BARUN CHANDRA THAKUR versus MASTER BHOLU & ANR. on 13 July 2022

[2022] 10 S.C.R. 595

BARUN CHANDRA THAKUR

v.

MASTER BHOLU & ANR.

(Criminal Appeal No. 950 of 2022)

JULY 13, 2022

[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2015– s.15 – Proviso to s. 15(1) – Directory or Mandatory – Held: Wellsettled principle of interpretation that the word ‘may’ when used ina legislation by itself does not connote a directory meaning – If in aparticular case, in interest of equity and justice it appears to thecourt that the intent of the legislature is to convey a statutory duty,then the use of the word “may” will not prevent the Court fromgiving it a mandatory colour – Looking to the purpose of the Act,2015 and its legislative intent, particularly to ensure the protectionof best interest of the child, the expression “may” in the proviso tos.15(1) thereof and the requirement of taking assistance ofexperienced psychologists or psycho-social workers or other expertswould operate as mandatory unless the Board itself comprises of atleast one member who is a practicing professional with a degree inchild psychology or child psychiatry – Moreover, in case the Board,in view of its own composition with at least one member, who is apracticing professional with a degree in child psychology or childpsychiatry, chooses not to take such assistance, it would recordspecific reasons therefor.

Juvenile Justice (Care and Protection of Children) Act, 2015– s.15 – Preliminary assessment under – Language used in s.15 is“the ability to understand the consequences of the offence” – Theexpression used is in plurality i.e., “consequences” of the offenceand, therefore, would not just be confined to the immediateconsequence of the offence – Consequences could be in material /physical form but also affecting the mind and the psychology of thechild for all times to come – Individualised assessment of adolescentmental capacity and ability to understand the consequences of theoffence is one of the most crucial determinants of the preliminaryassessment mandated by s.15 – The report of the preliminaryassessment decides the germane question of transferring the case Aof a child between 16 to 18 years of age to the Children’s Court –This evaluation of ‘mental capacity and ability to understand theconsequences’ of the child in conflict with law can, in no way, berelegated to the status of a perfunctory and a routine task – Theprocess of taking a decision on which the fate of the child in conflictwith law precariously rests, should not be taken without conductingBa meticulous psychological evaluation.

Juvenile Justice (Care and Protection of Children) Act, 2015– Social Investigation Report (SIR) – Relevance – Held: Preparationof SIR is a statutory requirement for every child in conflict with law,which is to be prepared by the Probation Officer or any other agencyCas may be directed by the Juvenile Justice Board – The object ofgetting an SIR prepared is to obtain as much as possible informationabout the background of the child – SIR is a relevant material to beconsidered by the Board to take a decision while passing any ordersregarding bail or after inquiry or preliminary assessment.

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Conclusion

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Juvenile Justice (Care and Protection of Children) Act, 2015– Juvenile Justice (Care and Protection of Children) Model Rules,2016 – Timeline provided for the inquiry, submission of SocialInvestigation Report (SIR), preliminary assessment and investigationunder the Act, 2015 and the Model Rules – Object and Rationale –EHeld: The timeline given under the various provisions, has arationale – The SIR to be submitted within fifteen days wouldfacilitate the Board in taking a decision on the request for bail atthe earliest – The period of one month given under r.10(5) is tofacilitate the Board to take a decision may be on a pending bailmatter or for preliminary assessment for which three months’ time isFprovided – The completion of inquiry within four months or anyextended period is to ensure that a child is not subjected tounnecessary long and lengthy processes of trials and inquiries andthat the matter is taken to its logical conclusion at the earliest.

Juvenile Justice (Care and Protection of Children) Act 2015G– s.15 – Task of preliminary assessment u/s.15 is a delicate taskwith requirement of expertise and has its own implications as regardstrial of the case – Appropriate and specific guidelines in this regard– Central Government and the National Commission for Protectionof Child Rights and the State Commission for Protection of ChildHRights to consider issuing guidelines or directions which may assist and facilitate the Juvenile Justice Board in making preliminaryassessment u/s.15.

Dismissing the appeals, the Court

HELD: 1. The consequences of being tried as an adult areserious in nature and have a lasting effect for the entire life of thechild. It is well settled that any order that has serious civilconsequences, reasonable opportunity must be afforded. Thequestion is of what would be a reasonable opportunity in a casewhere a preliminary assessment is to be made by the JuvenileJustice Board under Section 15 the Juvenile Justice (Care andProtection of Children) Act, 2015. [Para 46][639-G]

2. A perusal of the psychologist’s report clearly mentionsthat it was only for the purpose of assessing the mental capacityof the child. The report did not mention anything about the child’sknowledge of the consequences of committing the allegedoffence, nor did it mention about the circumstances leading tothe alleged offence. No such assessment was carried out as,apparently the Board only required the opinion on the mentalcapacity of the child. [Para 49][640-F-G]

3. Maintaining confidentiality has a different purpose butin no case can it be said that to maintain confidentiality, therelevant material would not be provided to the child or hisguardian or parents. It would be in complete contravention ofthe settled principles of criminal jurisprudence. Concept ofconfidentiality used in section 99 of the Act, 2015 is to preventthe reports from coming in public domain or shared in public. Itsavailability will be confined to the parties to the proceedings andthe parties should also refrain from sharing it with third parties.Section 99(2) begins with the non obstante clause and proceedsto direct that the victim should not be denied access to the casereport, orders and relevant papers. Once the legislature’sintention is to provide material to the victim there could neverbe an intention in the name of confidentiality to deny such accessto the records to the child or his parents or guardians. The Boardand the Children’s Court committed an illegality in not providingthe documents as demanded by misinterpreting section 99 of theAct, 2015. [Para 52][641-D-F]

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A4. In the present case, despite request of the respondentto defer the preliminary assessment till such time as the materialunder rule 10(5) of the Juvenile Justice (Care and Protection ofChildren) Model Rules, 2016 was provided, was rejected by theBoard on 13.12.2017 and the Board proceeded to make an orderof preliminary assessment within a week thereafter on 20.12.2017.BThe child had been taken into custody and was produced beforethe Board for the first time on 08.11.2017. The three months’period for preliminary assessment would have continued till07.02.2018. The Board could have, rather ought to have, waitedfor the report and material under rule 10(5) of the Model Rules.CSimilarly, once the report of the psychologist suggested that iffurther examination is required then the respondent ought tohave been referred to a specialised institute in Rohtak but thissuggestion was also not accepted by the Board without cogentreason. [Para 61][644-E-F]

D5. This Court is in agreement with the reasoning given bythe High Court that further assessment ought to have beencarried out once the psychologist had recommended so and hadalso suggested the name of the institute. The Board and theChildren’s Court apparently were of the view that the mentalcapacity and the ability to understand the consequences of theEoffence were one and the same, that is to say that if the child hadthe mental capacity to commit the offence, then he automaticallyhad the capacity to understand the consequences of the offence.This is a grave error committed by them. The language used insection 15 is “the ability to understand the consequences of theFoffence”. The expression used is in plurality i.e., “consequences”of the offence and, therefore, would not just be confined to theimmediate consequence of the offence or that the occurrence ofthe offence would only have its consequence upon the victim butit would also take within its ambit the consequences which may fall upon not only the victim as a result of the assault, but also onGthe family of the victim, on the child, his family, and that too notonly immediate consequences but also the far-reachingconsequences in future. [Paras 67 and 68][646-F-H; 647-A-B]

6.1. The power to make the preliminary assessment isvested in the Juvenile Justice Board and also the Children’sCourt under sections 15 and 19 respectively of the JuvenileJustice (Care and Protection of Children) Act, 2015. TheChildren’s Court, on its own, upon a matter being referred tounder section 18(3), would still examine whether the child is tobe tried as an adult or not, and if it would come to the conclusionthat the child was not to be tried as an adult then it would itselfconduct an inquiry as a Board and pass appropriate orders undersection 18. Thus, the power to carry out the preliminaryassessment rests with the Board and the Children’s Court. ThisCourt cannot delve upon the exercise of preliminary assessment.This Court will only examine as to whether the preliminaryassessment has been carried out as required under law or not.Even the High Court, exercising revisionary power under section102, would test the decision of the Board or the Children’s Courtwith respect to its legality or propriety only. In the present case,the High Court has, after considering limited material on record,arrived at a conclusion that the matter required reconsiderationand for which, it has remanded the matter to the Board with furtherdirections to take additional evidence and also to afford adequateopportunity to the child before taking a fresh decision. [Para81][657-C-F]

6.2. In arriving at the conclusion, the High Court firstlyheld that there was denial of adequate opportunity to therespondent. The list of documents, copies of the documents,copies of the statement, the SIR not being provided to therespondent, was in clear violation of rule 10(5) of the Model Rules.[Para 82][657-G]

6.3. Despite specific request for cross-examining theexperts who had given the report, the same was not provided tothe respondent. The tests conducted by the expert psychologistswere not applicable or could not have been applied to a childabove the age of 15 years. It could have been applied only forchildren below the age of up to 15 years in one test and up to 11.5years in the other test. The psychologist had suggested for furtherassessment by a superior facility, which was not accepted by theBoard without cogent reason. [Para 83][657-H; 658-A]

