Belated Preliminary Assessment: Prejudicial to the Interest of CCLs

Introduction

On 27-3-2023, the Supreme Court declared Narayan Chetanram Chaudhary to be a child in conflict with law (CCL) i.e. 12 years 6 months on the date of offence. Narayan had been convicted, inter alia, under Section 302¹ of the Penal Code and sentenced to death. His appeal and review had been dismissed earlier by the Supreme Court. When passing the order for his release, the Supreme Court observed:

47. … He has already served more than 3 years of incarceration and under the law as it prevailed at the time of commission of offence as also under the Juvenile Justice (Care and Protection of Children) Act, 2015 Act (JJ Act, 2015)², he cannot be subjected to capital punishment. In view of this finding, the order sentencing him to death passed by the Additional Sessions Judge, Pune in Sessions Case No. 462 of 1994 and subsequently confirmed by the High Court and by this Court would stand invalidated by operation of law. He shall be set free forthwith from the correctional home in which he remains imprisoned, as he has suffered imprisonment for more than 28 years.³

A few pertinent facts regarding Narayan Chetanram Chaudhary v. State of Maharashtra case⁴. Firstly, the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act, 2000)⁵ applied to Narayan case⁶, as the offence was committed on 26-8-1994. Secondly, Narayan was found to be 12 years 6 months on the date of the offence. Thirdly, the JJ Act, 2000 entitled Narayan to immediate release from detention and death row, as he had spent more than three years in prison, which was the then maximum period of detention for CCLs.

It sounds paradoxical to say that Narayan was lucky — but, he was relatively lucky to M, a hypothetical case. A few facts about M’s case. M was below 18 years old on the date of the offence i.e. 26-8-2018. M was wrongly treated as an adult. M was convicted under Section 302 IPC and sentenced to death. M’s conviction and sentence was sustained by the High Court and the Supreme Court. M raised the plea of juvenility before the Supreme Court and by order dated 26-8-2023 was found to be 16 years 6 months on the date of the offence. The difference between Narayan case⁷ and that of M is that M is governed by the JJ Act, 2015, and that M is above sixteen years on the date of offence and is alleged to have committed a “heinous offence”⁸. What order should the Court pass on arriving at a finding that M was 16 years 6 months on the date of offence? Should M be forthwith released, as was Narayan?

Difference between the JJ Act, 2000 and the JJ Act, 2015

To answer the above questions, an important difference between the JJ Act, 2000 and the JJ Act, 2015 requires to be noted.

Under the JJ Act, 2000, every CCL⁹ “who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence”¹⁰, irrespective of the nature of the offence alleged to have been committed was to be dealt with by the Juvenile Justice Board (JJB). The JJ Act, 2015 for the first time under the Indian juvenile justice legislation provided for different treatment of CCLs who have completed the age of sixteen years and are alleged to have committed a heinous offence. In such situation, preliminary assessment is to be conducted by the JJB¹¹ upon which the trial of such CCL could be transferred¹² to the Children’s Court¹³. As per the JJ Act, 2015, a preliminary assessment is conducted regarding CCL’s “mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances with which he allegedly committed the offence”¹⁴. The JJ Act, 2015 stipulates that the preliminary assessment “shall be disposed of by the Board within a period of three months from the date of first production of the child”.¹⁵

It is for the JJB to assess the CCL’s physical and mental capacity, ability to understand the consequences of the offence and circumstances in which the offence was committed — the CCL needs to be so assessed as on the date of offence or near to the date of offence. The JJB may “take the assistance of experienced psychologists or psycho-social workers or other experts”¹⁶ during preliminary assessment, which the Supreme Court has held to be mandatory¹⁷. An order on preliminary assessment is a very significant order as it may result in removing the CCL from the JJB’s jurisdiction, therefore, mental health evaluation by a professional is crucial. Moreover, transfer to the Children’s Court is an exception to retention before the JJB; transfer orders may only be passed in extraordinary circumstances.¹⁸ Therefore, an accurate assessment is a sin qua non to a CCL’s transfer.

M’s case gives rise to further questions. Would the findings of M’s medical evaluation be relevant for preliminary assessment? Would the mental capacity and understanding of M, as on the date of the offence be accurately reflected by mental status examination conducted five years after commission of the offence, when an adult? What order should the JJB pass when the preliminary assessment is being belatedly conducted?

Depriving CCL of the protection of juvenile justice legislation

Narayan case¹⁹ is not the first case where a CCL is wrongly treated as an adult and deprived of the protection of juvenile justice legislation. Since the existence of the Children Acts²⁰, there have been several instances where a plea of juvenility was raised for the first-time during the trial or after conviction; the Police, Magistrate, the trial court, and Appellate Courts had treated the child as an adult. On 3-3-2023, the Supreme Court released a CCL awarded the death sentence holding him to be 15 years 4 months at the time of offence.²¹ Though this case fell within the purview of the JJ Act, 2015, the issue of belated mental health assessment was not gone into, as the CCL was found to be below 16 years of age on the date of offence, thus not necessitating the conducting of a preliminary assessment. In yet another case, the Supreme Court released a female convict undergoing life imprisonment as she was 17 years 9 months 4 days on the date of offence²².

