Gujarat High Court: While hearing a criminal revision application under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’) against the Appellate Court and Juvenile Justice Board’s (‘JJ Board’) Order, whereby the juvenile delinquent accused of 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, was ordered to be tried as an adult in the Children’s Court, Gita Gopi, J. allowed the appeal and discussed the National Commission for Protection of Child Rights (‘NCPCR’) guidelines for trying child in conflict with law as an adult.
Analysis and Discussion
Barun Chandra Thakur v. Bholu, 2022 SCC OnLine SC 870
The Court relied on the Barun Chandra (supra), wherein the Supreme Court while dealing with Section 15 of the JJ Act for preliminary assessment of child in conflict with law, observed that when 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 behavioural attributes like the ability to delay gratification, decision making, risk taking, impulsivity, judgement, etc. continues until the early 20s. The Court noted that in Barun Chandra (supra) the aspect of child psychology was discussed, and the stress was laid on the need to conduct a meticulous psychological evaluation where child in conflict with law is treated differently than adult in conflict with law and 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.
Preliminary assessment under Section 15 of the JJ Act
The Court noted that the expression ‘preliminary assessment into heinous offences by the Board’ used in Section 15 of the JJ Act, 2015, imposes a duty upon the Board to pass an order, to consider, whether there is a need for a trial of the said child as an adult. The Court 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.
The Court reiterated that the power to make preliminary assessment is vested in the JJ Board as well as the Children’s Court under Section 15 and 19 respectively and the Children’s Court, on its own also under Section 18(3) can examine, whether the child is to be tried as an adult or not. The Court explained that if 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 with the provisions of Section 18. The Court also said that the preliminary assessment under Section 15 is not a simple routine task, since preliminary assessment decides the fate of the child in conflict with the law. Therefore, the Court said that the JJ Board and the Children’s 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.
Further, the Court reiterated that the term ‘may’ in proviso to Section 15(1) of JJ Act would operate in a mandatory manner and the JJ Board would be obliged to take assistance of experienced psychologist or psychosocial worker or any other expert. The Court also referred to the view taken in Barun Chandra (supra), that the JJ Act and the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (‘Model Rules’), does not lay any guidelines or framework to facilitate the kind of analysis or assessment required to be made under Section 15 of the JJ Act and therefore, 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 (‘NCPCR’) and the State Commission for Protection of Child Rights to consider issuing guidelines or directions.
NCPCR guidelines for conducting preliminary assessment under Section 15 of the JJ Act
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 deals with to conduct the preliminary assessment:
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physical capacity of the child to commit alleged offence;
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mental capacity of the child to commit alleged offence;
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the circumstances in which the child allegedly committed the offence; and
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the ability to understand the consequences of the offence.
The Court also noted that the NCPCR guidelines under the heading of ‘Nature and Purpose of Preliminary Assessment’ categorised the offences as: (i) heinous offences, (ii) Petty offences and (iii) serious offences, on referring to the said categorization of the offences as defined under Section 2 of the JJ Act.
The Court explained that the preliminary assessment is not a trial, but it is conducted to assess the capacity of child in conflict with law to commit and understand the consequences of the alleged offence. The Court said that while making a preliminary assessment, the JJ Board and the Children’s Court has to specifically deal with all four determinants by assigning reasons to explain the capacity of such child to commit offence. The Court also said that the facts of the case must be dealt with to understand the circumstances in which the child allegedly committed the offence and the circumstances to be referred are not merely the immediate circumstances of the offence itself, but also other cumulative circumstances which 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. The Court also clarified that the preliminary assessment is not a trial but is an exercise to assess the child’s capacity to commit and understand the consequences of the alleged crime, therefore, the Board must be very careful while making a preliminary assessment and should not mechanically rely on Social Investigation Report without analysing the child’s case.
Further, the Court noted that the NCPCR guidelines also specify that while considering other information for preliminary assessment, the confessional statement from Social Investigation Report must not be considered. The Court explained that the sole aim of the preliminary assessment is to determine whether the child in conflict with law 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 JJ Board and not to seek confession from the child, nor to reach at any conclusion of any sort.
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.
The Court said 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, as provided in the NCPCR guidelines referring to Rule 10A(4) of the Model Rule.
The Court elucidated certain questions which are to be considered for preliminary assessment exercise and in the JJ Board’s report, as per the NCPCR guidelines:
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whether the child was victim of any offence in the past;
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if yes, what is the nature of offence;
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whether the child was put to extreme mental trauma ever;
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whom does a child sees as their role models;
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what are child’s ambitions in life;
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whether the child is associated with any group formed by adults;
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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;
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whether the child suffers from any kind of disability as listed in Rights of Persons with Disabilities Act, 2016; specify;
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whether the child is prone to taking drugs or alcohol;
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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;
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whether the child has suicidal tendencies or of harming own self;
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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, etc.
Regarding the guidelines for the Board to justify the orders of preliminary assessment, the Court referred to Kent v. United States, 1966 SCC OnLine US SC 49, wherein the United States Supreme Court laid down certain factors for the Courts to consider before transferring the juvenile to the criminal Courts, such as: the seriousness of the alleged offence; whether the alleged offence was committed in an aggressive, violent, premediated, or willed manner; whether the offence was committed against persons or against property; the prosecutive merit, consideration of his home, environmental situation, emotional attitude, and pattern of living; and the previous criminal records.
[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.
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