Sunday 27 March 2022

Should JJB or Children's court allow the juvenile to participate in his preliminary assessment?

 The case, in hand, falls within the category of heinous offence and the petitioner, being more than 16 years of age on the date of commission of offence, is required to be dealt with as per provisions of Section 15 of the Act for the purpose of making preliminary assessment. As per arguments of learned counsel for the petitioner, the Board has not conducted the preliminary assessment as per provisions of the Act and Rules framed thereunder. A conjoint reading of both Rules 10, 10A inconsonance with Section 14, 15 and 18(3) would reveal that the path to be tread upon by the Board, post the production of the Juvenile has been clearly spelt-out where heinous offence has been alleged to be committed by a child, who has completed 16 years of age. Rule 10(5) clearly reflects that the Child Welfare Police Officer is to produce the statements of witnesses  and other documents prepared during the course of investigation within a period of one month from the date of first production of a child before the Board. It is also required that a copy thereof is to be given to the child or parent or guardian of the child. The legislature in its wisdom has prescribed the period of one month to produce the statements of the witnesses and other documents with a copy to the child, subsequent to which, the Preliminary Assessment in case of heinous offences under Section 15 of the Act has to be completed. Meaning thereby, the copy of list of witnesses and other documents along with copy of final report is to be supplied to the child or his parents or to the guardian before making the Preliminary Assessment as per provisions of Section 15 of the Act. It is also stipulated in Section 15 read with Rules 10 and 10-A along with other provisions of the Act that three basic parameters are necessary to be followed in case of a heinous offence before passing the order under Section 18(3) for determining the need for trial of a child as an adult. The Board had to follow three parameters for making Preliminary Assessment as to whether there is a need for the trial of said child as an adult or not. It is to be seen as to how the Board as well as the Appellate Court has appreciated the circumstances of the commission of alleged offence, without the list of witnesses, documents relevant to the matter as well as the final report, which in any case the investigating authority is to file before the Board in less than two months of the production of the child before it.

In the present case, no list of witnesses and documents were supplied to the petitioner or his parents or guardian, which itself shows that the Board as well as the Appellate Court have decided the case without any application of mind and contrary to the provisions of the Act and the Rules 14 of 19 framed thereunder.

The proviso to Section 15 enables the Board to take the assistance of any experienced psychologist or other experts to make the Preliminary Assessment. It is clearly mentioned in para No.17 of order dated 20.12.2017 passed by the Board that in case, the opinion/assistance of any expert is required, the same be taken. It is necessary to assess the mental capacity of the juvenile. It was mandatory for the Board to assess the mental capacity of the alleged offender to commit such an offence and also the ability to understand the consequences of the same. It is also clear from the order that the clinical psychologist has himself suggested that if any further assessment is required, the juvenile may be sent to the Institute of Mental Health at Rohtak. However, it has completely been ignored by the Board and the assessment is based on inappropriate tests, namely, coloured Progressive Matrices (CPM) and Malin's Intelligence Scale for India Children (MISIC) meant for children between the ages of 5-11½ and 5-15 has been taken as the basis for the determination of the mental capacity of a child of 16½ years. Both the Board as well as the Appellate Authority have completely ignored this fact. The petitioner wanted to cross examine the psychologist regarding the same but his request was declined and no permission was granted to him. The social investigation report is also self contradictory and the same is not worth considering. The copies of the tests, in question, were not provided to the petitioner/parents/guardian but were shown just prior to the hearing of arguments. It was not practically possible to understand 35 pages of the report by any layman in a time period of less than 30 minutes. However, in a time period of 30 minutes, the petitioner got to have a look at the record of Dr. Joginder Singh Kairo, Clinic Psychologist. It came out that he had carried the assessment on the basis of two tests i.e (i) Coloured Progressive Matrices (CPM) and (ii) Malin's Intelligence Scale for Indian Children (MISIC). The petitioner (represented by his father) and his counsel were having no idea about these tests. Subsequently, they tried to find out and came to know that those tests were absolutely irrelevant to the case of the petitioner and could not be used for making the mental assessment of the petitioner. The basic book on Clinical Child Psychology written by Radhey Sham and Azizuddin Khan categorically states that Malin's test of Intelligence for children is made for 5 to 15 years of children. Since the petitioner was 16.75 years old, when these tests were conducted on him, which were not correct tests and have resulted in wrong results. Said expert himself stated in his report that it would be appropriate that further assessment be made by a higher authority. This resulted in the petitioner doubting the credentials of the so called experts. Only because of this reason, the petitioner not only sought copies of the reports but also wanted to cross examine them so as to check the veracity and the credentials of the experts and their reports. However, he was not allowed in spite of specific request and averments made to that effect, leading to travesty of justice. 

The Appellate Court has further held that there was no requirement of giving any statement of witnesses or documents etc. to the petitioner/guardian/parent, which is absolutely in contradiction with the provisions of Rule 10(5) read with Sections 3(iii) and (xvi) read with Section 8(3) of the Act. As a matter of fact, all provisions of the Act as well as the Rules made thereunder have to be read harmoniously, to achieve the objective of the Act.

The argument raised by learned counsel for the respondent-CBI that this Court has a limited jurisdiction to invoke in the revision petition, does not carry any weight because as per provisions of Section 102 of the Act, in case, there is any illegality and perversity or there is non-compliance of mandatory provisions, this Court has a power to exercise the revisional jurisdiction. This view has been supported by the law laid down in cases Jagannath Choudhary vs Ramayan Singh 2002(2) RCR (Criminal) 813 and Rajinder Singh vs Vishal Dingra 2015(8) RCR (Criminal) 453.

In view of the facts and law position as discussed above, the 18 of 19 present petition is allowed and impugned order dated 20.12.2017 passed by the Juvenile Justice Board, Gurugram and order dated 21.05.2018 passed by the Additional Sessions Judge, Gurugram are set aside. The case is remanded back to the Board for afresh consideration after assessing the intelligency, maturity, physical fitness as to how the juvenile in conflict with law was in a position to know the consequences of the offence. 

Punjab-Haryana High Court
Bholu vs Central Bureau Of Investigation on 11 October, 2018

Crl. Rev. No.2366 of 2018    
Read full Judgment here: Click here
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