Juveniles lodged in adult prisons

As crucial for CCLs’ well-being and treatment, minute consideration requires to be paid to determine the age of accused on the date of offence. “There can be no denial of the fact that lodging juveniles along with hardened adult criminals can have drastic implications on the physical and mental well-being of a juvenile offender.”²³ That CCLs should not be detained in prison has been repeatedly stressed by the Supreme Court. Firstly, CCLs are highly impressionable, hence, their co-mingling with adult offenders jeopardises their rehabilitation — “The law throws a cloak of protection round juveniles and seeks to isolate them from criminal offenders, because the emphasis placed by the law is not on incarceration but on reformation.”²⁴ Secondly, jail detention disrupts CCLs’ lives — “incarceration in jail has a dehumanising effect and it is harmful to the growth and development of children”.²⁵

The Supreme Court has often been approached to determine “age” of an accused/ convict under juvenile justice legislation. In 1984, in Gopinath Ghosh v. State of W.B. judgment, the Supreme Court mandated the Magistrate to conduct an inquiry regarding age of the accused when “the accused appears to be aged 21 years or below.”²⁶ While lamenting the practice of treating CCLs as adults, the Delhi High Court observed that no proper inquiry is being conducted by the police at the time of arrest nor by the Magistrates upon fist production and reiterated the opinion expressed in Gopinath Ghosh judgment.²⁷ The procedure for “determination of age” is presently detailed under Section 94²⁸ of the JJ Act, 2015.

In 2012, it was brought to the attention of the Delhi High Court that 114 prisoners were shifted from Tihar Jail to the Observation Home between October 2010 and August 2011 and that there were several potential CCLs still lodged therein.²⁹ Visit by the National Commission for Protection of Child Rights and the District Legal Services Authority (DLSA) revealed that of the 278 prisoners they had met, 100 were potential CCLs.³⁰

Relevance of date of offence

The rationale for juvenile justice legislation is that a child/adolescent has a lesser level of maturity and cognitive development than that of an adult, and therefore, should not be treated similarly.

It is well settled that the date of commission of the offence is the relevant date for application and administration of juvenile justice legislation. In Pratap Singh v. State of Jharkhand³¹, the Supreme Court, referring to Umesh Chandra v. State of Rajasthan judgment³², held that the age of CCL on the date of occurrence of the offence will determine the applicability of juvenile justice legislation so as “to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult”.

That “the date of occurrence will be the reckoning date for determining the age of the accused offender as juvenile offender”³³ is premised on the fact that treatment of an accused/offender should be proportional to such individual’s level of maturity and emotional/psychological development on the date of commission of the offence. To clarify this intent, the JJ Act, 2000 was amended in 2006, to ensure that all accused/ offenders who had “not completed eighteen years of age as on the date of commission of such offence”³⁴ were brought within the purview of juvenile justice legislation, irrespective of the status of their case, including final disposal.³⁵ Such provision has been retained under the JJ Act, 2015³⁶; the Supreme Court has referred to the same to provide relief to CCLs prosecuted as adults.³⁷

Following the same rationale, the “date of commission of offence” should be the date of reckoning to assess whether CCLs’ matter should be disposed of by the JJB or by the Children’s Court — it is the mental and cognitive development of the CCL on the date of the offence that is vital.

Consequence of delayed preliminary assessment

Treating a CCL as an adult upon arrest may result in such CCL being produced before the JJB for the first time several months or years after commission of the offence. In such event, would the mental status examination at such belated stage be able to accurately denote the CCL’s “mental capacity to commit such offence” and “ability to understand the consequences of the offence”, on the date of offence i.e. several months or years prior to the mental status examination. Every individual experiences progress to their mental capacity and understanding as their chronological age increases — “mental capacity” and “ability to understand” is constantly evolving. For preliminary assessment, “mental capacity” and “ability to understand” requires to be ascertained as on the date of the offence or near to that date, which the JJ Act, 2015 has limited to “a period of three months from the date of first production of the child before the Board”³⁸. Fixing of such time-limit indicates that a delayed preliminary assessment is not germane due to the evolution of a child’s mental capacity and understanding.

Some may contend that preliminary assessment is to be done within three months of first production before the JJB, therefore, the time starts running from the date of first production, and not from the date of commission of the offence. The question begetting an answer is whether mental status evaluation conducted three months after the date of offence would be relevant for assessing the parameters under Section 15(1)³⁹ of the JJ Act, 2015, more particularly, “mental capacity to commit such offence” and “ability to understand the consequences of the offence”.

