Punjab-Haryana High Court
Abc(Minor) vs State Of Union Territory Chandigarh on 4 December, 2024
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
120 CRR-1298-2024
Date of Decision : December 04, 2024
ABC(MINOR) -PETITIONER
V/S
STATE OF UNION TERRITORY CHANDIGARH -RESPONDENT
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Pratham Sethi, Advocate
for the petitioner.
Mr. Manish Bansal, P.P., U.T. Chandigarh with
Ms. Diksha Sharma, Advocate and
A.S.I. Rampal Singh (I.O.)
***
KULDEEP TIWARI, J. (ORAL)
1. The gravamen of the instant lis is embedded in the order dated
30.03.2024, whereby, the Principal Magistrate, Juvenile Justice Board,
Chandigarh (hereinafter referred to as the ‘J.J.B.’) has ordered to treat the
petitioner/juvenile (hereinafter referred to as the ‘C.C.L.’) as an adult and
has transferred his trial to Children’s Court having jurisdiction to try such
offences. Therefore, the C.C.L. has, by instituting the instant revision peti-
tion through his father, assailed the validity of the order 30.03.2024, besides
assailing the validity of the order dated 05.06.2024, whereby, his criminal
appeal preferred against the order dated 30.03.2024 has been dismissed by
the Judge, Fast Track Special Court-cum-Children’s Court, Chandigarh
(hereinafter referred to as the ‘Children’s Court’).
2. Before this Court proceeds to gauge the legality of the im-
pugned orders and evince any opinion thereon, it is deemed apt to initially
1 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 2
capture the factual matrix of the present case.
3. The C.C.L. has been booked in FIR No.02 dated 05.01.2024,
under Section 377 IPC and Section 6 of POCSO Act, registered at P.S. 49,
Chandigarh. The genesis of this FIR is embodied in the complaint made by
one Hira Lal (hereinafter referred to as the ‘complainant’) regarding com-
mission of anal sex with his son by the C.C.L. To be precise, the com-
plainant alleged that, on 05.01.2024, when he reached home at about 08:25
p.m., his son told him that when he was playing near his house at around
03:00 p.m., the C.C.L., who lived nearby, took the key of his cycle and pre-
tended to throw it to his house. Thereafter, on the pretext of returning the
key, the C.C.L. took the complainant’s son to his house and asked him to
suck his penis because only then he would return the key to him. Not only
this, the C.C.L. then took the complainant’s son to the other room, removed
his pants and committed anal sex.
4. After registration of FIR, the C.C.L. was apprehended and his
medical examination was got conducted. Samples of victim and the C.C.L.
were taken for forensic purpose. Statement of the victim was also recorded
under Section 164 Cr.P.C. The date of birth record of the victim and the
C.C.L. were collected. After completion of inquiry, the charge-sheet was
presented before the J.J.B.
5. The date of birth of the C.C.L. was found to be 05.09.2007 and
the alleged occurrence took place on 05.01.2024, therefore, it is nowhere
disputed that the C.C.L. was more than 16 years of age on the date of occur-
rence.
6. The J.J.B. held an inquiry as per the mandate enclosed in Sec-
2 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 3
tion 15 of The Juvenile Justice (Care and Protection of Children) Act, 2015
(hereinafter referred to as the ‘Act of 2015’) and came to a conclusion that,
the C.C.L., who is over and above 16 years of age, has attained sufficient
maturity and he is physically and mentally capable to commit such offence,
therefore, he is required to be tried as an adult. Consequently, vide the im-
pugned order dated 30.03.2024, the J.J.B. transferred the trial of C.C.L. to
the Children’s Court.
7. Fetching grievance from the order dated 30.03.2024, the C.C.L.
instituted thereagainst a criminal appeal before the Children’s Court, how-
ever, he did not succeed in his endeavour inasmuch as the yearned for relief
was declined to him by the Children’s Court by dismissing his appeal vide
order dated 05.06.2024.
8. In this way, now the C.C.L. is driven to this Court to assail the
validity of both the orders (supra).
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE C.C.L.
9. The principal argument constructed by the learned counsel for
the C.C.L. is that, both the courts below have erred in not assigning proper
weightage to the medical report dated 07.03.2024 (Annexure P-2), as be-
came submitted by the doctors of medical board, and, to the Social Investi-
gation Report dated 20.01.2024 (Annexure P-4).
10. To fortify his above made argument, the learned counsel for the
C.C.L. submits that, in the report dated 07.03.2024, the Intelligence Quo-
tient (I.Q) of the C.C.L. was assessed as 86 suggesting “Dull Average” level
of intelligence and as per this report itself, a child having IQ level of 85 to
90 falls in the age group of 14/15 years of age. Moreover, the formula to de-
3 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 4
termine IQ level is: mental age/biological age x 100. Therefore, the assess-
ment made by the medical board in its report dated 07.03.2024 is sufficient
to prove that, even as on the date of examination, the C.C.L. was having the
mental capacity of a child below 15 years of age. Not only this, even in the
Social Investigation Report dated 20.01.2024, the Probation Officer has
specifically recorded that, the C.C.L. has no knowledge or awareness about
the consequence of the act.
