Leading Supreme court judgment on preliminary assessment of juvenile under juvenile justice Act

Preliminary assessment of Juvenile

What are the four attributes of preliminary assessment under Section 15(1) of the 2015 Act?

First and foremost, the JJB has to assess whether the child in conflict with law had the mental capacity to commit the offence. Secondly, it has to consider whether the child had the physical capacity to commit the nature of the alleged offence. Thirdly, it must satisfy itself whether the child had sufficient maturity and ability to understand the consequences of their action. Fourth, it is to refer to the circumstances in which the child allegedly committed the offence.

 In the Supreme Court of India

(Before Dinesh Maheshwari and Vikram Nath, JJ.)

Criminal Appeal No. 950/2022

Barun Chandra Thakur Vs  Master Bholu and Another 

Decided on July 13, 2022

Citation: 2022 SCC OnLine SC 870.

Print Page

What are important factors to be considered by JJB or children court while doing preliminary assessment of juvenile as per S 15 of Juvenile justice Act 2015?

 In the report submitted by the experts to the Board it does not deal with the aforementioned aspects, which are relevant in view of the language used under Section 15 of the Act of 2015 like family history and relationship, school and education, work with which the juvenile was engaged at the time of commission of offence, peer relationships, whether he has been trauma and abuse (physical, sexual and emotional abuse experience), mental health disorders/developmental disability. {Para 15}

16. The Act of 2015 enacted with laudable object of “best interest of child” therefore, at the time of conducting preliminary assessment of a child each provisions and the words used is to be given its fullest meaning so as to achieve the object of the Act of 2015. Rule 10 A (3) envisages that at the time of preliminary assessment child should be presumed to be innocent unless proved otherwise, therefore, while assessing the understanding of the juvenile, the consequences of the offences allegedly committed the mindset of the assessing Committee or the Board should be that the juvenile before it is innocent.

17. The order passed by the Board on 05.01.2023 would reveal that the Board considered the report of experts and further put some question to juvenile during the proceedings and came to the conclusion that juvenile is to be tried as an adult under the provisions of Section 18(3) of the Act of 2015.

18. From the report of the experts relied upon by the Board it is clearly appearing that experts have not assessed the juvenile as mandated under Section 15 of the Act of 2015. There is no detailed report of the assessment made, no document is enclosed along with the report of conducting assessment, procedure adopted, factors assessed, mode of assessment, evaluation of child based on the stages of assessment and further there is no discussion of circumstances in which the juvenile allegedly committed the offence.

19. In absence of the aforementioned detailed assessment as mandated under Section 15 of the Act of 2015, I am of the considered view that the Board failed in its duty to comply with the provision under Section 15 of the Act of 2015 making preliminary assessment of the juvenile. The Children Court also have only considered the offence committed by the juvenile and the manner in which it was committed and failed to take note of the requirement under Section 15 of the Act of 2015 for preliminary assessment of juvenile. The Children Court also have considered only two line report submitted by the expert.

 In the High Court of Chhattisgarh, Bilaspur

(Before Parth Prateem Sahu, J.)

Xyz  Vs  State of Chhattisgarh, through Police Station Sariya.

CRR No. 962 of 2023

Decided on May 2, 2024

Citation: 2024 SCC OnLine Chh 4280.

Print Page

Supreme Court Prescribes 30 Days Time Limit To Prefer Appeal Against Juvenile Justice Board Preliminary Assessment Order

 Though, the right of appeal has been provided in Section 15(2) and Section 101(2) of the Act against an order passed Under Section 18(3) after preliminary assessment Under Section 15 of the Act, however, neither any time has been fixed for filing the appeal nor any provision is provided for condonation of delay in case need be.