It also may be contended that belated preliminary assessment is a mere procedural lapse which can be cured. It is essential to recognise that procedural and substantive aspects of criminal law are not always distinct. Preliminary assessment forms part of the procedural aspect of the JJ Act, 2015, but it also has a direct connect with the Act’s substantive aspect, as it alters the treatment of CCLs, namely, whether the inquiry/trial should be conducted by the JJB/the children’s court; whether on being found to have committed an offence, orders should be passed under Section 18(1)⁴⁰ or Section 19(1)(i)⁴¹ of the JJ Act, 2015.

A detailed procedure has been established for preliminary assessment, which the CCL expects will be strictly followed. Not conducting the preliminary assessment within the time prescribed under the JJ Act, 2015 causes grave prejudice to that CCL, which cannot be compensated in terms of money.

Prejudice caused to CCL due to belated preliminary assessment

“Prejudice” means damage or detriment to one’s legal rights or claims.⁴² Time is the essence of preliminary assessment. A time-bound preliminary assessment is the right of a CCL. Belated preliminary assessment is contaminated, causing great injury to the CCL, inasmuch as such CCL’s mental capacity to commit the offence and the ability to understand the consequences of the offence cannot be assessed as on the date of offence. It is not possible to return to a situation prevailing six months or three years earlier, hence, such lapse cannot be cured nor compensated. Such delay goes to the root of the matter — it would be impossible to assess the mental capacity of the CCL at such belated stage. Condoning such delay would result in gross injustice to the CCL.

Remedying the prejudice caused to the CCL

Every legal wrong should have a legal remedy. The remedy should be such that it ameliorates the injury caused by the breach. The remedy needs to be designed as per the factors relating to that breach — has the breach caused irreparable injury to the accused; can the breach be remedied by payment of monetary compensation; can the breach be remedied by reduction of the sentence; does the remedy adversely affect the victim and society’s interests; does the remedy have an impact upon the outcome of the case. For example, contravention of the right to a speedy trial may be remedied with payment of compensation or reduction in sentence; denial of the right to a fair trial may be remedied by remanding the matter for a rehearing.

Delay in initiating a preliminary assessment forecloses CCL’s right to timely preliminary assessment, and consequently, mental capacity evaluation on the date of offence. Belated mental capacity evaluation is of no value for the purpose of preliminary assessment. Per Barun Chandra Thakur judgment,⁴³ examination of CCL by a mental health professional is compulsory for preliminary assessment. The judgment also states that “meticulous psychological evaluation” should be conducted as it “is one of the most crucial determinants of the preliminary assessment mandated by Section 15⁴⁴ of the Act, 2015”.

Moreover, the delay due to CCL’s initial treatment as an adult is not for any fault of the CCL — it is the criminal justice system, including the judicial system that has failed him. Though courts are mandated to determine juvenility, the Magistrates, trial courts and Appellate Courts have handled CCLs as adults, thereby, depriving them of the protection of a socio-beneficial piece of legislation. Denial of such protection results in CCLs being denied a timely preliminary assessment, which has caused them irreparable injury. In such instance, the doctrine of actus curiae neminem gravabit⁴⁵ becomes applicable, and the courts are required to design an appropriate remedy to mitigate the prejudice caused.

Preliminary assessment stands vitiated due to delay

As it is impossible to turn back the clock, the delay in conducting preliminary assessment, more particularly the mental status examination, renders it impossible to ascertain the CCL’s mental capacity and the ability to understand the consequences of the offence as on the date of offence. In such an event, to transfer the CCL’s trial to the Children’s Court amounts to miscarriage of justice, as the preliminary assessment has not been conducted per the JJ Act, 2015 and irreparable prejudice has been caused to the CCL. Preliminary assessment is time critical. Delay strikes to the very root of the preliminary assessment, thereby vitiating it.

In view of the principle of best interest⁴⁶ and the principle of non-waiver of rights⁴⁷, the CCL who is produced before the JJB more than three months after the commission of the offence should be dealt within the juvenile justice system as a “child”⁴⁸.

Conclusion

In case of belated preliminary assessment, a balanced approach would be the CCL’s trial before the JJB, whilst at the same time pursuing the case against the CCL to its logical end. Such handling of the case ensures that the prejudice caused to the CCL is addressed, while protecting the victim and societal interests. Moreover, it will not affect the outcome on merits of the CCL’s case; if upon inquiry the CCL is found to have committed the offence, the JJB shall pass suitable orders under Sections 18(1) and (2) of the JJ Act, 2015 for his rehabilitation.

Irrespective of whether the 2000 Act or the 2015 Act applies, CCLs’ incarceration in prison is ground for forthwith release on bail and compensation for contravention of Article 21⁴⁹ of the Constitution and the hardships of the criminal justice system.