11. Making huge dependence upon both the reports (supra), the
learned counsel for the C.C.L. emphasizes that the mental capacity of the
C.C.L. is “Dull” and his mental age is also less than 15 years and he has no
knowledge about the consequences of the act. Both the courts below have
committed a grave error by ignoring such a vital piece of evidence, which is
available on record in the shape of reports (supra), and, which is in fact one
of the important aspects to be taken into consideration at the time of making
preliminary assessment in terms of the mandate enclosed in Section 15 of
the Act of 2015. Consequently, the impugned orders are tainted with the
vice of illegality and are bad in law.
12. The learned counsel for the C.C.L. also submits that, both the
reports (supra) were never supplied to the C.C.L./his guardian/his counsel,
rather only five minutes’ time was afforded to the C.C.L’s counsel to take a
glimpse thereof before addressing arguments. Therefore, this amounts to
gross violation of the settled principles of criminal jurisprudence, besides
violation of the General Principles laid down in Section 3 of the Act of
2015.
13. Finally, the learned counsel for the C.C.L. submits that, in the
4 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 5
order authored by the Children’s Court, a factually incorrect observation has
been recorded that, the C.C.L. has opted “Non-medical stream” in senior
secondary and as such he cannot be expected to be of below average,
whereas, the fact is that, the C.C.L. has opted “Humanities” as his stream in
senior secondary.
SUBMISSIONS OF THE LEARNED PUBLIC PROSECUTOR
14. Per contra, the learned Public Prosecutor submits that, it is not
for this Court to delve upon the exercise of making preliminary assessment
inasmuch as the limited scope of the instant revision petition is to, within
the established legal parameters, examine the legality of the impugned or-
ders drawn by the courts below.
15. In his defending the legality of the impugned orders, the
learned Public Prosecutor submits that, only after holding a detailed interac-
tion with the C.C.L. and considering the medical report as well as the Social
Investigation Report, the J.J.B. rightly concluded that the C.C.L. has enough
mental and physical capability to commit the alleged offence and he also
has the ability to understand the consequence of his act.
16. Concluding his arguments, the learned Public Prosecutor sub-
mits that, the learned counsel for the C.C.L. is unable to point out any mate-
rial illegality or perversity in the impugned orders, which may constrain this
Court to make any interference therein or in the preliminary assessment
made by the J.J.B.
ANALYSIS OF SIGNIFICANT PROVISIONS ENCAPSULATED IN
THE ACT OF 2015, AND, OF JUDICIAL PRECEDENTS GERMANE
TO DISPOSAL OF THE INSTANT REVISION PETITION
5 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 6
17. Section 3 of the Act of 2015 stipulates the fundamental princi-
ples to be borne in mind by the Board while implementing the provisions of
the said Act. Some of the relevant principles embodied in this Section are
reproduced hereunder:-
“3. General principles to be followed in administration of Act.–
The Central Government, the State Governments, [the Board, the
Committee, or] other agencies, as the case may be, while implement-
ing the provisions of this Act shall be guided by the following funda-
mental principles, namely:–
(i) Principle of presumption of innocence: Any child shall be pre-
sumed to be an innocent of any mala fide or criminal intent up to the
age of eighteen years.
XX XX XX
(iv) Principle of best interest: All decisions regarding the child shall
be based on the primary consideration that they are in the best inter-
est of the child and to help the child to develop full potential.
XX XX XX
(xvi) Principles of natural justice: Basic procedural standards of
fairness shall be adhered to, including the right to a fair hearing,
rule against bias and the right to review, by all persons or bodies,
acting in a judicial capacity under this Act.”
18. According to Section 8 of the Act of 2015, wherein becomes
enclosed the powers, functions and responsibilities of the Board, the powers
conferred on the Board by or under the said Act may also be exercised by
the High Court and the Children’s Court, when the proceedings come before
them under Section 19 or in appeal, revision or otherwise. Moreover, this
Section casts obligation upon the Board to ensure the informed participa-
tion of the child and the parent or guardian in every step of the process.
Section 8 is reproduced hereunder:-
“8. Powers, functions and responsibilities of the Board.–(1) Not-
withstanding anything contained in any other law for the time being6 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 7
in force but save as otherwise expressly provided in this Act, the
Board constituted for any district shall have the power to deal exclu-
sively with all the proceedings under this Act, relating to children in
conflict with law, in the area of jurisdiction of such Board.
(2) The powers conferred on the Board by or under this Act may also
be exercised by the High Court and the Children’s Court, when the
proceedings come before them under section 19 or in appeal, revi-
sion or otherwise.
(3) The functions and responsibilities of the Board shall include–
(a) ensuring the informed participation of the child and the
parent or guardian, in every step of the process;
(b) ensuring that the child’s rights are protected throughout
the process of apprehending the child, inquiry, aftercare and reha-
bilitation;
(c) ensuring availability of legal aid for the child through the
legal services institutions;
(d) wherever necessary the Board shall provide an interpreter
or translator, having such qualifications, experience, and on pay-
ment of such fees as may be prescribed, to the child if he fails to un-
derstand the language used in the proceedings;
(e) directing the Probation Officer, or in case a Probation Of-
ficer is not available to the Child Welfare Officer or a social worker,
to undertake a social investigation into the case and submit a social
investigation report within a period of fifteen days from the date of
first production before the Board to ascertain the circumstances in
which the alleged offence was committed;
(f) adjudicate and dispose of cases of children in conflict with
law in accordance with the process of inquiry specified in section
14;
(g) transferring to the Committee, matters concerning the
child alleged to be in conflict with law, stated to be in need of care
and protection at any stage, thereby recognising that a child in con-
flict with law can also be a child in need of care simultaneously and
there is a need for the Committee and the Board to be both involved;
(h) disposing of the matter and passing a final order that in-
cludes an individual care plan for the child’s rehabilitation, includ-
7 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 8
ing follow up by the Probation Officer or the District Child Protec-
tion Unit or a member of a non-governmental organisation, as may
be required;
(i) conducting inquiry for declaring fit persons regarding care
of children in conflict with law;
(j) conducting at least one inspection visit every month of res-
idential facilities for children in conflict with law and recommend
action for improvement in quality of services to the District Child
Protection Unit and the State Government;
(k) order the police for registration of first information report
for offences committed against any child in conflict with law, under
this Act or any other law for the time being in force, on a complaint
made in this regard;
(l) order the police for registration of first information report
for offences committed against any child in need of care and protec-
tion, under this Act or any other law for the time being in force, on a
written complaint by a Committee in this regard;
(m) conducting regular inspection of jails meant for adults to
check if any child is lodged in such jails and take immediate mea-
sures for transfer of [that child to an observation home or place of
safety, as the case may be]; and
(n) any other function as may be prescribed.”
