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X Minor vs State Of U.P. And Another on 26 February, 2024

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Allahabad High Court

X Minor vs State Of U.P. And Another on 26 February, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. – 2024:AHC:32887

Court No. – 82

Case :- CRIMINAL REVISION No. – 6291 of 2023

Revisionist :- X Minor

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- Danish,Rajiv Sisodia

Counsel for Opposite Party :- G.A.

Hon’ble Mrs. Jyotsna Sharma,J.

1. Heard Sri Rajiv Sisodia, learned counsel for the revisionist and Sri L.D. Rajbhar, learned A.G.A. for the State.

2. By means of this criminal revision the revisionist- a child in conflict with law has challenged an order dated 19.01.2023, passed by Principal Magistrate, J.J. Board, Bijnor in case crime no. 150 of 2022 under sections 498A, 304B, 323 I.P.C. and section 3/4 of the D.P. Act whereby the J.J. Board directed the case of juvenile to be placed before the Children Court for trial and an order dated 03.11.2023, passed by the learned Children Court/ Special Judge (POCSO) in criminal appeal no. 87 of 2023, confirming the order of the J.J. Board.

3. The relevant facts are as below:

An F.I.R. case crime no. 150 of 2022 under sections 498A, 304B, 323 I.P.C. and section 3/4 of D.P. Act. came to be lodged. Finding the accused involved in the matter below 18 years, his matter was seized by the J.J. Board. The J.J. Board, finding him above 16 years and below 18 and allegedly having involved in a heinous offence, proceeded under the provisions of section 15 and 18 of the J.J. Act, 2015. The J.J. Board thereafter passed an order on 19.01.2023, directing the matter to be placed before the children court for trial. On behalf of the juvenile, an appeal, challenging the aforesaid order of the J.J. Board was filed. The appellate court dismissed the appeal by its order dated 3.11.2023, upholding the order passed by the J.J. Board. Both the above orders are impugned in this case.

4. It is submitted on behalf of the revisionist that ideally, before proceeding under section 18 of the J.J. Act, 2015 the J.J. Board should have conducted a separate preliminary inquiry as provided under section 15 of the J.J. Act 2015.

5. I went through the relevant provisions. The provisions of section 15 of the J.J. Act, 2015, are as below:

“Section 15- Preliminary assessment into heinous offences by Board

(1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

Explanation.?For the purposes of this section, it is clarified that 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.

(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974):

Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101:

Provided further that the assessment under this section shall be completed within the period specified in section 14.”

Even a casual look at the provisions, it may fairly be inferred that the Board is under obligation to conduct a preliminary assessment to form an opinion as regard his mental and physical capacity to commit such offence and further as regard ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence. The proceeding/inquiry titled as “preliminary assessment” is an independent inquiry different from ‘orders’ which can be passed in respect of such child under section 18 of the J.J. Act, 2015. Only after forming an opinion in this regard order under section 18(3) of J.J. Act, 2015 may be passed for transferring the trial to a children court having jurisdiction.

6. The section 15 of the J.J. Act, 2015 provides for the procedure which shall be followed in the matter of preliminary assessment. The application of provisions of section 18 comes thereafter. Further it may be noted that the Hon’ble Apex Court in Barun Chandra Thakur vs Master Bholu and Another in Criminal Appeal No. 950 of 2022 decided on 13.07.2022, made it obligatory on the J.J. Board to obtain a report from an expert to assess the mental and physical capacity and other requirements of section 15 of the J.J. Act, 2015 before the court can proceed any further.

7. The Apex Court in Para-62 of the aforesaid judgment observed that it was obligatory on the part of the Board to conduct preliminary assessment on four counts, as mentioned under Section 15 of the Act, however, there being no guidelines as to how the Board shall conduct such assessment, therefore, it has to largely depend upon its own wisdom. Thereafter, the Apex Court noticed the provisions of Rule 10A of the Juvenile Justice Rules Model Rules, 2016in Para-64 of the judgment observing that the Board is empowered to take the assistance of psychologist/psychiatrist and other experts who had experience of working with the children under difficult circumstances. The Apex Court did not agree with the opinion that the mental capacity and ability to understand the consequences of the offences were one and the same. The Apex Court said that it shall include not only immediate consequences but also the far reaching consequences. While dealing with the phrase “the ability to understand the consequences of the offence”, the Apex Court observed in Para-68 that the consequences of the offence could be numerous and manifold which cannot be just linked to a framework; and for this purpose, the overall picture as also future consequences with reference to the facts of the case are required to be constantly analysed by the Board.

8. The Apex Court further observed in Para nos. 75 and 79 of the judgment as below:

“75. It is to be noted that child psychology is a specialised branch of development psychology, its genesis is based on the premise that children and adults have a different thought process. The individualised assessment of adolescent mental capacity and ability to understand the consequences of the offence is one of the most crucial determinants of the preliminary assessment mandated by section 15 of the Act, 2015. The report of the preliminary assessment decides the germane question of transferring the case of a child between 16 to 18 years of age to the Children’s Court. This evaluation of ”mental capacity and ability to understand the consequences’ of the child in conflict with law can, in no way, be relegated to the status of a perfunctory and a routine task. The process of taking a decision on which the fate of the child in conflict with law precariously rests, should not be taken without conducting a meticulous psychological evaluation.

79. Therefore, looking to the purpose of the Act, 2015 and its legislative intent, particularly to ensure the protection of best interest of the child, the expression “may” in the proviso to Section 15(1) thereof and the requirement of taking assistance of experienced psychologists or psychosocial workers or other experts would operate as mandatory unless the Board itself comprises of at least one member who is a practicing professional with a degree in child psychology or child psychiatry. Moreover, in case the Board, in view of its own composition with at least one member, who is a practicing professional with a degree in child psychology or child psychiatry, chooses not to take such assistance, it would record specific reasons therefore.”

9. It does not appear from the material on record that the opinion of professional experts on two counts i.e., the mental capacity to commit the crime and ability to understand the consequences of the act have been elicited at any stage. As held by the Apex Court, opinion of a child psychologist or other professional dealing in child psychology or child psychiatry is mandatorily to be taken unless the Board comprises any such member, hence, it can safely be said that the impugned orders have been passed not strictly in accordance with law. The matter of preliminary assessment requires reconsideration for which it shall be appropriate that the matter be remanded to the Board to decide it afresh in the light of the observations of the Apex Court in Barun Chandra Thakur vs Master Bholu (supra).

10. In my view, therefore, this revision deserves to be allowed and is allowed as below:

(i) The impugned orders dated 03.11.2023 and 19.01.2023 are hereby set aside.

(ii) The J.J. Board is directed to conduct a fresh inquiry proceeding as provided under section 15 of the J.J. Act, 2015, in accordance with law, keeping in mind the relevant pronouncement by the Apex Court, preferably within a period of two month from the date of production of certified copy of this order and thereafter pass an order under section 18 of the J.J. Act, 2015, according to law.

11. Let a copy of the order be immediately transmitted to the court concerned.

Order Date :- 26.2.2024

Sumit Kumar

 

 

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