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A6.4. The mental age as per the applicable formula based onthe IQ of the child would be less than 16 years. The Board,provided only 30 minutes time to the child, his lawyer, his fatherand also to the counsel for CBI to peruse the 35 pages of thereport, which was too little to peruse and comprehend and giveany evidence in rebuttal. The CBI counsel had admitted that itBdid not have officers or the required infrastructure to conductthe investigation under the Act, 2015. For all the above reasons,the High Court remitted the matter to the Board after settingaside both the orders of the Board and the Children’s Court toconsider afresh and assess the intelligence, maturity, physicalCfitness and as to how the child in conflict with law was in a positionto know the consequences of the offence. The exercise was tobe undertaken within a period of six weeks. The High Courtfurther directed that while conducting the preliminary assessmentafresh, opinion of the psychologist of the Government Hospital(Institute of Mental Health, University of Health Sciences,DRohtak) be obtained. This Court may not agree with the reasoninggiven by the High Court on all counts and also the direction givenfor conducting further tests. However, this Court agrees withthe ultimate result of the High Court in remanding the matter fora fresh consideration after rectifying the errors on lack ofEadequate opportunity. [Para 84][658-B-E]

6.5. The High court taking into consideration all theseaspects set aside the order of the Board, and remanded the matterand also directed for getting further examination of the child, andthis exercise was to be undertaken within 6 weeks. Today, afterF3½ years, one is not in a position to give an opinion as to whetherany further test can be carried out at this stage as the age of thechild is now more than 21 years. However, it is left to thediscretion of the Board or the psychologist who may be consultedas to whether any fresh examination would be of any relevance/assistance or not. The Act, 2015 or the Model Rules do not layGdown any guidelines or framework to facilitate the Board inmaking a proper preliminary assessment on the relevant aspects.The only liberty given to the Board is to obtain assistance of anexperienced psychologist or a psycho-social worker or otherexpert. In the present case, the only assistance taken is to getH

the mental IQ of the child. Beyond that, regarding the ability tounderstand the consequences and also the circumstances in whichthe alleged offence was committed, no report was called for fromany psychologist. [Para 85][658-F-H; 659-A-B]

6.6. The task of preliminary assessment under section 15of the Act, 2015 is a delicate task with requirement of expertiseand has its own implications as regards trial of the case. In thisview of the matter, it appears expedient that appropriate andspecific guidelines in this regard are put in place. It is open forthe Central Government and the National Commission forProtection of Child Rights and the State Commission forProtection of Child Rights to consider issuing guidelines ordirections in this regard which may assist and facilitate the Boardin making the preliminary assessment under section 15 of theAct, 2015. [Para 87][659-C-D]

Bachahan Devi v. Nagar Nigam, Gorakhpur (2008) 12SCC 372 : [2008] 2 SCR 424 and Dhampur Sugar MillsLtd. v. State of U.P. (2007) 8 SCC 338 : [2007] 10SCR 245 – relied on.

Kishan Paswan v. UOI Civil Misc. W.P. No. 5044 of2020; Mukarrab v. State of UP (2017) 2 SCC 210 :[2016] 8 SCR 557; Controller of Defense Accounts(Pension) and ors. v. S. Balachandran Nair (2005) 13SCC 128 : [2005] 4 Suppl. SCR 431; Amit Kapoor v.Ramesh Chander & Anr (2012) 9 SCC 469; RajendraRajoriya v. Jagat Narain Thapak and Anr (2018) 17SCC 234; Jabar Singh v. Dinesh (2010) 3 SCC 757 :[2010] 3 SCR 353; Chandavarkar Sita Ratna Rao v.Ashalata S. Guram (1986) 4 SCC 447 : [1986] 3 SCR866; Madanlal Fakirchand Dudheya v. S. ChangdeoSugar Mills 1962 AIR 1543 : [1962] Suppl. SCR 973;Chinnamar Kathiam v. Ayyavoo AIR 1982 SC 137 :[1982] 2 SCR 146; Jyoti Prakash Rai @ Jyoti Prakashv. State of Bihar (2008) 15 SCC 223 : [2008] 3SCR 818; Balkaram v. State of Uttarakhand & Ors.(2017) 7 SCC 668 : [2017] 5 SCR 367; Shilpa Mittal A

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v. State of NCT & Another [2020] 2 SCR 478; G.Sundarrajan v. Union of India & Ors. (2013) 6 SCC620 : [2013] 8 SCR 631; Shilpa Mittal v. State of NCT& Another Crl. Appeal No. 34 of 2020 : [2020] 2SCR 478; Bachahan Devi & Anr. v. Nagar NigamGorakhpur (2008) 12 SCC 372 : [2008] 2 SCR 424;Ankush Shivaji Gaikwad v. State of Maharashtra (2013)6 SCC 770 : [2013] 8 SCR 863; State of Bank ofTravancore v. Mohammed Mohammed Khan (1981) 4SCC 82 : [1982] 1 SCR 338; Som Prakash Rekhi v.Union of India (1981) 1 SCC 449 : [1981] 2 SCR 111;Pratap Singh v. State of Jharkhand (2005) 3 SCC551;[2005] 1 SCR 1019; Salil Bali v. Union of India &Another (2013) 7SCC 705 : [2013] 13 SCR 1020;Province of Bombay v. Kusaldas S. Advani [1950] SCR621; State of Andhra Pradesh v. A.P. Wakf Board 2022SCC Online SC 159; Superintendent & Remembrancerof legal affairs West Bengal v. Satyen Bhowmik (1981)2 SCC 109 : [1981] 2 SCR 661; Nitya Dharamanandav. Gopal Sheelum Reddy (2018) 2 SCC 93 : [2017] 12SCR 118; In re: Criminal Trials Guidelines regardinginadequacies and Deficiencies v. State of AndhraPradesh and ors. (2021) 10 SCC 598 : [2011] 2SCR 1087; Union of India v. IND-Swift LaboratoriesLimited (2011) 4 SCC 635 : [2011] 2 SCR 1087;Mahabir Singh v. State of Haryana (2001) 7 SCC 148: [2001] 1 Suppl. SCR 37; Opto Circuit India Ltd. v.Axis Bank (2021) 6 SCC 707; Aloke Nath Dutta & Ors.v. State of Bengal (2007) 12 SCC 230 : [2006] 10 Suppl.SCR 662; Sharat Babu Diguamarti v. NCT of Delhi(2017) 2 SCC 18 : [2016] 8 SCR 1015; Philips IndiaLtd. v. Labour Court (1985) 3 SCC 103 : [1985] 3SCR 491; Municipal Corporation of Delhi v. GirdharilalSapru (1981) 2 SCC 758; Ramgopal Ganpatrai Ruia v.State of Bombay [1958] SCR 618; Krishnan v.Krishnaveni (1997) 4SCC 241 : [1997] 1 SCR 511;Rajeshwar Singh v. Subrata Roy Sahara (2013) 14 SCC257; Ashok Kumar Gupta v State of U.P. 1994 Supp (1)SCC 145; Union Carbide Corp. v. Union of India (1991)

4 SCC 584 : [1991] 1 Suppl. SCR 251; M. Siddiq(Dead) Through Legal Representative (RamJanmabhumi Temple Case) v. Mahant Suresh Das & Ors.(2020) 1 SCC 1 : [2019] 18 SCR 1 – referred to.

A

Kent v. United States (383, US, 541, 1966); Nazir Ahmadv. King Emperor 1936 ILR 372; The King v. Saw Min1938 SCC Online Rang 68; Emperor v. N.G. ChatterjiILR 1946 ALL – referred to.

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Case Law Reference

[2022] 10 S.C.R.

Para 44 (xviii) (j)Para 44 (xviii) (k)Para 44 (xviii) (l)Para 44 (xviii) (m)Para 44 (xviii) (p)Para 44 (xviii) (q)Para 44 (xviii) (r)Para 44 (xviii) (s)Para 44 (xviii) (t)Para 44 (xviii) (u)Para 44 (xviii) (v)Para 44 (xviii) (x)Para 44 (xviii) (y)Para 44 (xviii) (z)Para 44 (xviii) (aa)Para 44 (xviii) (bb)Para 77

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.950 of 2022.

FFrom the Judgment and Order dated 11.10.2018 of the High Courtof Judicature for the States of Punjab and Haryana at Chandigarh inCRR No. 2366 of 2018.

With

Criminal Appeal No. 951 of 2022.G

Vikramjeet Banerjee, ASG, Sidharth Luthra, Sr. Adv., Sushil K.Tekriwal, Dr. Mamta Tekriwal, Venkateswara Rao Anumolu, Ms. SupriyaJuneja, Aditya Singla, Ms. Shubhangni Jain, Pankaj Singhal, Ms. CheshtaJetley, Ms. A. Sahitya Veena, Yash Giri, Sachin Sharma, Ms. RukhminiBobde, Ms. Swati Ghildiyal, Om Prakash Shukla, Sughosh Subramanyam,HArvind Kumar Sharma Advs. for the appearing parties.