19. Proceeding further, the provision which is of dire importance in
the case at hand is encapsulated in Section 15 of the Act of 2015 inasmuch
as therethrough becomes cast an obligation upon the Board to make prelimi-
nary assessment into heinous offence alleged to have been committed by a
child, who has completed or is above the age of 16 years. This preliminary
assessment appertains to the: (i) mental and physical capacity of the child to
commit such offence; (ii) ability of the child to understand the conse-
quences of the offence; (iii) circumstances in which the child allegedly com-
mitted the offence. Moreover, since the exercise of making preliminary as-
sessment is a tedious task, therefore, the Board may take the assistance of
8 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 9
experienced psychologists or psycho-social workers or other experts. No-
tably, the explanation attached to this Section clearly postulates that the ex-
ercise of preliminary assessment is not a trial but is solely to assess the ca-
pacity of child to commit and understand the consequences of the al-
leged offence (emphasis supplied). Section 15 is reproduced hereinafter:-
“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 un-
derstand 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 capac-
ity 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 fol-
low 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.”
20. In the event of the Board arriving at a conclusion, after prelimi-
nary assessment, that the child is to be tried as an adult, then in terms of
Section 18(3) of the Act of 2015, the Board may transfer the trial of the case
to the Children’s Court having jurisdiction to try such offences. Section 18
9 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 10
is extracted hereunder:-
“18. Orders regarding child found to be in conflict with law.–(1)
Where a Board is satisfied on inquiry that a child irrespective of age
has committed a petty offence, or a serious offence, or a child below
the age of sixteen years has committed a heinous offence, [or a child
above the age of sixteen years has committed a heinous offence and
the Board has, after preliminary assessment under Section 15, dis-
posed of the matter] then, notwithstanding anything contrary con-
tained in any other law for the time being in force, and based on the
nature of offence, specific need for supervision or intervention, cir-
cumstances as brought out in the social investigation report and past
conduct of the child, the Board may, if it so thinks fit,–
(a) allow the child to go home after advice or admonition by
following appropriate inquiry and counselling to such child and to
his parents or the guardian;
(b) direct the child to participate in group counselling and
similar activities;
(c) order the child to perform community service under the
supervision of an organisation or institution, or a specified person,
persons or group of persons identified by the Board;
(d) order the child or parents or the guardian of the child to
pay fine:
Provided that, in case the child is working, it may be ensured
that the provisions of any labour law for the time being in force are
not violated;
(e) direct the child to be released on probation of good con-
duct and placed under the care of any parent, guardian or fit person,
on such parent, guardian or fit person executing a bond, with or
without surety, as the Board may require, for the good behaviour
and child’s well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good con-
duct and placed under the care and supervision of any fit facility for
ensuring the good behaviour and child’s well-being for any period
not exceeding three years;
(g) direct the child to be sent to a special home, for such pe-
riod, not exceeding three years, as it thinks fit, for providing refor-
10 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 11
mative services including education, skill development, counselling,
behaviour modification therapy, and psychiatric support during the
period of stay in the special home:
Provided that if the conduct and behaviour of the child has
been such that, it would not be in the child’s interest, or in the inter-
est of other children housed in a special home, the Board may send
such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-section (1),
the Board may, in addition pass orders to–
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing
at a specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section 15
pass an order that there is a need for trial of the said child as an
adult, then the Board may order transfer of the trial of the case to
the Children’s Court having jurisdiction to try such offences.”
21. The Hon’ble Supreme Court, in its verdict rendered in “Barun
Chandra Thakur Vs. Master Bholu and Another”, 2022 SCC OnLine SC
870, observed that the task of preliminary assessment is a delicate task with
requirement of expertise and has its own implications as regards trial of the
case. Consequently, directions were passed upon the Central Government
for formulating specific guidelines in this regard.
22. In compliance to the directions (supra) rendered by the Hon’ble
Supreme Court, the National Commission for Protection of Child Rights is-
sued guidelines in April 2023 for conducting preliminary assessment under
Section 15 of the Act of 2015. Some of the relevant guidelines are repro-
duced hereinafter:-
“1.2 General Principles
11 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 12
The fundamental principles of care and protection of children that
guide the implementation of J.J. Act, 2015 are also significant for
these guidelines. These guiding principles are as follows-
• Principle of presumption of innocence: Any child shall be pre-
sumed to be an innocent of any mala fide or criminal intent up to the
age of eighteen years.