{Para 13}

13.1. In our opinion, the same being an omission. In order to make the Act workable and putting timelines for exercise of statutory right of appeal which always is there, we deem it appropriate to fill up this gap, which otherwise does not go against the scheme of the Act. Hence, for the period for filing of appeal in Section 101(2), we take guidance from Section 101(1) of the Act. The period provided for filing the appeal therein is 30 days and in case sufficient cause is shown the power to condone the delay has also been conferred on the appellate authority. Timeline has also been provided for decision of appeal.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2411 of 2024 (Arising out of Special Leave Petition (Crl.) No. 3033 of 2024)

Child in Conflict with Law through his Mother Vs. The State of Karnataka and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Decided On: 07.05.2024.

Citation:  MANU/SC/0395/2024.

Read full Judgment here: Click here.

Print Page

WHETHER THE PERIOD PROVIDED FOR COMPLETION OF PRELIMINARY ASSESSMENT UNDER SECTION 14(3) OF THE JJ ACT IS MANDATORY OR DIRECTORY?

  Section 15 of the Act enables the Board to make preliminary assessment into heinous offences where such an offence alleged to have been committed by a child between 16 and 18 years of age. The preliminary assessment is to be conducted with regard to his mental and physical capacity to commit such an offence, ability to understand the consequences of the offence and the circumstances in which the offence was allegedly committed. Proviso to the aforesaid Section provides that for making such an assessment the Board may take assistance of an experienced psychologist or psycho-social worker or other experts. Explanation thereto provides that the process of preliminary assessment is not a trial but merely to assess the capacity of such a child to commit and understand the consequences of the alleged offence. The importance of the assistance from the expert is even evident from Section 101(2) of the Act. While considering the appeal against an order passed Under Section 15, the appellate authority can also take assistance of experts other than those who assisted the Board. {Para 9}

9.2. Section 14(3) of the Act provides that the preliminary assessment in terms of Section 15 is to be completed by the Board within a period of three months from the date of first production of the child before the Board.

9.3. In case the Board after preliminary assessment Under Section 15 of the Act comes to a conclusion that the trial of the CCL is to be conducted as an adult, then the Board shall transfer the records to the Children's Court having jurisdiction. 9.4. The argument raised by learned Counsel for the Appellant was that the CCL was produced before the Board on 03.11.2021. The period of three months having expired on 02.02.2022, any order passed by the Board thereafter is non-est, and the trial of CCL cannot now be transferred to the Children's Court.

9.5. What we need to consider is as to whether the timeline for the conclusion of inquiry as envisaged Under Section 14 is mandatory or directory?

9.9. Meaning thereby that as far as inquiry of CCL, as envisaged Under Section 14(1) of the Act, by the Board for heinous offences is concerned, there is no deadline after which either the inquiry cannot be proceeded further or has to be terminated.

9.10. Now coming to the issue in hand. It is not in dispute that the CCL has allegedly committed a heinous offences. The argument is with reference to the period provided for the conclusion of preliminary assessment Under Section 15 of the Act and passing of an order Under Section 15(2) or 18(3) of the Act, namely as to whether the matter is to be enquired into by the Board or is to be transferred to the Children's Court for trial of the CCL as an adult.

9.12. The inquiry as envisaged in Section 15(1) of the Act enables the Board to take assistance from experienced psychologists or psycho- social workers or other experts. The proviso has nexus with the object sought to be achieved. The Act deals with the CCL. The preliminary assessment as envisaged in Section 15 has large ramifications, namely, as to whether inquiry against the CCL is to be conducted by the Board, where the final punishment, which could be inflicted is lighter or the trial is to be conducted by the Children's Court treating the CCL as an adult, where the punishment could be stringent.

9.13. As noticed earlier, the preliminary assessment into the heinous offence by the Board in terms of Section 15(1) of the Act has to be concluded within a period of three months in terms of Section 14(3) of the Act. The Act as such does not provide for any extension of time and also does not lay down the consequence of non-compilation of inquiry within the time permissible. In the absence thereof the provision prescribing time limit of completion of inquiry cannot be held to be mandatory. 