The Judgment of the Court was delivered by VIKRAM NATH, J.

Delay condoned.

2. Leave granted.

3. This Court is called upon to examine the proceedings arisingout of preliminary assessment made under section 15 of the JuvenileJustice (Care and Protection of Children) Act, 2015[1]. In consonancewith the provisions of section 74 of the Act, 2015 following the orderspassed by the Courts below, we have used the name ‘Bholu’ for theaccused and ‘Prince’ for the victim.

4. These two appeals, one filed by the complainant and other bythe CBI, question the correctness of the judgment and order dated11.10.2018 passed by learned single Judge of Punjab and Haryana HighCourt at Chandigarh in Criminal Revision No.2366 of 2018, titled Bholuversus CBI, whereby the revision was allowed; the order dated20.12.2017 passed by the Juvenile Justice Board[2], Gurugram and theorder dated 21.05.2018 passed by the Additional Sessions Judge/Children’s Court were set aside and the matter was remanded to theBoard for fresh consideration within a period of six weeks from the dateof receipt of certified copy of the order. Certain other directions werealso issued. The operative portion of the order dated 11.10.2018 isreproduced below: - “…In view of the facts and law position as discussed above, thepresent petition is allowed and impugned order dated 20.12.2017passed by the Juvenile Justice Board, Gurugram and order dated21.05.2018 passed by the Additional Sessions Judge, Gurugramare set aside. The case is remanded back to the Board for afreshconsideration after assessing the intelligency, maturity, physicalfitness as to how the juvenile in conflict with law was in a positionto know the consequences of the offence. The necessary exercisebe done within a period of six weeks from the date of receipt ofcertified copy of the order. It is also relevant to mention here thatwhile conducting preliminary assessment, the opinion ofpsychologist of the Government hospital be obtained.”

1 The Act, 2015.

2 ‘Board’ for short

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A5. Facts relevant for the adjudication of the present appeals areas follows:

(i) An unfortunate incident took place on 08.09.2017 in aninstitution in Gurugram where a Class II student (Prince)was found in the toilet with his throat slit in an unconsciousBstate at about 08.30 am. He was rushed to the hospital butwas declared brought dead. Initially the State Police onsuspicion arrested three persons, a driver of the schoolvehicle and two officials of the school, but later on theywere released on bail.

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(ii) In the meantime, the State transferred the investigation toCentral Bureau of Investigation[3]. The CBI, during itsinvestigation, interrogated a Class XI student (Bholu) fromthe same institution on two-three occasions, thereafterarrested him on 07.11.2017 (respondent-1, in both theDappeals)[4].

(iii) From the material collected, it was found that the date ofbirth of respondent was 03.04.2001. As the date of theincident was 08.09.2017, he was aged 16 years 05 monthsand 05 days as on the relevant date. There is no disputeEabout the date of birth of the respondent.

6. As required by section 10 of the Act, 2015, the respondent wasproduced before the Board by the CBI on 08.11.2017. The Board directedfor placing the child in a safety home. The parents of the respondentwere informed. Under section 13 of the Act, the Social InvestigationFReport[5] was prepared by the Legal Probation Officer and submitted on27.11.2017 in the prescribed Form No. 6.

7. Section 15 of the Act, 2015 mandates that where a child inconflict with law has committed a heinous offence and is above the ageof 16 years, the Board would make a preliminary assessment and passGappropriate orders in accordance with the provisions of sub-section (3)of section 18 of the Act, 2015.

3 “CBI” for short

4 “the respondent” for short

5 Referred to as “SIR”.H

8. In the present case, both the conditions required under section15 of the Act, 2015 were fulfilled as such the Board undertook theexercise of making the preliminary assessment. In that process, the Boardcalled for a report from the expert psychologist, also interacted with therespondent, considered the SIR as also other material placed before itand proceeded to pass an order on 20.12.2017 holding that there wasneed of trial of respondent as an adult and accordingly, directed fortransfer of papers to the Children’s Court.

9. Against the order dated 20.12.2017, the respondent preferredan appeal before the Children’s Court under section 101 of the Act,2015. The Children’s Court, vide judgment and order dated 21.05.2018,upheld the decision of the Board and dismissed the appeal.

10. Aggrieved by the judgment of the Children’s Court, therespondent preferred a Criminal Revision under section 102 of the Act,2015, before the High Court. The learned single Judge vide judgmentand order dated 11.10.2018 allowed the Revision, set aside the orderspassed by the Board as also the Children’s Court and remanded thematter to the Board for a fresh consideration. It is this order of remandpassed by the High Court, correctness of which has been assailed in thepresent two appeals by the CBI and also the complainant.

11. The judgment of the High Court is dated 11.10.2018 and asper its direction, Board was to decide the matter afresh within six weeks.Assailing the order of the High Court, two special leave petitions werefiled before this Court. One by the complainant registered as SLP (Crl.)No. 10123 of 2018 and the other by the CBI registered as SLP (DiaryNo. 25451 of 2019). This Court while issuing notice in the first specialleave petition filed by the complainant Barun Chandra Thakur, also passedan order of status quo on 19.11.2018. The special leave petition filed bythe CBI was clubbed/tagged with the special leave petition of thecomplainant. These matters have remained pending for over 3 ½ years.From the record we do not find any effort on part of the parties for earlyhearing or disposal of the two petitions for over 3 years. It was only inJanuary, 2022 that the counsel for the respondent requested that thematter may be taken up for hearing as the respondent is in custody formore than three years and very soon, he will be completing 21 years ofage. The matters were taken up on a number of occasions and thearguments of both sides were heard at length.

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A12. We have heard Shri Vikramjit Banerjee, learned AdditionalSolicitor General for the CBI-appellant, Shri Sushil Tekriwal, learnedcounsel for the complainant-appellant and Shri Sidharth Luthra, learnedsenior counsel for the respondent and perused the material on record.

13. Before proceeding to deal with the submissions advanced, itBwould be appropriate to briefly refer to the statutory provisions, thescheme of the Act, 2015 and the necessity requiring a preliminaryassessment under section 15 of the Act, 2015. Before coming of theAct, 2015, the Juvenile Justice (Care and Protection of Children) Act,2000[6] was in force. Under the said enactment, all children below 18years of age were to be treated as juveniles and tried as such by theCBoard. It was only after the coming of the Act, 2015, that a furthercategory was carved out of juveniles between 16 to 18 years involved inheinous offences. They were subjected to a preliminary assessment toascertain whether they are to be tried as a child by the Board or to betried as an adult by the Children’s Court. However, for those above theDage of 16 years and below 18 years, if the Board was of the opinion thatthe said Juvenile should not be tried as an adult, the Board would continuewith the trial as envisaged under the Act, 2015.

14. The Act, 2000 and the Act, 2015 were enacted with thefollowing preamble:E“An Act to consolidate and amend the law relating to childrenalleged and found to be in conflict with law and children in needof care and protection by catering to their basic needs throughproper care, protection, development, treatment, social re-integration, by adopting a child-friendly approachin the adjudicationFand disposal of matters in the best interest of childrenand fortheir rehabilitation through processesprovided, and institutions andbodies established, hereinunder and for matters connectedtherewith or incidental thereto…”

Relevant provisions of Act, 2015G15. Chapter I consists of sections 1 and 2 (which is the definitioncompendium). Section 2(9) defines the “best interest of the child”; section2(12) defines a “child” to mean a person who has not completed 18years of age; section 2(13) defines a “child in conflict with law”; ‘Child friendly’ is defined under section 2(15); the ‘Children’s Court’ is definedunder section 2(20); ‘Heinous Offences’ is defined under section 2(33)to include offences for which the minimum punishment is imprisonmentfor seven years or more.

16. Chapter II consists of section 3 which provides for the generalprinciples of care and protection of children to be followed in theadministration of the Act. According to it, the Central Government, theState Government, the Board and other agencies as the case may be,while implementing the provisions of the Act shall be guided by thefundamental principles enumerated in clauses (i) to (xvi). It would beworthwhile to refer to some of the principles; clause (i) Principle ofpresumption of innocence: any child shall be presumed to be aninnocent of any mala fide or criminal intent; clause (iii) Principle ofParticipation: every child will have a right to be heard and to participatein all processes and decisions affecting his interest; clause (iv) Principleof best interest: primary consideration in all decisions regarding thechild shall be in his best interest; clause (ix) Principle of non-waiver ofrights: it does not permit waiver of any of the right of the child and evennon-exercise of a fundamental right would not amount to waiver; clause(xvi) Principles of natural justice: standards of fairness shall beadhered to including the right to fair hearing, rule against bias and rightto review by all persons or bodies, acting in a judicial capacity under thisAct.