• Principle of dignity and worth: All human beings shall be
treated with equal dignity and rights.
• Principle of participation: Every child shall have a right to be
heard and to participate in all processes and decisions affecting his
interest and the child’s views shall be taken into consideration with
due regard to the age and maturity of the child.
• Principle of best interest: All decisions regarding the child
shall be based on the primary consideration that they are in the best
interest of the child and to help the child to develop full potential.
• Principle of family responsibility: The primary responsibility
of care, nurture and protection of the child shall be that of the bio-
logical family or adoptive or foster parents, as the case may be.
• Principle of safety: All measures shall be taken to ensure that
the child is safe and is not subjected to any harm, abuse or maltreat-
ment while in contact with the care and protection system, and there-
after.
• Positive measures: All resources are to be mobilised includ-
ing those of family and community, for promoting the well-being, fa-
cilitating development of identity and providing an inclusive and en-
abling environment, to reduce vulnerabilities of children and the
need for intervention under this Act.
• Principle of non-stigmatising semantics: Adversarial or ac-
cusatory words are not to be used in the processes pertaining to a
child.
• Principle of non-waiver of rights: No waiver of any of the
right of the child is permissible or valid, whether sought by the child
or person acting on behalf of the child, or a Board or a Committee
and any non-exercise of a fundamental right shall not amount to
waiver.
• Principle of equality and non-discrimination: There shall be
12 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 13
no discrimination against a child on any grounds including sex,
caste, ethnicity, place of birth, disability and equality of access, op-
portunity and treatment shall be provided to every child.
• Principle of right to privacy and confidentiality: Every child
shall have a right to protection of his privacy and confidentiality, by
all means and throughout the judicial process.
• Principle of institutionalisation as a measure of last resort: A
child shall be placed in institutional care as a step of last resort after
making a reasonable inquiry.
• Principle of repatriation and restoration: Every child in the
juvenile justice system shall have the right to be re-united with his
family at the earliest and to be restored to the same socio-economic
and cultural status that he was in, before coming under the purview
of this Act, unless such restoration and repatriation is not in his best
interest.
• Principle of fresh start: All past records of any child under
the Juvenile Justice system should be erased except in special cir-
cumstances.
• Principle of diversion: Measures for dealing with children in
conflict with law without resorting to judicial proceedings shall be
promoted unless it is in the best interest of the child or the society as
a whole.
• Principles of natural justice: Basic procedural standards of
fairness shall be adhered to, including the right to a fair hearing,
rule against bias and the right to review, by all persons or bodies,
acting in a judicial capacity under the J.J. Act.”
XX XX XX
2.2 Criteria for conducting preliminary assessment- There are two
essential conditions that calls for preliminary assessment under sec-
tion 15 of the JJ Act, 2015. First, the crime that has taken place is in
the category of heinous crime as defined in the JJ Act, 2015. Second,
the child who has allegedly committed the crime is in the age group
of 16-18 years. If the offence is allegedly committed by more than
one child, preliminary assessment of each child will be carried out
separately.
XX XX XX
13 of 28
::: Downloaded on - 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 14
2.4 Determinants of a preliminary assessment- The preliminary as-
sessment has to be carried out in terms of the following four determi-
nants-
a. physical capacity of the child to commit alleged offence-
Child’s locomotor abilities and capacities, particularly with
regard to gross motor functions (such as walking, running,
lifting, throwing…such abilities as would be required to en-
gage in most antisocial activities due to which children come
into conflict with the law). The expert shall not delve into as-
sessing the physical age of the child as a part of the prelimi-
nary assessment. The age determination is concluded before
the initiation of preliminary assessment by the JJB and there-
fore, the experts shall not repeat the process at this stage. The
role of the experts with regard to assessing physical capacity
of the child to commit the alleged offence is only limited to as-
sessing the aspects as have been mentioned above in light of
the physical capacities that may be required to carry out the
offence.
b. mental capacity of the child to commit alleged offence-
Child’s ability to make social decisions and judgments, for
these are the critical executive functioning abilities that oper-
ate in the social context that offense takes place in. Thus, re-
porting on the child’s “mental capacity” would draw on all
the variables in the mental health and psychosocial assess-
ment including substance abuse problems, life skills deficits,
neglect or poor supervision by family or poor role models; ex-
perience of abuse and trauma; mental health disorder or
other (neuro) developmental disabilities such as attention
deficit hyperactivity disorder; intellectual disability.
c. the circumstances in which the child allegedly committed
the offence- Psychosocial vulnerabilities, including life events
and mental health problems that the child is afflicted with,
i.e., factors relating to family, school, peer relationships,
trauma and abuse, mental health, and substance use. Circum-
stances, therefore, do not refer merely to the immediate cir-
cumstances of the offense itself, i.e., the last event that oc-
14 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 15
curred and led the child into conflict with the law. In fact, the
offense behavior, including its immediate circumstances, is a
(cumulative) consequence of a whole plethora of other cir-
cumstances that have been occurring over relatively long time
periods of the child’s life (perhaps since early childhood).
Thus, we take a longitudinal (versus a cross-sectional) per-
spective of circumstances of the offense.
d. ability to understand the consequences of the offence-
Child’s knowledge and/or understanding of social conse-
quences (what other people will say or how they will perceive
the behaviour and consequently what opinion society would
form about the child including labelling and stigmatization),
interpersonal consequences (how the behaviour might affect
personal relationships in terms of loss of trust, affection and
respect of family and friends) and legal consequences of their
actions (knowledge of relevant laws on sexual abuse/rape/
robbery/ dacoity etc. and violation of rules leading to serious
consequences for the child in terms of punishment).