9.14. As in the process of preliminary inquiry there is involvement of many persons, namely, the investigating officer, the experts whose opinion is to be obtained, and thereafter the proceedings before the Board, where for different reasons any of the party may be able to delay the proceedings, in our opinion the time so provided in Section 14(3) cannot be held to be mandatory, as no consequences of failure have been provided as is there in case of enquiry into petty offences in terms of Section 14(4) of the Act. If we see the facts of the case in hand, the investigating officer had taken about two months' time in getting the report from the NIMHANS.

9.15. Where consequences for default for a prescribed period in a Statute are not mentioned, the same cannot be held to be mandatory. 

9.22. Hence, we are of the opinion that the time provided in Section 14(2) of the Act to conduct inquiry is not mandatory but directory. The time so provided in Section 14(3) can be extended by the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, for the reasons to be recorded in writing.

9.27. In our opinion, the guidance as is evident from Sub-section (4) of Section 14 of the Act enabling the Chief Judicial Magistrate or Chief Metropolitan Magistrate to extend the period of inquiry as envisaged Under Section 14(1), shall apply for extension of period as envisaged in Sub-section (3) also. Such an extension can be granted for a limited period for the reasons to be recorded in writing. While considering the prayer for extension of time, the delay in receipt of opinion of the experts shall be a relevant factor. This shall be in the spirit of the Act and giving the same a purposive meaning.

9.28. We approve the views expressed by the High Court of Madhya Pradesh in Bhola v. State of Madhya Pradesh   MANU/MP/0210/2019 and the High Court in Delhi in CCL v. State (NCT) of Delhi MANU/DE/5341/2023 : 2023:DHC:5661 who while dealing with the provisions of Section 14 of the Act have held that the time period prescribed for completion of the preliminary assessment is not mandatory but merely directory in nature. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2411 of 2024 (Arising out of Special Leave Petition (Crl.) No. 3033 of 2024)

Child in Conflict with Law through his Mother Vs. The State of Karnataka and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Decided On: 07.05.2024.

Citation:  MANU/SC/0395/2024.

Read full Judgment here: Click here.

Print Page

Supreme Court : Appeal Against Preliminary Assessment Order passed under JJ Act is Maintainable Before Children's Court if available, Not Sessions Court

 (A) REGARDING THE TERMS USED AS 'CHILDREN'S COURT' AND 'COURT OF SESSIONS'

11. Section 101 of the Act provides for appeal against various orders as provided therein. Sub-section (1) thereof provides that any person aggrieved by an order made by the Committee or the Board under the Act may within 30 days from the date of such order prefer an appeal to the Children's Court, with an exception that against decision of the Committee relating to foster care and sponsorship care the appeal shall lie to the District Magistrate. The term 'Committee' has been defined in Section 2(22) of the Act to mean 'Child Welfare Committee' constituted Under Section 27 thereof.

The proviso to Sub-section (1) of Section 101 provides that the Court of Sessions or District Magistrate, as the case may be, may entertain the appeal after expiry of the period of 30 days in case sufficient cause is shown for the delay in filing. 11.1. Sub-section (2) of Section 101 provides that an appeal against the order passed by the Board after making preliminary assessment Under Section 15 of the Act shall lie before the Court of Sessions. While deciding the appeal, the Court can take assistance of experienced psychologists and medical specialists, other than those whose assistance was taken by the Board while passing the order impugned. It shows independent examination of the issue. Sub-section (4) provides that, no second appeal will be maintainable from the order passed by the Court of Sessions. In Barun Chandra Thakur's case (supra) the provisions have been held to be mandatory. 11.2. Some anomalies are evident in the aforesaid proviso, as pointed out by the learned Counsel for the parties at the time of hearing. Their contention was that the anomalies should also be addressed, so as to streamline the procedure in future. We also think in the same direction, keeping in view the spirit of law.

11.3. The term Court of Sessions as such has not been defined in the Act. The trial of CCL, who is of the age of 16 years or above and is involved in a heinous offence is to be conducted by the Children's Court, treating him as an adult.

