preliminary assessment of the juvenile delinquent for trying him as an adult.
A First Information Report (‘FIR’) was registered against the juvenile delinquent and other major accused persons, alleging that they entrance in the complainant’s house and committed the offence of dacoity of 41 Tolas Gold ornaments worth Rs.16,40,000/-, 200 grams sliver valued at Rs.10,000/-, cash amount of Rs. 40,000/- in total and threatened the complainant. Upon completion of investigation, chargesheet was filed for offence punishable under Sections 452, 394, 395, 397, 120-B read with section 114 of the Penal Code, 1860 (‘IPC’) and Section 25(1) of the Arms Act, 1959, the JJ Board ordered that Juvenile delinquent should be tried as an adult. The Appellate Court affirmed the JJ Board’s order and observed that the juvenile delinquent was physically and mentally fit and knew the consequences of committing a crime.
Analysis and Decision
The Court relied on Barun Chandra Thakur v. Bholu, 2022 SCC OnLine SC 870, wherein the Supreme Court dealt with the aspect of child psychology and thus stresses on need to conduct a meticulous psychological evaluation where child in conflict with law is treated differently than adult in conflict with law. The Supreme Court had also expressed the need to formulate guidelines to assist the JJ Board while making preliminary assessment under Section 15 of the JJ Act.
The Court noted that the expression ‘preliminary assessment into heinous offences by the Board’ under Section 15 of the JJ Act, imposes a duty upon the Board to pass an order, to consider, whether there is a need for a trial of the said child in conflict with law, as an adult. The Court also said that one of the most crucial determinants of the preliminary assessment mandated by Section 15 of the JJ Act is the assessment of ‘adolescent mental capacity’ and ‘ability to understand the consequences’ of the offence committed by the child in conflict with law. Further, the Court said that the preliminary assessment under Section 15 of the JJ Act is not a simple routine task, since it decides the fate of the child in conflict with the law. Therefore, the Court said that the JJ Board and the appellate Court has to conduct the preliminary assessment in a very meticulous way with the psychological evaluation taking the assistance of experienced psychologist and medical specialist.
The Court noted that the NCPCR laid down guidelines prescribing the key procedure for conducting the preliminary assessment and said that when the child in conflict with law is brought before the JJ Board, the most important step is to determine the age of the child. Further, the Court noted the following four determinants that the guidelines deal with to conduct the preliminary assessment:
physical capacity of the child to commit alleged offence;
mental capacity of the child to commit alleged offence;
the circumstances in which the child allegedly committed the offence; and
the ability to understand the consequences of the offence.
The Court perused the clinical psychologist report of the juvenile delinquent, wherein it was observed that the mental capacity of juvenile delinquent from his birth was inconsistent with development and education qualification and that the juvenile delinquent could relate to the circumstances and the consequences of the offence, and during the interaction, the child had accepted his offence and had repented for the same, he was aware of all the circumstances and there were no symptoms of mental illness and was matured enough.
On perusing the copy of the chargesheet, the Court said that the juvenile delinquent was made to stand outside the complainant’s house gate and another accused had given him Rs.200 to go back home and that the bounties of the theft were recovered at the instance of another accused and not the juvenile delinquent. The Court also noted that the complainant’s version of the story became doubtful as the ornaments recovered from the accused persons were not real gold and silver as stated by the complainant in the FIR.
The Court noted that in impugned order, the Appellate Court had relied on the reports placed before the JJ Board. The Court said that while dealing with appeal under Section 101(2) of the JJ Act the Children’s Court/ appellate Court, can independently deal with the child’s case by taking assistance of experienced psychologists and medical specialists other than those, whose assistance, was obtained by the JJ Board while passing order under Section 15 of the JJ Act. The Court also discussed Section 19 of the JJ Act which envisages the power of Children’s Court, to decide whether there is any need for trial of the child as an adult and pass appropriate orders as per the provisions of the Code of Criminal Procedure, 1973 and pass appropriate orders considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere, even when no challenge was raised to the JJ Board’s order under Section 15 of the JJ Act.
Further, the Court noted that the NCPCR guidelines also specify that while considering other information for preliminary assessment, the confessional statement of the child from Social Investigation Report must not be considered. In the matter at hand, the Court noted that the appellate Court had relied on the juvenile delinquent’s confessional statement, which is against the principles to be followed in the administration of the JJ Act and against the principle of presumption of innocence, as expressed in Rule 10A(3) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (‘Model Rules’). The Court also noted that police personnel accompanied the juvenile delinquent when the psychologist assessed him and hence, the Court said that the juvenile delinquent’s confession was on the basis of fear and threat of the police. Hence, the Court refused to accept the reliance on the juvenile delinquent’s confessional statement.
The Court also stressed that the NCPCR guidelines refers to Rule 10A(4) of the Model Rule, where Rule 10A(4) clearly lays down that the JJ Board shall assign reasons if it passes an order that there is a need of trial of the said child as an adult after preliminary assessment and the copy of the order shall be provided to the child forthwith, however, the Court said that both the impugned orders lacked the sufficient reasons for ordering the trial of the juvenile delinquent as an adult in the Children’s Court.
The Court also explained that the facts of the case must be dealt with to understand the circumstances in which the child allegedly committed the offence and not merely the immediate circumstances of the offence itself, but also the other circumstances which led to the immediate circumstances and finally consider the ability to understand the consequence of the alleged offence.
Therefore, the Court concluded that in the present case, the appellate Court had referred to the complaint of the matter, however, had failed to enter into the details to gather the exact role of the juvenile delinquent in committing the alleged offence. The Court said that the impugned order of the JJ Board and the appellate Court were not judicious, hence, set aside. The Court also directed the JJ Board to conduct afresh preliminary assessment of the juvenile delinquent.
[Child In Conflict with Law v. State of Gujarat, 2023 SCC OnLine Guj 3119, Decided on 15-09-2023]
*Deeksha Dabas, Editorial Assistant has reported this brief.