17. Chapter III consisting of sections 4 to 9 deals with theconstitution of the Board, the procedure in relation to the Board, powers,functions and responsibilities of the Board. Sub-section (1) of section 4provides for establishment of a Board in every district which could bemore than one, to exercise powers and discharge functions relating tochildren in conflict with law under the Act. Sub-section (2) of section 4defines the constitution of the Board. Sub-section (3) provides for theeligibility of the social workers to be appointed to the Board. Sub-sections(4), (5), (6) and (7) further provide eligibility for selection, disqualification,term and training as a member of the Board. Section 5 provides that ifduring the course of any inquiry by the Board, the child completes theage of eighteen years then the Board will continue with the inquiry topass final orders as if such person has continued to be a child. Section 6provides that any person who has completed eighteen years of age andis apprehended for committing an offence when he was below the age A

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Aof eighteen years, then, subject to the provisions of this section, he wouldbe treated as a child during the process of the inquiry. Section 7 providesfor sittings of the Board for transacting its businesses. It also refers tothe coram of the Board. Section 8 defines the powers, functions andresponsibilities of the Board. Section 9 provides for the procedure to befollowed by a Magistrate, who has not been empowered to exercise theBpowers of Board under the Act, when he is of the opinion that anyalleged offender brought before him is a child. In that case, the Magistratewould immediately record his opinion and forward the child along withthe record of proceedings to the Board having jurisdiction.

18. Chapter IV comprising of sections 10 to 26 deals with theCprocedure in relation to children in conflict with law. Sections 10 and 11provide for the apprehension of a child in conflict with law and as to howhe should be dealt with. Section 12 deals with bail to a person who isapparently a child alleged to be in conflict with law. Section 13 providesthat the parents, guardians to be informed forthwith. Section 14 requiresDthe Board to hold an inquiry regarding a child in conflict with law, suchinquiry to be conducted and appropriate orders passed under sections 17and 18 of the Act, 2015.

19. Section 15 provides for preliminary assessment where thealleged offence is heinous and where the child has completed or is aboveEthe age of 16 years, the Board is required to conduct the preliminaryassessment with regard to his mental and physical capacity to commitsuch offence, ability to understand the consequences of the offence andthe circumstances in which he allegedly committed the offence and aftersuch assessment, pass an order in accordance with sub-section (3) ofsection 18. If the Board is of the opinion that the child needs to be triedFas an adult then the case be transferred to the Children’s Court havingjurisdiction to try such offence. Otherwise, the Board itself will proceedto try the matter as a summons case under the Code of CriminalProcedure, 1973.[7]

20. Section 16 confers power on the Chief Judicial Magistrate orGthe Chief Metropolitan Magistrate to review the pendency of cases beforethe Board once in three months and may issue necessary directions inthat regard depending upon the pendency.

7 For short, ‘Cr.P.C.H

21. Section 17 requires the Board to pass appropriate orders whereafter inquiry, the Board is satisfied that the child has not committed anyoffence. The Board may also pass appropriate orders where the child isin need of care and protection and refer him to the Child WelfareCommittee.

22. Section 18 requires the Board to pass appropriate orders wherethe child is found to be in conflict with law. Different categories areprovided and various powers are conferred on the Board to take care ofsuch children who are below the age of sixteen years and have committedheinous offence and for children up to the age of eighteen years whohave committed petty offence or a serious offence. Sub-section (1) ofsection 18 and its various clauses from (a) to (g) confer a variety ofpowers on the Board for issuing necessary directions. Sub-section (2)gives additional power to the Board providing for education, training,counselling, de-addiction programmes and even restricting the movementof the child, in his interest. Sub-section (3) provides that the Board ifafter the preliminary assessment under Section 15 passes an order thatthere is a need for trial of the child as an adult, then the Board may ordertransfer of the trial of such a case to the Children’s Court havingjurisdiction.

23. Section 19 deals with the powers conferred on the Children’sCourt. The Children’s Court upon receipt of the preliminary assessmentfrom the Board will decide whether there is need for trial of a child as anadult in accordance with the Cr.P.C. and pass appropriate orders aftertrial subject to the provisions of this section as also section 21. However,if the Children’s Court feels that there is no need for trial of child as anadult, then, it may conduct an inquiry as a Board and pass appropriateorders in accordance with provisions of Section 18. Sub-section (2) ofsection 19 provides that the Children’s Court will ensure that the finalorder with regard to a child in conflict with law will include an individualcare plan for rehabilitation of the child including other directions. Undersub-section (3), the Children’s Court will ensure that a child in conflictwith law remains in a place of safety till he attains the age of 21 yearsand thereafter is transferred to jail. Proviso to sub-section (3) ensuresthat reformative services including education, skill development,counselling, behaviour modification therapy and psychiatric support areprovided during the period the child is in a place of safety. Under sub-section (4), the Children’s Court is to ensure that there is a periodicfollow up report annually either by the Probation Officer or the District A

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AChild Protection Unit or the Social Worker for evaluation of the progressof the child and also to ensure that there is no ill treatment to the child inany form.

24. Section 20(1) deals with the powers of the Children’s Courtwith respect to the progress and evaluation of the child even after heBattains the age of 21 years and has not completed the term of stay.Under sub-section (2) of section 20, the Children’s Court after completingthe procedure provided under sub-section (1) may pass an order eitherto release the child on such conditions for the remainder of the prescribedterm of stay and or pass an order that the child will complete the remainderof his term in jail. C25. Section 21 prohibits the sentencing of a child in conflict withlaw to death or life imprisonment without the possibility of release.

26. Under section 22 of the Act, it is mandated that Chapter VIIIof Cr.P.C., and any preventive detention law would not be applied againstDany child.

27. Under section 23, there is a bar that a child in conflict withlaw would not be tried with the person who is not a child.

28. Under section 24, a protection is provided that a child in conflictwith law will not suffer any disqualification under any such law on accountEof offence being established against him. However, this protection willnot be available to the child who has completed or is above the age of 16years and is found to be in conflict with law by the Children’s Courtunder Section 19(1)(i). Sub-section (2) of section 24 provides fordestruction of records under different situations.

F29. Section 25 provides that all pending proceedings before anyBoard or Court on the date of commencement of this Act would continuein the same Board or Court as if this Act had not been enacted.

30. Section 26 makes provisions with respect to run away childrenin conflict with law. The above takes care of the various provisionsGcontained in Chapter IV dealing with the procedure in relation to childrenin conflict with law.

31. Under the Juvenile Justice (Care and Protection of Children)Model Rules, 2016[8], it is only rule 10(A) which refers to preliminary H8 Hereinafter referred to as the “Model Rules”

assessment into heinous offences by the Board. Sub-rule (1) mentionsthat the first thing to be determined by the Board is the age of the childas to whether he is below or above the age of 16 years which is to bedone as per section 14 of the Act. Sub-rule (2) mentions that the Boardmay take assistance of the experienced psychologists or psycho-socialworkers or other experts who have experience of working with childrenin difficult circumstances. It also provides that the District ChildProtection Unit would have a panel of such experts to be made availableto the Board for its assistance or otherwise the Board could access suchexperts independently. Sub-rule (3) declares that the child shall bepresumed to be innocent unless proved otherwise while making thepreliminary assessment. Sub-rule (4) provides for the consequential orderto be passed by the Board where it holds that the trial of the child is to becarried out as an adult for which, it is required to assign reasons andfurther to provide copy of order to the child forthwith.

32. We are not quoting all the provisions referred to above butonly the provisions which are relevant, that are sections 4, 14, 15, 18 and19 of the Act, 2015, as also rule 10A of the Model Rules. The same arereproduced below:

“Section 4: Juvenile Justice Board

(1) Notwithstanding anything contained in the Code of CriminalProcedure, 1973, the State Government shall, constitute for everydistrict, one or more Juvenile Justice Boards for exercising thepowers and discharging its functions relating to children in conflictwith law under this Act.

(2) A Board shall consist of a Metropolitan Magistrate or a JudicialMagistrate of First Class not being Chief Metropolitan Magistrateor Chief Judicial Magistrate (hereinafter referred to as PrincipalMagistrate) with at least three years experience and two socialworkers selected in such manner as may be prescribed, of whomat least one shall be a woman, forming a Bench and every suchBench shall have the powers conferred by the Code of CriminalProcedure, 1973 on a Metropolitan Magistrate or, as the casemay be, a Judicial Magistrate of First Class.

(3) No social worker shall be appointed as a member of the Boardunless such person has been actively involved in health, education, A

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or welfare activities pertaining to children for atleast seven yearsor a practicing professional with a degree in child psychology,psychiatry, sociology or law.

(4) No person shall be eligible for selection as a member of theBoard, if he –– (i) has any past record of violation of humanrights or child rights; (ii) has been convicted of an offence involvingmoral turpitude, and such conviction has not been reversed or hasnot been granted full pardon in respect of such offence; (iii) hasbeen removed or dismissed from service of the CentralGovernment or a State Government or an undertaking orcorporation owned or controlled by the Central Government or aState Government; (iv) has ever indulged in child abuse oremployment of child labour or any other violation of human rightsor immoral act.

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(5) The State Government shall ensure that induction training andsensitisation of all members including Principal Magistrate of theBoard on care, protection, rehabilitation, legal provisions and justicefor children, as may be prescribed, is provided within a period ofsixty days from the date of appointment.