11.4. 'Children's Court' has been defined in the Act in Section 2(20) to mean the Court established under the 2005 Act or a Special Court established under the 2012 Act. Where such Courts are not existing, the Court of Sessions shall have jurisdiction to try the offence under the Act. Meaning thereby the Presiding Officer of the Children's Court and the Court of Sessions have been put in same bracket. There is no doubt with the proposition that a Sessions Judge would include an Additional Sessions Judge as well.

11.5. Section 25 of the 2005 Act provides that for providing speedy trial of offences against children or violation of child rights, the State Government in concurrence with the Chief Justice of the High Court by notification specify at least a Court in the State or for each district a Court of Sessions to be a Children's Court. Meaning thereby the Special Court under the 2005 Act is at the level of the Sessions Court.

11.6. Section 101(1) of the Act deals with filing of appeals against certain orders passed by the Board or the Committee before the Children's Court, as the case may be. The proviso to the aforesaid Sub-section provides that in case there is any delay in filing the appeal, the power of condonation has been vested with the Court of Sessions. The word 'Children's Court' is not mentioned, though appeal is maintainable before Children's Court.

11.7. Sub-section (2) of Section 101 of the Act provides for an appeal against an order passed by the Board Under Section 15 of the Act. The appellate authority is stated to be Court of Sessions.

11.8. Rule 13 of the 2016 Rules deals with the procedure in relation to Children's Court and Monitoring Authorities. Sub-rules (3) and (4) thereof which deal with appeal filed Under Section 101(2) of the Act refer the appellate authority as the 'Children's Court' though in Section 101(2) of the Act appeal is stated to be maintainable before the Court of Sessions. From the above provision also, it is evident that the words 'Court of Sessions' and the 'Children's Court' have been used interchangeably.

12.1. Similarly, Sub-section (2) provides that against an order passed by the Board after preliminary assessment Under Section 15 of the Act, the appeal is maintainable before the Court of Sessions. The Board is headed by the Principal Magistrate. Here, the word Children's Court is not mentioned.

12.2. From a conjoint reading of the aforesaid provisions of the Act and the 2016 Rules, in our opinion, wherever words 'Children's Court' or the 'Sessions Court' are mentioned both should be read in alternative. In the sense where Children's Court is available, even if the appeal is said to be maintainable before the Sessions Court, it has to be considered by the Children's Court. Whereas where no Children's Court is available, the power is to be exercised by the Sessions Court.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2411 of 2024 (Arising out of Special Leave Petition (Crl.) No. 3033 of 2024)

Child in Conflict with Law through his Mother Vs. The State of Karnataka and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Decided On: 07.05.2024.

Citation:  MANU/SC/0395/2024.

Print Page

Supreme Court: Section 94 Juvenile Justice Act | Ossification Test Has Been Kept At The Last Rung To Determine Age

Section 94(2) of the JJ Act provides for the mode of determination of age. In the order of priorities, the date of birth certificate from the school stands at the highest pedestal whereas ossification test has been kept at the last rung to be considered, only in the absence of the criteria Nos. 1 and 2, i.e. in absence of both certificate from school and birth certificate issued by a Corporation/Municipal Authority/Panchayat. {Para 20}

 IN THE SUPREME COURT OF INDIA

Writ Petition (Crl.) No. 121 of 2022

Decided On: 05.03.2024

Vinod Katara Vs. State of U.P.

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Authored By : B.R. Gavai, Sandeep Mehta

Citation:  MANU/SC/0173/2024.

Print Page

Supreme Court Extends Use Of Vulnerable Witness Deposition Centre's To All Jurisdictions Including Civil, Family Cases

The use of VWDCs should, in addition to criminal cases, be allowed for other jurisdictions, including, civil jurisdictions, family courts, juvenile justice boards and Childrens’ courts. Permission should be granted for recording the evidence of vulnerable witnesses in cases across all jurisdictions. This suggestion in the report is appropriate and is accepted. {Para 3}

IN THE SUPREME COURT OF INDIA

DR. JUSTICE D.Y. CHANDRACHUD; ANIRUDDHA BOSE, JJ.