XX XX XX
3.1 The Juvenile Justice Board (JJB) is solely responsible for con-
ducting preliminary assessment as per section 14 (5) (f) (ii) and Sec-
tion 15(1) of the Act.
3.2 In case the Board does not have at least one member who is a
practicing professional with a degree in child psychology or child
psychiatry, the Board shall take assistance of psychologists or psy-
cho-social workers or other experts who have experience of working
with children in difficult circumstances. In such cases the Board
would record specific reason(s) for the same.
3.3 In cases where the Board needs to consult experts for prelimi-
nary assessment, the Board may take assistance from experts associ-
ated with any District Mental Health Programme or an expert from
a Mental Health Institution in the District or outside the District.
District Magistrate (DM) will provide the list of such experts and In-
stitutions.
3.4 Qualification of experts-The psychologists and other experts who
are asked to assist JJB in conducting the Preliminary assessment,15 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 16
shall be possessing qualification as required to be a Member of the
JJB under the JJ Act, 2015, that is as follows-
• a practicing professional with a degree in child psychology or psy-
chiatry.
• No expert shall be included in the process of conducting the pre-
liminary assessment, if he —
• has any past record of violation of human rights or child
rights;
• has been convicted of an offence involving moral turpitude,
and such conviction has not been reversed or has not been
granted full pardon in respect of such offence;
• has been removed or dismissed from service of the Central
Government or a State Government or an undertaking or cor-
poration owned or controlled by the Central Government or a
State Government;
• has ever indulged in child abuse or employment of child
labour or any other violation of human rights or immoral act.
3.5 Non-availability of experts in the District- In case trained psy-
chologists and experts are not available within a given District, ser-
vices of In-Patient Departments may be availed from other Districts.
The State Child Protection Society (SCPS) with help of the Health
Department shall issue a list of Institutes.
XX XX XX
4.4 Other information to be considered while carrying out prelimi-
nary assessment- During the preliminary assessment, the Board and
experts shall also analyze and take into consideration the following-
• Social Investigation Report (SIR)- The Board directs the Proba-
tion Officer, or in case a Probation Officer is not available to the
Child Welfare Officer or a social worker, to undertake a social in-
vestigation into the case and submit a social investigation report,
within a period of fifteen days from the date of first production be-
fore the Board [section 8(3)(e)]
• Social Background Report- Child Welfare Police Officer of the
police station, or the special juvenile police unit to which such
child is brought, shall, as soon as possible after apprehending the
child, inform he probation officer, or if no probation officer is16 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 17
available, a Child Welfare Officer, for preparation and submission
within two weeks to the Board, a social investigation report con-
taining information regarding the antecedents and family back-
ground of the child and other material circumstances likely to be of
assistance to the Board for making the inquiry [Section 13(1)(ii)]
• Individual Care Plan (ICP)- The Board should also consider the
Individual Care Plan (ICP) for the child in conflict with law con-
cerned, prepared by a Probation Officer or Child Welfare Officer
or a recognised voluntary organisation on the basis of interaction
with the child and his family, where possible. Thereafter, at the
time of final orders an amended/updated ICP may be submitted to
the Board/Children’s Court.
• Witness report by CWPO- In cases of heinous offences alleged to
have been committed by a child, who has completed the age of six-
teen years, the Child Welfare Police Officer shall produce the
statement of witnesses recorded by him and other documents pre-
pared during the course of investigation within a period of one
month from the date of first production of the child before the
Board, a copy of which shall also be given to the child or parent or
guardian of the child [Rule 10(5)].
• Interaction with parents/guardians; staff of school or other institu-
tion attended by the child; peer group; neighbours or any other
person deemed appropriate for giving insights regarding the child
within the scope of four determinants as given at point 7 above.”
23. The essence of the hereinabove alluded to provisions of law as
well as the guidelines framed by the Central Government is that, when a
child between the age group of 16 to 18 years, who is alleged to have com-
mitted a heinous offence, is brought before the J.J.B., the latter is required
to, after making preliminary assessment as regards (i) physical and mental
capacity of the child to commit alleged offence; (ii) ability of the child to
understand the consequences of the offence; and (iii) circumstances in
which the child allegedly committed the offence; pass an order as to
17 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 18
whether the child is to be tried by the J.J.B. or by the Children’s Court as an
adult.
24. The preliminary assessment has a wider implication upon the
child inasmuch as in the event of the J.J.B., post making preliminary assess-
ment, declaring the child to be tried as an adult by the Children’s Court,
there are two major consequences. First is that, the sentence or the punish-
ment can go up to life imprisonment if the child is tried as an adult,
whereas, if the child is tried by the J.J.B. as a child, the maximum sentence
that can be awarded is three years. The second major consequence is that, if
the child is tried as a child by the J.J.B, then under Section 24(1), he would
not suffer any disqualification attached to the conviction of an offence,
whereas, the said removal of disqualification would not be available to a
child tried as an adult.