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(6) The term of office of the members of the Board and the mannerEin which such member may resign shall be such, as may beprescribed.

(7) The appointment of any member of the Board, except thePrincipal Magistrate, may be terminated after holding an inquiryby the State Government, if he ––

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(i) has been found guilty of misuse of power vested under thisAct; or

(ii) fails to attend the proceedings of the Board consecutivelyfor three months without any valid reason; or G(iii) fails to attend less than three-fourths of the sittings in ayear; or

(iv) becomes ineligible under sub-section (4) during his termas a member.

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Section 14. Inquiry by Board regarding child in conflict withlaw.

(1) Where a child alleged to be in conflict with law is producedbefore Board, the Board shall hold an inquiry in accordance withthe provisions of this Act and may pass such orders in relation tosuch child as it deems fit under sections 17 and 18 of this Act.

(2) The inquiry under this section shall be completed within aperiod of four months from the date of first production of the childbefore the Board, unless the period is extended, for a maximumperiod of two more months by the Board, having regard to thecircumstances of the case and after recording the reasons in writingfor such extension.

(3) A preliminary assessment in case of heinous offences undersection 15 shall be disposed of by the Board within a period ofthree months from the date of first production of the child beforethe Board.

(4) If inquiry by the Board under sub-section (2) for petty offencesremains inconclusive even after the extended period, theproceedings shall stand terminated:

Provided that for serious or heinous offences, in case the Boardrequires further extension of time for completion of inquiry, thesame shall be granted by the Chief Judicial Magistrate or, as thecase may be, the Chief Metropolitan Magistrate, for reasons tobe recorded in writing.

(5) The Board shall take the following steps to ensure fair andspeedy inquiry, namely:

(a) at the time of initiating the inquiry, the Board shall satisfyitself that the child in conflict with law has not been subjected toany ill-treatment by the police or by any other person, including alawyer or probation officer and take corrective steps in case ofsuch ill-treatment; (b) in all cases under the Act, the proceedings shall be conductedin simple manner as possible and care shall be taken to ensurethat the child, against whom the proceedings have been instituted,is given child-friendly atmosphere during the proceedings; A

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(c) every child brought before the Board shall be given theopportunity of being heard and participate in the inquiry; (d) cases of petty offences, shall be disposed of by the Boardthrough summary proceedings, as per the procedure prescribedunder the Code of Criminal Procedure, 1973; (e) inquiry of serious offences shall be disposed of by the Board,by following the procedure, for trial in summons cases under theCode of Criminal Procedure, 1973; (f) inquiry of heinous offences -

(i) for child below the age of sixteen years as on the date ofcommission of an offence shall be disposed of by the Boardunder clause (e);

(ii) for child above the age of sixteen years as on the date ofcommission of an offence shall be dealt with in the mannerprescribed under section 15.

Section 15. Preliminary assessment into heinous offencesby Board.

(1) In case of a heinous offence alleged to have been committedby a child, who has completed or is above the age of sixteenyears, the Board shall conduct a preliminary assessment withregard to his mental and physical capacity to commit such offence,ability to understand the consequences of the offence and thecircumstances in which he allegedly committed the offence, andmay pass an order in accordance with the provisions of subsection(3) of section 18:

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

Explanation— For the purposes of this section, it is clarifiedthat preliminary assessment is not a trial, but is to assess thecapacity of such child to commit and understand the consequencesof the alleged offence.

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

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

Provided further that the assessment under this section shallbe completed within the period specified in section 14.

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Section 18: Orders regarding child found to be in conflictwith law.

(1) Where a Board is satisfied on inquiry that a child irrespectiveof age has committed a petty offence, or a serious offence, or achild below the age of sixteen years has committed a heinousoffence, then, notwithstanding anything contrary contained in anyother law for the time being in force, and based on the nature ofoffence, specific need for supervision or intervention,circumstances as brought out in the social investigation reportand past conduct of the child, the Board may, if it so thinks fit,—

(a) allow the child to go home after advice or admonition byfollowing appropriate inquiry and counselling to such child and tohis parents or the guardian; (b) direct the child to participate in group counselling and similaractivities;

(c) order the child to perform community service under thesupervision 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 payfine: Provided that, in case the child is working, it may be ensuredthat the provisions of any labour law for the time being in forceare not violated; (e) direct the child to be released on probation of good conductand placed under the care of any parent, guardian or fit person,on such parent, guardian or fit person executing a bond, with orwithout surety, as the Board may require, for the good behaviourand child’s well-being for any period not exceeding three years; (f) direct the child to be released on probation of good conductand placed under the care and supervision of any fit facility for A

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ensuring the good behaviour and child’s well-being for any periodnot exceeding three years; A

(g) direct the child to be sent to a special home, for such period,not exceeding three years, as it thinks fit, for providing reformativeservices including education, skill development, counselling,Bbehaviour modification therapy, and psychiatric support during theperiod of stay in the special home:

Provided that if the conduct and behaviour of the child hasbeen such that, it would not be in the child’s interest, or in theinterest of other children housed in a special home, the Boardmay send such child to the place of safety.

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(2) If an order is passed under clauses (a) to (g) of sub-section

(1), the Board may, in addition pass orders to—

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(iii) attend a therapeutic centre; or

(iv) prohibit the child from visiting, frequenting or appearing ata specified place; or

(v) undergo a de-addiction programme.

(3) Where the Board after preliminary assessment under section15 pass an order that there is a need for trial of the said child asan adult, then the Board may order transfer of the trial of the caseto the Children’s Court having jurisdiction to try such offences.

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Section 19:Powers of Children’s Court.

F(1) After the receipt of preliminary assessment from the Boardunder section 15, the Children´s Court may decide that—

(i) there is a need for trial of the child as an adult as per theprovisions of the Code of Criminal Procedure, 1973 and passappropriate orders after trial subject to the provisions of thisGsection and section 21, considering the special needs of thechild, the tenets of fair trial and maintaining a child friendlyatmosphere;

(ii) there is no need for trial of the child as an adult and mayconduct an inquiry as a Board and pass appropriate orders inaccordance with the provisions of section 18.

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(2) The Children’s Court shall ensure that the final order, withregard to a child in conflict with law, shall include an individualcare plan for the rehabilitation of child, including follow up by theprobation officer or the District Child Protection Unit or a socialworker.

(3) The Children’s Court shall ensure that the child who is foundto be in conflict with law is sent to a place of safety till he attainsthe age of twenty-one years and thereafter, the person shall betransferred to a jail:

Provided that the reformative services including educationalservices, skill development, alternative therapy such as counselling,behaviour modification therapy, and psychiatric support shall beprovided to the child during the period of his stay in the place ofsafety.

(4) The Children’s Court shall ensure that there is a periodic followup report every year by the probation officer or the District ChildProtection Unit or a social worker, as required, to evaluate theprogress of the child in the place of safety and to ensure thatthere is no ill-treatment to the child in any form.

(5) The reports under sub-section (4) shall be forwarded to theChildren´s Court for record and follow up, as may be required.

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Rule 10A. Preliminary assessment into heinous offencesby Board -

(1) The Board shall in the first instance determine whether thechild is of sixteen years of age or above; if not, it shall proceed asper provisions of section 14 of the Act.

(2) For the purpose of conducting a preliminary assessment incase of heinous offences, the Board may take the assistance ofpsychologists or psycho-social workers or other experts who haveexperience of working with children in difficult circumstances. Apanel of such experts may be made available by the District ChildProtection Unit, whose assistance can be taken by the Board orcould be accessed independently.

(3) While making the preliminary assessment, the child shall bepresumed to be innocent unless proved otherwise.

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A(4) Where the Board, after preliminary assessment under section15 of the Act, passes an order that there is a need for trial of thesaid child as an adult, it shall assign reasons for the same and thecopy of the order shall be provided to the child forthwith.”

PROCEEDINGS BEFORE THE BOARDB

33. In the present case, it is the preliminary assessment made bythe Board under section 15 of the Act, 2015, that the respondent be triedas an adult, is under consideration.

34. The Board on record had the SIR submitted by the ProbationCOfficer in the prescribed format. It had also interacted with the respondenton two occasions, firstly, when he was produced after being apprehendedbefore the Board and secondly, at the time when it was conductingpreliminary assessment and allowed the respondent to address the Board.The Board on 22.11.2017 had also called for report from one expertDpsychologist.

35. On behalf of the respondent, applications were filed beforethe Board, to comply with the provision of section 74 of the Act, 2015;another application was filed to provide the copy of the SIR, a copy ofthe psychologist report and to lead evidence in rebuttal; and a thirdEapplication was filed praying for deferment of the preliminary assessmenttill such time the investigating agency submits its report under rule 10(5)of the Model Rules. The Board vide order dated 13.12.2017 passedseparate orders on these applications. Firstly, it allowed the applicationunder section 74 to protect the identity of the child. Secondly, it rejectedthe other two applications. In so far as the application for providingFdocuments was concerned, the Board observed that access to the samewould be given during the time of hearing for 30 minutes. The thirdapplication for deferment of the proceedings was rejected simpliciter.The Board thereafter proceeded to pass the order of preliminaryassessment on 20.12.2017.G

36. Before the Board, the counsel for the respondent had raisedthe following arguments:

(i) The intent of legislature was never to send all Juvenilesabove the age of 16 years involved in heinous offences tobe tried as adults.