Miscellaneous Application No. 1852/2019 in Crl.A. No. 1101/2019; 

SMRUTI TUKARAM BADADE Vs THE STATE OF MAHARASHTRA & ANR.

Dated: 08-04-2022.

Print Page

Questions and answers on law(Part 58)

Q No. 1 :- How many times preamble of constitution was amended?

Ans:- The Preamble has been amended only once so far, in 1976, by the 42nd Constitutional Amendment Act, 1976. The amendment added three new words:

1. Socialist
2. Secular
3. Integrity. It also changed "unity of the nation" to "unity and integrity of the nation

Q No. 2:- Which of the following Amendment of the Constitution deals with reservation for Economically Weaker Sections (EWS) in education and public employment?

Ans:- 103rd Constitutional Amendment provides 10% reservation for Economically Weaker Sections (EWS) in education and public employment.

Print Page

What is duty of Juvenile Justice Board while doing preliminary assessment of Juvenile for trying him as adult?

 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.

Read full Judgment here: Click here

Print Page

Whether victim or her relative can make application before Juvenile Justice Board to try Juvenile as adult?

The J.J.B., as per the provisions of Section 15 of the J.J. Act, on its own, was required to conduct the preliminary assessment with regard to the mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which the offence was committed by the JCLs. This inquiry by the J.J.B., in terms of Section 14, sub-section (3) of the J.J. Act, has to be conducted within the prescribed timeline. In this case, it appears that the J.J.B. has failed to discharge its duty to make the preliminary assessment as provided under Section 14, sub-section (3) of the J.J. Act. Section 2, clause (33) defines “heinous offences”. The said definition is extracted below:—

“2. Definitions:—

(33) “heinous offences” includes the offences for which the minimum punishment under the Penal Code, 1860 (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more.”

10. It is to be noted that the minor victim was subjected to sexual assault. The persons involved in the crime are facing serious charge of gang rape. In my view, considering the nature of crime and keeping in mind the definition of heinous offences provided above, it was the bounden duty of the J.J.B. under the J.J. Act to conduct the preliminary inquiry and assessment. The J.J.B. has failed to discharge its duty in accordance with law. The father of the victim made an application at Exh.52 and called upon the J.J.B. to conduct preliminary assessment/inquiry and try the JCLs i.e. accused nos. 1 and 5 as an adult with the remaining five accused. On behalf of the JCLs, an objection has been raised that the inquiry contemplated under Section 15 of the J.J. Act, after prescribed timeline, neither can be conducted by the J.J.B. nor an application for such an inquiry can be entertained at the behest of the informant or the victim. In my view, this submission can not be accepted for more than one reason. Learned Additional Sessions Judge has dealt with this aspect in great detail. I record my concurrence with the observations made by the learned Judge on this point. It is to be noted that the timeline has been prescribed under the J.J. Act for conducting the inquiry by the J.J.B.

11. The J.J.B. consists of a Metropolitan Magistrate or Judicial Magistrate, First Class and two other members. The J.J. Act does not bar the right of the victim or the informant to invoke the provisions in case of failure of the J.J.B. to discharge its duty under the law. It is to be noted that to try the JCLs as an adult in case of heinous crime and where the age is above 16 years, is an exception to the general rule of trying the child below 18 years of age as a juvenile. It is to be noted that there is no express provision under the J.J. Act, whereby substantial right of the victim or the informant to put the law into motion and apply to the J.J.B. to comply the mandate of the J.J. Act, is debarred or taken away. Therefore, in my view, in this case on the ground of procedural lapse on the part of the J.J.B., the right of the informant to apply before the J.J.B. even after prescribed timeline cannot be taken away. I record my agreement with the finding recorded by learned Additional Sessions Judge as well as by the J.J.B. on this point.

 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.

