The next important aspect that needs to be gone into and considered is, as to whether the inquiry and preliminary assessment conducted by the J.J.B. to pass final order under Section 18 sub-section (3) of the J.J. Act to try the JCLs as an adult, is sustainable in law? In order to satisfy myself, I have gone through the Roznama maintained by the J.J.B. The Roznama relevant for the purpose of this proceeding is from 04.12.2018 to 01.04.2019. It is to be noted that the roznama is maintained to record the summary of the proceeding undertaken before the Court on the given date. On 04.12.2018, the informant made an application at Exh.52 under Section 15 read with Section 18 of the J.J. Act and prayed to try the JCLs (accused nos. 1 and 5) as an adult. Perusal of the roznama of the proceeding from 04.12.2018 to 01.04.2019 would show that there is no mention of providing a copy of the application either to the JCLs or their advocates. Similarly, there is no mention of providing copy of the SIR submitted by the Probation Officer either to the JCLs or to their advocates. The report of the Psychiatrist was received by the J.J.B. on 01.04.2019. The order in question was passed on 01.04.2019. There is no mention in the Roznama that a copy of the report of the Psychiatrist was provided to the JCLs or to their advocates. It is to be noted that the inquiry to arrive at a conclusion to try the child as an adult, has to be conducted in a transparent and fair manner. The record of inquiry maintained by the Court in this regard must not leave any scope to doubt the reasonable and fair approach of the Board. It is to be noted that in the roznama, there is no mention of presence of the advocates for the JCLs and presence of JCL nos. 1 and 5, on some dates. It is to be noted that the object behind calling SIR through the Probation Officer and the report of the Psychiatrist, is to arrive at a final decision on the point of trial of the JCLs as an adult. Section 15 of the J.J. Act provides for preliminary assessment in case of heinous offence alleged to have been committed by a child, who has completed or is above the age of 16 years. The Board is required to conduct a preliminary assessment with regard to his mental and physical capacity to commit the offence, ability to understand the consequences of the offence and the circumstances in which the alleged offence is committed. The Board, in the process of assessment, may take assistance of experienced Psychiatrists or psychosocial workers or other experts. In this case, the J.J.B. called SIR from the Probation Officer and also report from the Psychiatrist to decide the application (Exh.52) made by the informant, father of the victim, to try the JCLs as an adult in view of heinous offence committed by them.{Para 12}
13. It is to be noted that in the process of this preliminary assessment, the J.J.B. on its own, in exercise of the powers under Section 14 of the J.J. Act or on the application of the victim or the informant, is required to ensure the effective and meaningful participation of the child. The Board has to follow the general principles laid down under Section 3 of the J.J. Act for proper administration of the Act. The inquiry conducted under Section 15 of the J.J. Act must display the adherence to the basic procedural standards of fairness. The child in this process is required to be given fair and unbiased hearing.
14. In this case, the J.J.B. did not conduct the inquiry and preliminary assessment as provided under Sections 14 of the J.J. Act. The J.J.B. on the application made by the informant, father of the minor victim, started preliminary assessment as provided under Section 15 of the J.J. Act. It is to be noted that the J.J.B. was required to display fairness and unbiased approach in the entire process. The J.J.B. was required to act strictly in accordance with the provisions of the J.J. Act and ensure transparency and fairness in the proceeding. The roznama of the J.J.B. produced on record does not indicate that the J.J.B. ensured active participation of the JCLs in the inquiry proceeding. It needs to be stated that the final order passed by the J.J.B. to try the JCLs as an adult with such a half-hearted inquiry, has caused prejudice not only to the JCLs, but to the informant and the victim. In this case, the J.J.B. has not followed the procedure laid down under the J.J. Act and the J.J. Rules while conducting preliminary assessment of the JCLs to try them as an adult. It has caused prejudice not only to the JCLs, but also to the informant and the victim. The trial of the child below 18 years of age before the J.J.B. is a rule and trial of the child above 16 years of age before the regular Court as an adult, is an exception. The exceptional circumstances must exist and must be proved within the parameters of Section 15 of the J.J. Act to try the child as an adult in case of heinous offences. In this case, the J.J.B. has not followed the procedure prescribed under the J.J. Act and the J.J. Rules. The order passed by the J.J.B. and confirmed by learned Additional Sessions Judge/Children's Court, therefore, has caused prejudice not only to the JCLs, but also to the informant and the victim. The orders are, therefore, required to be quashed and set aside.
15. The J.J.B. consists of Metropolitan Magistrate or Judicial Magistrate, First Class with at least three years experience and two social workers selected by following the procedure. Section 7 of the J.J. Act provides the procedure to be followed by the J.J.B. Section 7, subsection (3) and the Proviso to sub-section (3) of the J.J. Act is required to be considered in the context of the question involved before this Court. Sub-section 3 provides that a Board may act notwithstanding the absence of any member of the Board and the order of the Board shall not be invalid by the reason only of the absence of any member during any stage of proceedings. Proviso to sub-section (3) of the J.J. Act is applicable to the proceeding where the order is with regard to the final disposal of the case or in making the order under sub-section 3 of Section 18. It provides that at the time of final disposal of the case or in making order under sub-section (3) of Section 18, at least two members including the Principal Magistrate, must be present for the said purpose. Perusal of the relevant roznama does not indicate presence of remaining two members of the Board. Even the order passed by the J.J.B. does not make a reference about presence of the remaining two members. The order is required to be authored by the Principal Magistrate. However, in the order, there must be a mention of the presence of remaining members of the Board. In this case, neither in the roznama, nor in the final order, there is mention of presence of the remaining two members. It is to be noted that this mandatory procedural compliance is required to be strictly met. In such serious matter, casual or mechanical approach cannot adopted. On this count also the order passed by the J.J.B. cannot be sustained.
In the High Court of Bombay(Nagpur Bench)
(Before G.A. Sanap, J.)
Mustafa Khan Jabbar Khan Vs State of Maharashtra,
Criminal Revision Application No. 32 of 2020
Decided on June 28, 2023,
Citation: 2023 SCC OnLine Bom 1285.
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