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(ii) The Investigating agency had not completed theinvestigation and no interim report or final report had beenplaced before the Board.

(iii) There was no compliance of rule 10(5) of the Model Rules,as such the Board could not proceed with the preliminaryassessment under section 15 as it would be incapacitatedto make an assessment.

(iv) Due and adequate opportunity was not provided as copiesof the SIR and reports of the expert psychologists were notsupplied to the respondent or his guardian or counsel.

(v) There was no previous history or criminal antecedents ofthe respondent. There was no report of any previous violenceby the respondent.

(vi) Even the reports of the experts were not complete and therecommendation given for further assessment by superiororganization was not resorted to by the Board.

(vii) The expert reports were not conclusive.

(viii) The SIR reflected that the respondent had good behaviorwith friends, teachers and neighbors.

(ix) Lastly, it was argued that the theory propounded by theCBI that the crime was committed to get the examinationspostponed could not have been a probable reason.

37. The Board considered all the submissions and after discussingall the four aspects of section 15 regarding mental capacity and physicalcapacity to commit the offence, ability to understand the consequencesof the offence and the circumstances under which allegedly the offencewas committed, came to the conclusion that respondent should be triedas an adult and, accordingly, passed an order under section 18(3).Relevant portion of the Juvenile Justice Board’s order dated 20.12.2017is reproduced below:

“13. It is alleged that on dated 08.09.2017, Juvenile in conflictwith law Bholu in the area of P.S. Bhondsi committed the Murderof Master Prince in the premises of Ryan International School,Bhondsi. On the day of commission of alleged Act age of Juvenilein conflict with law was above 16 years. It is relevant to mention A

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here that for the purpose of preliminary assessment of Juvenileand to find out what is the physical and mental capacity of juvenile,ability to understand the consequences of offence by juvenile andthe circumstances in which he committed the alleged offence, thejuvenile has been heard personally by the board on 22.11.2017and various questions have been put to him in order to assess hiscapacity to commit and understand the consequences of the actswhich culminated in to registration of present F.I.R. against andjuvenile in conflict with law Bholu gave answer to all questionsvery confidently. This board can well recall the time when juvenilein conflict with law produced before it during personal hearing ofjuvenile in conflict with law, he fairly explained the circumstancesin which he committed the acts resulted in to present inquiry alongwith the manner of commission thereof and now during the timeof recording his statement for preliminary assessment whenjuvenile in conflict with law narrated a different story excludinghis role in the alleged incident well indicates that juvenile in conflictwith law also knows to cook up a story in order to save himselfwhich in turn goes to show that he has adequate mental capacity.

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16. Over all conclusion of Social Investigation report of Juvenilein conflict with law shows that he is below average student instudies but good in music especially in piano. He is aggressive innature and also shouted over other students. He used to consumeliquor and also used mobile phone in school premises. He is veryshort tempered, restless boy and also lacks stability. Just afteralleged incident he appeared in exam but was upset and not writinganything in exam and on asking by teacher Deepshikha he disclosedto her that he saw a child was fallen and blood was coming fromhis body and due to that reason he was upset. Juvenile also remainupset due to quarrel between his parents.

17. As per section 15 of the act in order to preliminary assessmentof juvenile in conflict with law the board can take the assistanceof any psychologist or any other expert. This board was of theopinion that in this matter there is need of assistance of apsychologist for the preliminary assessment of juvenile in conflictwith law so report of psychologist also sought in this matter. Dr.Joginder Kairo Clinical Psychologist, P.G.I.M.S., Rohtak in his report conducted two tests on juvenile in conflict with law toprepare his report. After both tests he give his finding that IQ ofjuvenile in conflict with law noted to be 95 in the category ofaverage intellectual functioning. I.Q-95 showing averageintelligence. This report also shows that it is suggested by theexpert that if require further assessment the juvenile in conflictwith law may be sent to Institute of Mental Health, University ofHealth Sciences, Rohtak. This boards feels it not necessary tosent the juvenile to Institute of Mental Health, University of HealthSciences, Rohtak for any further assessment because from thereport of psychologist it is clear that I.Q. level of juvenile in conflictwith law is average.

18. After having considered all the record and having heard boththe sides and the juvenile personally, this board is of the consideredopinion that juvenile in conflict with law Bholu had sufficient mentaland physical capacity to commit the offence alleged against himand also he had the adequate ability to understand the consequencesof the acts committed by him.

19. Bholu is well built boy and is studied in 11[th] class. Juvenilehimself stated before this board that he is physically and mentallyfit and not suffering from any kind of disease. His I.Q. levelshows that he is mentally fit so it can not be said that he didnot know the consequences of acts alleged to be committedby him. During the personal hearing, juvenile admitted that heconfessed before this board but same was under pressure of CBI.During his statement he was asked a specific question that herequested from this board that he wants to reside with CBI but heanswered that he requested as CBI asked him to do so. It is notpossible that CBI tortured him, beaten him but despite that herequested to stay with CBI just on their asking. He also statedthat he knew very well that present case registered upon himregarding the murder of a child, he do not knew this name despitethe fact that child also learn music with him. He also stated thathe was the witness of this incident as he saw Prince first in injuredcondition. From the statement of juvenile recorded duringhis personal assessment, it indicates that he is matureenough and all these facts satisfied this board to concludethat juvenile Bholu was having sufficient maturity and ability AB

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to understand the consequences of action on the day ofalleged occurrence.

20. In view of the above discussion, this board of the consideredopinion that there is a need of trial of juvenile in conflict with lawBholu as an adult. Consequently, in view of Section 18(3) ofJuvenile Justice (Care & Protection of Children) Act, 2015 thecase stands transferred to the Ld. Special Children’s Court,Gurugram. Case file be put up before Ld. District & SessionsJudge, Gurugram with a request to transfer the same to Ld.Children Court having jurisdiction to try the matter. Juvenile inconflict with law Bholu Singh… Raghav is also directed to producebefore the Ld. District & Sessions Judge, Gurugram on 22.12.2017.File complete in all respect be sent to the court of Ld. District &Sessions Judge, Gurugram well in time.

(emphasis supplied)”

38. In appeal, on behalf of the respondent, similar arguments wereraised before the Children’s Court which also dealt with the same indetail and approved the decision taken by the Board. Relevant portion ofChildren’s Court’s order dated 21.05.2018 is reproduced below:

“17…………So impugned order cannot be said as having beenpassed without any application of mind and contrary to the statutoryprovisions. The statement of the ‘JCL’ before the Board recordedfor the purposes of preliminary assessment, the Expert Reports,the sequence of the occurrence running narrated by theinvestigating agency all are well reflecting the mental and physicalcapacity of the ‘JCL’ and the circumstances in which he allegedlycommitted the murder of ‘Prince’ and his ability to understand theconsequences of said offence and these all are straightawayrunning against the appellant.

18. It is not out of place to mention here that an order qua needfor trial of child as an adult required to be passed by the Board asper provisions contained under Section 18(3) of the Act aftermaking a preliminary assessment in case of heinous offences isonly on the basis of satisfaction of the Board by exercising itsjudicious acumen for which calling of expert opinion is also left athis discretion. By adding explanation to Section 15(1) it is clarifiedthat preliminary assessment is not a trial. No right to second appeal is provided under the Act against such an order. It all indicatedthat intention of legislation is to recognize the wisdom of the Boardregarding forum of trial of a child falling in the age of 16-18 yearsrunning charged with heinous offence. If there is no blatant misuseof said authority and no irregularity going to the depth of the matterthe discretion exercised by the Board is required to be honoured.

19. Before concluding, this court would also like to commentregarding statutory provisions contained under Sections 3(x) &99 of the Act as learned defence counsel have argued at lengthfor said provision. As per clause (I) of Section 99, all reportsrelated to child and considered by the Committee or the Boardshall be treated as confidential. The proviso attached to this clauseprescribes that Committee or the Board, as the case may be,may, if it so thinks fit, communicate the substance thereof toanother Committee, or Board or to the child or to the child’s parentor guardian, and may give such Committee or the Board or thechild or parent or guardian, an opportunity of producing evidenceas may be relevant to the matter stated in the report. Clause (II)of Section 99 then prescribes that notwithstanding anythingcontained in this Act, the victim shall not be denied access to theircase record, orders and relevant papers. Learned defence counselhas gone making much stress over the clause(II) and has goneasserting that since victim shall not be denied access to the caserecord and relevant papers as Section 3(x) while prescribinggeneral principles to be followed in administration of Act recognizesthe principle of equality and postulates that there shall be nodiscrimination against a child on any grounds including sex, casteand equality of access, opportunity and treatment, so child/’JCL’should also be given a right of access to the confidential reportsalso at par with the victim which Juvenile Justice Board has deniedto the appellant. This court finds no discrimination with the child/’JCL’ by the provisions of Section 99. Once Section 99 declaresall reports to be treated as confidential, then they are confidentialfor both the parties and even victim would not be having a right toobtain the certified copy of such a report in the name that victimshall not be denied access to the case record, orders and relevantpapers. The access to the victim to confidential reports is notpermitted in very words while granting him access to all otherrelevant papers and the case record under clause (II) of Section A

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A99, so clause (I) of Section 99 will prevail which restricts saidaccess to all and sundry. Since in the present matter no copy ofconfidential report has ever been supplied to victim, so it does liein the mouth of appellant/’JCL’ that he is being discriminated sofar the right to access to confidential reports is concerned.