TESTING THE LEGALITY OF THE IMPUGNED ORDERS ON THE
ANVIL OF THE HEREINABOVE DISCUSSED PROVISIONS OF
LAW, AND, EXAMINING AS TO WHETHER THE J.J.B. HAS CON-
DUCTED THE EXERCISE OF MAKING PRELIMINARY ASSESS-
MENT WITHIN THE SETTLED PRINCIPLES OF LAW
25. For the purpose of examining as to whether the preliminary as-
sessment has been carried out as required under law, this Court has to test
the validity thereof on the following four aspects, as become mandated in
Section 15 of the Act of 2015.
(I) PHYSICAL CAPACITY OF THE CHILD TO COMMIT
SUCH OFFENCE;
(II) MENTAL CAPACITY OF THE CHILD TO COMMIT
18 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 19
SUCH OFFENCE;
(III) ABILITY OF THE CHILD TO UNDERSTAND THE
CONSEQUENCES OF THE OFFENCE;
(IV) CIRCUMSTANCES IN WHICH THE CHILD AL-
LEGEDLY COMMITTED THE OFFENCE.
(I) PHYSICAL CAPACITY OF THE CHILD TO COMMIT SUCH OF-
FENCE
26. In order to assess the physical capacity of the C.C.L. to commit
the alleged offence, the J.J.B. mainly relied upon its own personal observa-
tions, besides relying upon the social investigation report and medical re-
port. After making interaction with the C.C.L., putting exhaustive questions
to him and also gauging his physical appearance, the J.J.B. concluded that
the C.C.L. is a fit person and he has enough physical capacity to commit the
alleged offence.
27. Since there is no other evidence on record suggesting contrary
to the conclusion (supra), therefore, this Court finds no illegality in the pre-
liminary assessment on this aspect.
(II) MENTAL CAPACITY OF THE CHILD TO COMMIT SUCH OF-
FENCE;
28. Insofar as this aspect is concerned, the affirmative conclusion
of the J.J.B. in this regard is anchored upon the social investigation report
and medical report. The J.J.B. has concluded the C.C.L. to have enough
mental capacity to commit the alleged offence.
29. This Court has perused the medical report dated 07.03.2024, as
became prepared by the Department of Psychiatry, Government Medical
19 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 20
College and Hospital, Chandigarh, after assessing the mental capacity of the
C.C.L. In this medical report, relevant portion whereof is extracted here-
inafter, the Intelligence Quotient (IQ) of the C.C.L. is revealed to be 86
suggesting “Dull Average” level of intelligence.
“The assessment dated 7/Mar/2024 revealed intelligence quotient
(IQ) of 86 Suggesting dull average level of intelligence.
On Mental Status examination (MSE): Well kempt, cooperative and
communicative, well aware of surroundings, rapport could be estab-
lished, eye contact maintained, could understand the questions being
asked and give relevant replies. Appeared sad and was weeping
during the interview. No other active psychopathology elicited, at
present.” (emphasis supplied)
30. Therefore, when as per medical jurisprudence, a child having
Intelligence Quotient (IQ) of 85 to 90 falls in the age group of 14/15 years,
hence the conclusion of the J.J.B. that the C.C.L., whose Intelligence Quo-
tient (IQ) is 86, has enough mental capacity to commit the alleged offence
requires reconsideration.
31. At this stage, it would also be apt to refer to the hereunder re-
produced observations, as rendered by the Hon’ble Supreme Court in
Barun Chandra Thakur’s case (supra).
“65. While considering a child as an adult one needs to look at his/
her physical maturity, cognitive abilities, social and emotional com-
petencies. It must be mentioned here that from a neurobiological
perspective, the development of cognitive, behavioural attributes like
the ability to delay gratification, decision making, risk taking, impul-
sivity, judgement, etc. continues until the early 20s. It is, therefore,
all the more important that such assessment is made to distinguish
such attributes between a child and an adult.
66. Cognitive maturation is highly dependent on hereditary factors.
Emotional development is less likely to affect cognitive maturation.
However, if emotions are too intense and the child is unable to regu-
20 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 21
late emotions effectively, then intellectual insight/knowledge may
take a back seat.
67. We are in agreement with the reasoning given by the High Court
that further assessment ought to have been carried out once the psy-
chologist had recommended so and had also suggested the name of
the institute. The Board and the Children’s Court apparently were
of the view that the mental capacity and the ability to understand the
consequences of the offence were one and the same, that is to say
that if the child had the mental capacity to commit the offence, then
he automatically had the capacity to understand the consequences of
the offence. This, in our considered opinion, is a grave error com-
mitted by them.
70. A child with average intelligence/IQ will have the intellectual
knowledge of the consequences of his actions. But whether or not he
is able to control himself or his actions will depend on his level of
emotional competence. For example, risky driving may result in an
accident. But if emotional competence is not high, the urge for thrill
seeking may get the better of his intellectual understanding.
71. Children may be geared towards more instant gratification and
may not be able to deeply understand the long-term consequences of
their actions. They are also more likely to be influenced by emotion
rather than reason. Research shows that young people do know risks
to themselves. Despite this knowledge, adolescents engage in riskier
behaviour than adults (such as drug and alcohol use, unsafe sexual
activity, dangerous driving and/or delinquent behaviour). While they
do consider risks cognitively (by weighing up the potential risks and
rewards of a particular act), their decisions / actions may be more
heavily influenced by social (e.g. peer influences) and/or emotional
(e.g. impulsive) tendencies. In addition, the lack of experience cou-
pled with the child’s limited ability to deeply understand the long-
term consequences of their actions can lead to impulsive / reckless
decision making.”