Print Page

Bombay HC: Child Cannot Be Automatically Tried As An Adult Even If It Commits Heinous Crime

 As per Section 2(33) of the J.J. Act "heinous offences" means the offences in which minimum punishment is seven years or more. The learned JJB has held that none of the Sections 18, 20, 38 and 39 provides minimum punishment for seven years. The sine qua non for trying the CCL as an adult for committing heinous offence is minimum punishment of seven years. This issue is no longer res integra. In the case of Shilpa Mittal Vs. State (NCT of Delhi) and Another [MANU/SC/0020/2020 : (2020) 2 Supreme Court Cases 787] the Hon'ble Supreme Court held as under:

"34. From the scheme of Sections 14, 15 and 19 referred to above it is clear that the Legislature felt that before the juvenile is tried as an adult a very detailed study must be done and the procedure laid down has to be followed. Even if a child commits a heinous crime, he is not automatically to be tried as an adult. This also clearly indicates that the meaning of the words "heinous offence" cannot be expanded by removing the word "minimum" from the definition.

35. Though we are of the view that the word "minimum" cannot be treated as surplusage, yet we are duty-bound to decide as to how the children who have committed an offence falling within the 4th category should be dealt with. We are conscious of the views expressed by us above that this Court cannot legislate. However, if we do not deal with this issue there would be no guidance to the Juvenile Justice Boards to deal with children who have committed such offences which definitely are serious, or may be more than serious offences, even if they are not heinous offences. Since two views are possible we would prefer to take a view which is in favour of children and, in our opinion, the Legislature should take the call in this matter, but till it does so, in exercise of powers conferred under Article 142 of the Constitution, we direct that from the date when the 2015 Act came into force, all children who have committed offences falling in the 4th category shall be dealt with in the same manner as children who have committed "serious offences". {Para 11}

12. Having regard to this, it is clear that the learned JJB did not commit any error in rejecting the application Exhibit 25 in J.C. No. 160 of 2019 and the learned Appellate Court did not commit any error in dismissing Criminal Appeal No. 2 of 2021. Hence, the revision application is devoid of any substance. Revision Application is accordingly dismissed

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Revision Application No. 90 of 2021

Decided On: 16.03.2022

The State of Maharashtra Vs. Shadab Tabarak Khan

Hon'ble Judges/Coram:

M.G. Sewlikar, J.

Citation: MANU/MH/0906/2022

Print Page

Whether preliminary assessment done by JJB or children's court is vitiated if not completed within the prescribed period?

 As per Section 15(1) read with Section 14(3) of the J.J. Act, the preliminary assessment has to be completed within a period of three months from the date of the first production of the child before the Board. In this case, the applicant was produced before the Board on 06.06.2017. The preliminary assessment was disposed of by the Board on 07.05.2018, i.e. after a period of about 11 months. However, in paragraph 4 of the order, the Board has specifically mentioned that two members of the Board were not available, despite repeated correspondence the vacancies of two members were not filled up and therefore, the preliminary assessment could not be done within the prescribed period of three months. In the circumstances, the delay in preliminary assessment, by itself, would not vitiate the assessment made by the Board. As a matter of fact, there is no provision in the Act, which mandates that in case, preliminary assessment is not disposed of within three months, as prescribed under sub-section (3) of Section 14 of the J.J. Act, it would vitiate the preliminary assessment done at the later stage.

{Para 6}

Bombay High Court

Ajay S/O. Ramesh Bansode Through ... vs The State Of Maharashtra And Anr on 12 September, 2018

Print Page

Whether preliminary assessment done by JJB or children's court is vitiated if it has failed to take assistance psychologist or other experts?

 As per sub-section (3) of Section 14 of the J.J. Act, a preliminary assessment in case of heinous offence under Section 15, shall be disposed of by the Board within a period of three months from the date of first production of the child, who is above age of 16 years. The Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit the offence with ability to understand consequences thereof and the circumstances in which, he, allegedly, committed the offence and may pass an order as per sub-section (3) of Section 18 of the J.J. Act, provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts. It is explained that for the purposes of this Section, preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. From the proviso referred to above, it is clear that the Board may or may not take assistance of an expert for such an assessment. Therefore, contention of the learned Counsel for the applicant that for want of assistance from expert, the  preliminary assessment made by the Board in respect of the applicant, is not justifiable, cannot be accepted. {Para 5}

Bombay High Court

Ajay S/O. Ramesh Bansode Through ... vs The State Of Maharashtra And Anr on 12 September, 2018

Print Page

Whether JJB can transfer the juvenile to children court based on the report of probation officer?