B20. In view of the above discussions, the impugned order showthat the Juvenile Justice Board has considered the correctness,legality and propriety of the matter and did not act with anyirregularity at the time giving findings of fact relating to appellant.There is no illegality, perversity or infirmity in the impugned order.The appeal lacks merits and is liable to be dismissed. The appealCis, accordingly, dismissed. Papers be tagged with the main casefile of the trial titled as “State Vs. Bholu” running fixed for04.07.2018 for hearing the parties on the aspect of charge.”

39. The order of the Children’s Court dated 21.05.2018 waschallenged by way of criminal revision before the High Court. The HighDCourt allowed the criminal revision and after setting aside both theimpugned orders passed by the Additional Sessions Judge as also theBoard, remanded the matter to the Board for fresh consideration afterassessing the intelligence, maturity and physical fitness as to how thechild in conflict with law was in a position to know the consequences. ItEalso provided that the necessary exercise be taken within a period of sixweeks and further that while conducting the preliminary assessment thecertificate of the psychologist of the Government hospital be obtained.

40. What weighed before the High Court was:

(i) There was violation of principles of natural justice and fairFplay as adequate opportunity was not provided;

(ii) Copies of documents relied upon by the Board were notprovided to the respondent;

(iii) The reports of the experts were incomplete; G

(iv) The recommendation by the expert to refer the child tohigher organization for assessment was not acted upon bythe Board;

(v) The two tests conducted by the experts were apparentlynot relevant and related to children of different ages;H

(vi) That the Board and the Children’s Court had no materialbefore them to assess as to how the respondent knew theconsequences of the offence and also the circumstances inwhich he allegedly committed the offence; and

(vii) The findings by the Board and the Children’s Court werewithout any material and reasoning.

41. Relevant extracts from the judgment of the High Court are asunder:

“…The proviso to Section 15 enables the Board to take theassistance of any experienced psychologist or other experts tomake the Preliminary Assessment. It is clearly mentioned in paraNo.17 of order dated 20.12.2017 passed by the Board that incase, the opinion/assistance of any expert is required, the samebe taken. It is necessary to assess the mental capacity of thejuvenile. It was mandatory for the Board to assess the mentalcapacity of the alleged offender to commit such an offence andalso the ability to understand the consequences of the same. It isalso clear from the order that the clinical psychologist has himselfsuggested that if any further assessment is required, the juvenilemay be sent to the Institute of Mental Health at Rohtak. However,it has completely been ignored by the Board and the assessmentis based on inappropriate tests, namely, coloured ProgressiveMatrices (CPM) and Malin’s Intelligence Scale for India Children(MISIC) meant for children between the ages of 5-11½ and 5-15has been taken as the basis for the determination of the mentalcapacity of a child of 16½ years. Both the Board as well as theAppellate Authority have completely ignored this fact. Thepetitioner wanted to cross examine the psychologist regarding thesame but his request was declined and no permission was grantedto him. The social investigation report is also self contradictoryand the same is not worth considering. The copies of the tests, inquestion, were not provided to the petitioner/parents/guardian butwere shown just prior to the hearing of arguments. It was notpractically possible to understand 35 pages of the report by anylayman in a time period of less than 30 minutes. However, in atime period of 30 minutes, the petitioner got to have a look at therecord of Dr. Joginder Singh Kairo, Clinic Psychologist. It cameout that he had carried the assessment on the basis of two tests A

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i.e (i) Coloured Progressive Matrices (CPM) and (ii) Malin’sIntelligence Scale for Indian Children (MISIC). The petitioner(represented by his father) and his counsel were having no ideaabout these tests. Subsequently, they tried to find out and came toknow that those tests were absolutely irrelevant to the case of thepetitioner and could not be used for making the mental assessmentof the petitioner. The basic book on Clinical Child Psychologywritten by Radhey Sham and Azizuddin Khan categorically statesthat Malin’s test of Intelligence for children is made for 5 to 15years of children. Since the petitioner was 16.75 years old, whenthese tests were conducted on him, which were not correct testsand have resulted in wrong results. Said expert himself stated inhis report that it would be appropriate that further assessment bemade by a higher authority. This resulted in the petitioner doubtingthe credentials of the so called experts. Only because of thisreason, the petitioner not only sought copies of the reports butalso wanted to cross examine them so as to check the veracityand the credentials of the experts and their reports. However, hewas not allowed in spite of specific request and averments madeto that effect, leading to travesty of justice. The IQ test of thepetitioner was conducted when he was more than 16 years and 9months of age. An IQ of 95 at the age 16.75 would necessarilytranslate to 15.67 years, going by the formula for determining themental age of any child, which is mental age/Biological Age x100. This means that the petitioner-child has been determined tohave a mental age of less than 16 years as per the report of socalled expert. Even as per said report, the petitioner had to benecessarily treated to be below 16 years. As the tests in question,in any case, are for children below the age of 15 years, the IQ of95, determined by these tests, would obviously translate to a mentalage of much less than 15 years in any case….

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

However, learned counsel for the respondent-CBI has tried toconvince the Court by stating that the reports/documents are notrequired to be supplied by considering the factum of confidentiality.

The plea of confidentiality as submitted by learned counsel forthe respondent-CBI is actually for the protection of the child fromthird party by considering the privacy of the child. It cannot beinterpreted that a delinquent child would not get a fair hearing,whereas, it is the requirement of Section 8(3) of the Act that theparticipation of the child and the parent or guardian is to be atevery step of the process. Section 3 especially states that a positiveinterpretation has to be given to ensure that an environment iscreated so that the child should feel comfortable. Theconfidentiality is required with regard to third party just to protectthe interest of the child. All the reports related to the child andconsidered by the Committee or by the Board are required to betreated as confidential subject to the proviso.

Even the Central Bureau of Investigation has also admitted in theproceedings before the Board as well as the Appellate Authoritythat it does not have such officers, who are specially trained toundertake such investigation, involving children. Meaning thereby,it is clear that the Central Bureau of Investigation does not havesuch an infrastructure to conduct the investigation for reaching toits logical conclusion keeping in view the special provisons of theAct. All these grounds were mentioned before the AppellateAuthority but were not taken into consideration.

The argument raised by learned counsel for the respondent-CBIthat this Court has a limited jurisdiction to invoke in the revisionpetition, does not carry any weight because as per provisions ofSection 102 of the Act, in case, there is any illegality and perversityor there is non-compliance of mandatory provisions, this Courthas a power to exercise the revisional jurisdiction. This view hasbeen supported by the law laid down in cases Jagannath Choudharyvs Ramayan Singh 2002(2) RCR (Criminal) 813 and Rajinder Singhvs Vishal Dingra 2015(8) RCR (Criminal) 453.

In view of the facts and law position as discussed above, thepresent petition is allowed and impugned order dated 20.12.2017passed by the Juvenile Justice Board, Gurugram and order dated21.05.2018 passed by the Additional Sessions Judge, Gurugram A

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Aare set aside. The case is remanded back to the Board for afreshconsideration after assessing the intelligency, maturity, physicalfitness as to how the juvenile in conflict with law was in a positionto know the consequences of the offence. The necessary exercisebe done within a period of six weeks from the date of receipt ofcertified copy of the order. It is also relevant to mention here thatBwhile conducting preliminary assessment, the opinion ofpsychologist of the Government hospital be obtained.”

ARGUMENTS ON BEHALF OF COMPLAINANT-APPELLANT:

C42. The arguments of Mr. Sushil Tekriwal, learned counsel onbehalf of the complainant-appellant are summarised below:

(i) ‘Best interest of child’ or ‘presumption of innocence’ etc.does not mean immunity from criminal charges. Intent ofthe act is to reform the child in conflict with law and also toDsubject them to penal consequences.

(ii) Children aged 16-18, prosecuted for heinous crimes havebeen assigned a separate class by legislature, therefore,they may be denied the protective cover. The purpose ofthis Act is not to give shelter to accused of heinous offences.

E(iii)The respondent fulfils all the conditions laid down undersection 15 of the Act, 2015 and the Board had rightly heldthat he should be tried as an adult.

(iv) Law is clear that the Board ‘may’ take help of experiencedpsychologists, psycho-social workers or other experts. TheFword ‘may’ has to be read as ‘may’ only and the legislativecompetency to make the enactment in question is not incontroversy. Even section 101(2) of the Act, 2015 uses theword ‘may’ with respect to opinion of medical expert.