(III) ABILITY OF THE CHILD TO UNDERSTAND THE CONSE-
QUENCES OF THE OFFENCE;
32. On this aspect also, although an affirmative finding has been
21 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 22
recorded by the J.J.B., however, a survey of the Social Investigation Report
dated 20.01.2024 reveals that, the Probation Officer has recorded in unam-
biguous terms that, reasons/contribution factors for the offence are
parental neglect, non attentive care of father and not knowledge about
the consequence of the act. The relevant portion of the Social Investigation
Report is reproduced hereunder:-
“Analysis of the case, including reasons/contributions factors for the
offence: Parental neglect, non attentive care of father and not knowl-
edge about the consequences of the act.”
33. The Hon’ble Supreme Court has, in Barun Chandra Thakur’s
case (supra), clearly held that, the consequence of an offence would not just
be confined to the immediate consequence of the offence or that the occur-
rence of the offence would only have its consequence upon the victim but it
would also take within its ambit the consequence which may fall on the
child and his family, and that too, not only immediate consequence but also
the far reaching consequence in future. The relevant observations are repro-
duced hereinafter.
“68. The language used in section 15 is “the ability to understand
the consequences of the offence”. The expression used is in plurality
i.e., “consequences” of the offence and, therefore, would not just be
confined to the immediate consequence of the offence or that the oc-
currence of the offence would only have its consequence upon the
victim but it would also take within its ambit the consequences which
may fall upon not only the victim as a result of the assault, but also
on the family of the victim, on the child, his family, and that too not
only immediate consequences but also the far-reaching conse-
quences in future. Consequences could be in material/physical form
but also affecting the mind and the psychology of the child for all
times to come. The consequences of the offence could be numerous
and manifold which cannot be just linked to a framework; and, for22 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 23
this purpose, the overall picture as also future consequences with
reference to the facts of the case are required to be consciously ana-
lysed by the Board.
69. Consequences for the victim could be his death, or permanent
physical disability, or an injury which could be repaired or recov-
ered; the impact of the offence on the mind of the victim may be pro-
longed and continue for his lifetime; the impact on the family and
friends of the victim, both mental and financial; consequence on the
child going into incarceration; mental impact on the child, it could
be repentance or remorse for life, the social stigma cast on the child
and his family members; the consequences of litigating and so many
other things which would be difficult to adumbrate.”
34. It is not under dispute that, the right of the victim is one of the
important aspects to be kept in mind by the J.J.B. at the time of conducting
proceedings under the Act of 2015, however, it is also equally important to
apply all the safeguards provided under the Act. The object behind enact-
ment of the Act of 2015 is not to punish the juveniles but to provide them
such an atmosphere so that they can be reformed and ultimately be re-ad-
justed in the mainstream of the society.
35. Moreover, the Hon’ble Supreme Court has, in Barun Chandra
Thakur’s case (supra), has made it mandatory to, while making preliminary
assessment, take the assistance of experienced psychologists or psycho-so-
cial workers or other experts. The relevant observations are extracted here-
inafter.
“74. The world acknowledges that children in conflict with law
should be treated differently than adults in conflict with law. The
reason is that the mind of the child has not attained maturity and it is
still developing. Therefore, the child should be tested on different pa-
rameters and should be given an opportunity of being brought into
the main stream if, during his juvenility, has acted in conflict with
law. To understand psychology of the child, huge rounds of studies23 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 24
have been made not only recently but from age old times and child
psychology is a subject which is being studied world over and there
are institutes specifically dealing with the developments and re-
search on the said subject. The enactments dealing with children
are enacted world over.
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 individu-
alised assessment of adolescent mental capacity and ability to under-
stand the consequences of the offence is one of the most crucial de-
terminants 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 per-
functory 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.
76. As already noticed, the Board consists of three members, one is a
Judicial Officer First Class and two social workers, one being a
woman. The social worker appointed as a member could be having
a degree in child psychology or psychiatry but it is not necessary. As
such, the constitution of the Board may not necessarily be having an
expert child psychologist. It is for all the above reasons that it has
been provided not only in sections 15 and 101(2) but also under the
Model Rules that assistance may be taken from an expert psycholo-
gist. Having regard to the framework of the Act, 2015 and the Model
Rules and the purpose of preliminary assessment in terms of Section
15 as also looking to the varied composition of the Board, we are of
the view that where the Board is not comprising of a practicing pro-
fessional with a degree in child psychology or child psychiatry, the
expression “may” in the proviso to section 15(1) would operate in
mandatory form and the Board would be obliged to take assistance
of experienced psychologists or psychosocial workers or other ex-
24 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 25
perts. However, in case the Board comprises of at least one such
member, who has been a practicing professional with a degree in
child psychology or child psychiatry, the Board may take such assis-
tance as may be considered proper by it; and in case the Board
chooses not to take such assistance, it would be required of the
Board to state specific reasons therefor.
79. Therefore, looking to the purpose of the Act, 2015 and its legisla-
tive 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 psycholo-
gists 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 profes-
sional with a degree in child psychology or child psychiatry, chooses
not to take such assistance, it would record specific reasons there-
for.”
36. Consequently, when the Social Investigation Report embodies
a vivid finding regarding the C.C.L. being ignorant about the consequence
of the act, therefore, the said report ought not to have been ignored by the
J.J.B., rather it should have been purveyed equal importance before arriving
at any conclusion on the aspect at hand, inasmuch as, the Hon’ble Supreme
Court has, in Barun Chandra Thakur’s case (supra), already observed that
the mental capacity and ability to understand the consequence of the offence
is not one and the same thing. In case, even if the child had the mental ca-
pacity to commit the alleged offence, then too it would not be construed that
he automatically had the capacity to understand the consequence of his act.