  From the aforesaid excerpt, it becomes clear that when the word 'may' is used in an enactment in respect of a Court, the same has to be understood as 'shall'.{Para 12}

13. Looking to the fact that the order transferring the case of Juvenile between 16 to 18 years of age to the Children Court in itself is a step which needs to be taken very cautiously looking to the far reaching consequences and it would indeed be appropriate that the word 'may' be read as 'shall'.

14. Now the question is whether the Probation Officer can be considered to be an expert in the sense as described in the proviso to Section 15 of the Act. The aforesaid proviso requires assistance of experienced psychologists, or psycho social workers or other experts. Rule 10(a) expands the word "other experts" as "other experts who have experience of working with children in difficult circumstances". An expert can be considered to be one, who by way of his profession deals with a specialized subject. Probation Officers are such professionals who on daily basis work with children in difficult circumstances, hence a Probation Officer fits the bill of "other experts" as provided under Section 15 of the Act. Form No.6 which is the social investigation report for children in conflict with law, is required to be submitted by the Probation Officer. Various columns therein not only take into account social environment but also psychology of the child. Such a report by Probation Officer was considered to be a relevant feedback for obtaining preliminary assessment as per Section 15 of the Act in the judgment of Ashish Vs. State of Haryana (CRR No.851/2017 High Court of Punjab and Haryana, Chandigarh).

15. Broadly speaking, the preliminary assessment report should have shown conclusions regarding the following aspects:-

(i) Mental capacity to commit such offence.

(ii) Physical capacity to commit such offence.

(iii) Ability to understand the consequences of the offence and

(iv) Circumstances in which the juvenile in question had allegedly committed the offence.

16. The explanation to Section 15 makes it clear that the preliminary assessment is not a trial but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. The Apex Court in the case of Shilpa Mittal Vs. State of NCT of Delhi and Another in Criminal Appeal No.34/2020 (Arising out of SLP (Cri.) No.7678 of 2019) vide judgment dated 9.1.2020 has observed as under:-

"16............................... The explanation makes it clear that the preliminary assessment is not to go into the merits of the trial or the allegations against the child. The inquiry is conducted only to assess the capacity of the child to commit and understand the consequence of the offence. If the Board is satisfied that the matter can be disposed of by the Board, then the Board shall follow the procedure prescribed in summons cases under the Cr.P.C."

17. In the present case the Board, by way of extra caution, did not totally bank upon the Probation Officer's report but has individually prepared a questionnaire and has put questions in a manner so as to assess the mental capacity of the juvenile. Although the questions relate to the facts of the case but the purpose therein appears to be, as to whether the juvenile understands the gravity of the impugned act and its consequences. The manner in which the juvenile has responded to the questions, shows that he is articulate enough  to respond in a manner showing his adequate capacity to understand the gravity of the offence and consequences thereof and, therefore, he has answered in a manner displaying his innocence and non involvement in the crime.

20. The applicant is decidedly above 16 years of age, which has not been controverted and the offence for which he is accused of, is a heinous offence as per Section 2(33) of the Act.

21. After considering all these aspects, the Juvenile Justice Board has arrived at its conclusion which has rightly been affirmed by the appellate court.

22. It is not as if the applicant would invariably be tried as an adult after his transfer to the Children Court because as per Section 19 of the Act of 2015, the Children's Court may again decide that there is no need for trial of the child as an adult and the Children Court may itself conduct an enquiry as a Board and pass appropriate orders in accordance with the provisions of Section 18 of the Act. Thus, the Act of 2015 embodies multilayered checks and balances in respect of the manner such a juvenile ought to be dealt with.

Madhya Pradesh High Court

Ozaif Khan (Minor) Through ... vs The State Of Madhya Pradesh on 21 September, 2021

Print Page