In the instant case, it is clearly spelt out by the Probation Officer in the So-
cial Investigation Report that, the petitioner did not possess the capacity to
25 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 26
understand the consequence of the alleged offence. Therefore, the J.J.B.
ought to have, instead of exercising the power under Section 18(3) of the
Act of 2015, resorted to the provisions of Section 18(1), the prime object
whereof is to ensure the rehabilitation and reintegration of the C.C.L. into
the society.
37. At this stage, this Court is reminded of a poetry verse befitting
the case at hand by a renowned poet Nida Fazli.
“Jin Charaaghon Ko Hawaon Ka Koi Khauf Nahi
Un Charaaghon Ko Hawaon Se Bachaya Jaye”
(Those lamps that are not fearful of strong winds, they must be
protected from the winds, let’s do that)
38. Therefore, the issue as to whether the child had the ability to
understand the consequences of the offence also requires reconsideration.
(IV) CIRCUMSTANCES IN WHICH THE CHILD ALLEGEDLY COM-
MITTED THE OFFENCE.
39. Insofar as this aspect is concerned, the Social Investigation Re-
port voices that, the C.C.L. is the victim of parental neglect inasmuch as the
C.C.L. is well attached with his mother, however, she is residing in her na-
tive village, and, his father did not take care well of him.
40. It also surges forth from the Social Investigation Report that,
the C.C.L. is an introverted personality character such as self judgmental at-
titude, focusing inner thoughts and ideas, self aware thinking and he does
not like group work.
41. All the above observations have been clearly ignored by the
J.J.B. while making preliminary assessment. The circumstances prevailing
around the C.C.L. are one of the important factors to be borne in mind for
26 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552
CRR-1298-2024 27
the purpose of making preliminary assessment in terms of Section 15.
42. It would also be apt to record here that, apart from the prelimi-
nary assessment being replete with the hereinabove discussed infirmities
and irregularities, the basic procedural standards of fairness encapsulated in
Section 3 of the Act of 2015, including the right to a fair hearing, rule
against bias and right to review, have also not been adhered to by the J.J.B.
Moreover, Section 8(3) of the Act of 2015, which imposes obligation upon
the J.J.B. to ensure informed participation of the child and parent or
guardian at every step of the process, has also been infringed, inasmuch as,
the C.C.L. and his parent or guardian were never made to participate at any
stage of the process. Even the medical report and social investigation report
were also not provided to them well before in time, rather only five min-
utes’ time was afforded to peruse the reports before addressing arguments.
This Court is of the opinion that, the J.J.B. ought to have provided the docu-
ments/reports to the C.C.L.’s parent/counsel well before in time, thereby en-
abling the latter to make proper assistance.
43. Gainful reference can be made to the hereinafter extracted para-
graphs of the verdict rendered in Barun Chandra Thakur’s case (supra).
“52. Maintaining confidentiality has a different purpose but in no
case can it be said that to maintain confidentiality, the relevant ma-
terial would not be provided to the child or his guardian or parents.
It would be in complete contravention of the settled principles of
criminal jurisprudence. Concept of confidentiality used in section 99
is to prevent the reports from coming in public domain or shared in
public. Its availability will be confined to the parties to the proceed-
ings and the parties should also refrain from sharing it with third
parties. Section 99(2) begins with the non obstante clause and pro-
ceeds to direct that the victim should not be denied access to the case
report, orders and relevant papers. Once the legislature’s intention
is to provide material to the victim there could never be an intention
in the name of confidentiality to deny such access to the records to27 of 28
::: Downloaded on – 21-12-2024 06:12:40 :::
Neutral Citation No:=2024:PHHC:168552CRR-1298-2024 28
the child or his parents or guardians. The Board and the Children’s
Court committed an illegality in not providing the documents as de-
manded by misinterpreting section 99 of the Act, 2015.
58. In view of the above, the argument of Mr. Vikramjit Banerjee,
learned counsel for CBI, on two counts needs to be rejected. Firstly,
rule 10(5) of the Model rules should be read down as being in con-
flict with section 99 of the Act, 2015 and secondly, that no material
collected during investigation could be provided to the accused till
such time the police report under section 173(2) Cr.P.C. is filed and
the cognizance is taken by the Magistrate under section 190 and the
stage of section 207/208 Cr.P.C. is reached. The Act, 2015, being a
special Act, will have an overriding effect over general procedure
prescribed under the Cr.P.C.. The provisions of the Cr.P.C. would
be applicable so long and so far as they are not in conflict with the
special provisions contained in the Act, 2015.”
FINAL ORDER
44. In summa, this Court has no hesitation to conclude that, both
the impugned orders require interference by this Court inasmuch as they
have failed to pass the test of legality on the anvil of the hereinabove dis-
cussed settled principles of law. Therefore, the instant revision petition is
allowed and the orders dated 30.03.2024 and 05.06.2024 are set aside. The
case is remanded to the J.J.B. for making preliminary assessment afresh by
adhering to the hereinabove laid down legal principles and within the time-
frame prescribed in the relevant guidelines of the Central Government.
(KULDEEP TIWARI)
December 04, 2024 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
28 of 28
::: Downloaded on - 21-12-2024 06:12:40 :::