(v) Findings of the Medical Board should have been left toGmedical experts as Courts have no expertise in such matters.The opinion of the Medical Board is final and cannot bequestioned before the Court.

(vi) Social and medical report was provided to all thestakeholders. However, the request for cross-examinationHwas declined on the ground that section 15 is only a

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preliminary assessment and not a trial. Further, accordingto section 99 of the Act, 2015 all the reports related to thechild considered by the Board be treated as confidential.

(vii) Revisional jurisdiction of the High Court under section 102is limited with regard to the power to call for and examinethe records of an inferior Court in order to satisfy itself ofBthe legality and propriety of proceedings or orders made incases.

(viii) There is no illegality in concurrent findings of the two Courtsbelow. The High Court broadened its jurisdiction too far,going into correctness of the medical board report and theCcorrectness of various other factual aspects.

(ix) The issue of remanding the case for fresh consideration isredundant now in terms of its impossibility of performance.

(x) In support of the above submissions, Mr. Tekriwal has placedDreliance on the following judgments:

(a) Kishan Paswan v. UOI (Civil Misc. W.P. No. 5044of 2020){paras 28(97) and 35 (v)}, (b)Mukarrab v. State of UP, (2017) 2 SCC 210 (para27), E

(c) Controller of Defense Accounts (Pension) and ors.v. S. Balachandran Nair (2005) 13 SCC 128, (d)Amit Kapoor v. Ramesh Chander & Anr (2012)9 SCC 469 (paras 12 and 13), F

(e) Rajendra Rajoriya v. Jagat Narain Thapak andAnr (2018) 17 SCC 234, (f)Jabar Singh v. Dinesh (2010) 3 SCC 757, (g)Chandavarkar Sita Ratna Rao v. Ashalata S.Guram (1986) 4 SCC 447, G

(h) Madanlal Fakirchand Dudheya v. S. ChangdeoSugar Mills, 1962 AIR 1543,

(i) Chinnamar Kathiam v. Ayyavoo, AIR 1982 SC137, H

A(j)Jyoti Prakash Rai @ Jyoti Prakash v. State ofBihar, (2008) 15 SCC 223 and (k)Kent v. United States (383, US, 541, 1966).

ARGUMENTS ON BEHALF OF CBI-APPELLANT:

B43. The arguments of Shri Vikramjit Banerjee, learned AdditionalSolicitor General on behalf of the CBI-appellant are summarised below:

(i) The counsel for the CBI drew attention to the Statement ofObjects and Reasons of the Act, 2015, wherein the systemsunder the Act, 2000 are deemed as ill-equipped to tackle16-18 year old offenders, and an observation about a rapidincrease in heinous child offenders of the said age is alsoelucidated upon.

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(ii) The counsel also highlighted the provisions under section15 of the said Act which provide for preliminary assessmenton commission of heinous crimes by children above 16 yearsDto be conducted by the Board, which ‘may’ take theassistance of experienced psychologists, psycho-socialworkers, or other experts.

(iii) It was also submitted that this preliminary assessment isdistinct from a trial.

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(iv) The counsel also referred to section 103 of the Act, 2015,which lays down the requirement to follow as far as possible,procedure laid down by the Cr.P.C., during Board inquiriesfor trials of summons cases.

F(v)The counsel accentuated rules 10 and 10A of the ModelRules. Rule 10A permits the Board to take assistance frompsychological experts and social workers while making thepreliminary assessment which has been followed by theBoard.

(vi) Rule 10(5) which mandates the Child Welfare Police OfficerGto produce the statements of witnesses recorded by himand other documents produced during the course ofinvestigation within a month from the date of the child’sfirst production before the Board. Copies of the same to begiven to the child or his parent/guardian, were also broughtHforth and highlighted.

(vii) There is no requirement under the Act, 2015 for the finalAinvestigation to be completed before the preliminaryassessment takes place. Moreover, the Act, 2015necessitates abidance by the Cr.P.C. to the maximum extent,therefore, in line with the same, the accused cannot beprovided with the case diary during investigation. ReferenceBis also made to section 99 of the Act, 2015 regardingconfidentiality. Hence, the counsel contends that rule 10(5)of the Model Rules must be read down. The High Courtcommitted an error in holding otherwise.

(viii) For the preliminary assessment, the Board must considerthe mental and physical capacity of the child to commit theoffence, and this assessment has to be completed withinthree months of the child’s first production before the Boardafter which, a re-assessment is impermissible.

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(ix) The judgement of the High Court was also attacked byasserting that the requirement for cross-examination of thepsychologist, and supply of the expert’s reports to therespondent or his guardians prior to the passing of thepreliminary assessment was erroneous.

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(x) The requirement to complete the investigation within a monthfrom the first date of production of the child before theBoard and to supply a copy of the final report to the child orhis parents, prior to the making of the preliminary assessmentwas also called into doubt.

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(xi) The CBI attempted to prove its proper conduct by assertingthat Bholu was treated in a child-friendly manner, andexamined in line with the Act, 2015 and was apprehendedin the presence of his father and other requisite authorities.

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(xii) The CBI claims that Bholu was interviewed in a cautiousand friendly manner, in the presence of the Probation andChild Welfare Officer, along with independent witnesses.Moreover, he voluntarily admitted his involvement in themurder of Prince, and was sent to an Observation Home,post his apprehension, instead of being held in a lock up.

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(xiii) Since the CBI was not able to satisfactorily complete itsinvestigation, the Board granted three days of judicial custody H

Aof Bholu, wherein he was to be accompanied by a Boardmember, and placed at Seva Kutir (Observation Home),post his custody.

(xiv) In support of the above submissions, Mr. Vikramjit Bannerjihas placed reliance on the following judgments:B

(a) Balkaram v. State of Uttarakhand & Ors. (2017)7SCC 668, (b)Shilpa Mittal v. State of NCT & Another, Crl.Appeal No. 34 of 2020,

(c) G. Sundarrajan v. Union of India & Ors. (2013)6 SCC 620.

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ARGUMENTS ON BEHALF OF RESPONDENT-BHOLU:

44. The arguments of Mr. Siddharth Luthra, learned SeniorDAdvocate on behalf of the respondent are summarised below:

(i) The essential modification in the Act, 2015 is the exceptioncreated for the age of 16 to 18 years. In cases of heinousoffences, as defined under section 2(33) of the Act, 2015, achild can be treated as an adult subject to the inquiry to beEcarried out in terms of sections 14 and 15. This Court heldthat, while interpreting the scheme of the Act, the interestsof children should be protected and to treat them as adultsis an exception to the rule.

(ii) While conducting an inquiry under the Act, the Board hasFto keep in mind the overall scheme of the Act.

(iii) The Act, 2015 provides that the Investigating Officer mustbe a trained Police Officer, capable of dealing with childrenand designated as a Child Welfare Police Officer (CWPO).However, in this case the IO was not a designated CWPOGunder the Act. Section 107 further requires the creation ofa special juvenile police unit to “exclusively deal with thechildren” and with “aptitude, appropriate training andorientation”.

(iv) The child was kept in police lock-up and subsequently aHconfession was extracted from him which was relied upon by the Board. The same is contrary to rule 8(3)(v) and tothe principle of presumption of innocence enshrined undersection 3(i) of the Act, 2015 read with rule 10 A (3) of theModel Rules.

(v) Due to the non-submission of documents to the child priorto the hearing, sections 8(3)(a) and 8(3)(b), section 14(5)(c)as well as section 3 of the Act, 2015 were violated.Additionally, granting only 30 minutes was insufficient toperuse and scan through the record.

(vi) On the date of the psychological assessment, the respondentwas aged 16 years and 7 months. However, the testsadministered to him were appropriate for children upto 11years (CPM) and 15 years (Malins). According to thepsychologist, Dr Kairo, the respondent was found to becooperative and communicative. On the basis of the testsadministered his IQ was noted to be 95, and it was furthernoted “If required further assessment, he may be sent toInstitute of Mental Health, University of Health Sciences,Rohtak.”

(vii) The entitlement of respondent to access the records beforethe preliminary assessment takes place, is challenged bythe appellants under section 99 of the Act, 2015. Section14(5)(c) provides that every child brought before the Boardshall be heard and permitted to participate in the inquiryand rule 10(5) states that a copy of the statement of witnessesrecorded by him shall also be given to the child or parent orguardian of the child.

(viii) Reliance has been placed on the statement of the Hon’bleMinister for Women and Child Development in the LokSabha during the discussion on the Juvenile Justice (Careand Protection of Children) Bill, 2014 stating that theassessment of the Board is not one-sided and the Boardwill take due notice of the views of the child.

(ix) With respect to the plea of CBI to read down rule 10(5) ofthe Model Rules, the counsel submitted that reading downthe said rule was not raised before the High Court or thisCourt before filing of the written submissions. Alternatively, A

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a provision can be read down to save it from being declaredunconstitutional or illegal, which is not so in the presentcase. There being no challenge towards constitutionality,any attempt towards this would be in conflict with the objectsof the Act.

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B(x)By using words such as “clever” and reading the allegedconfession against him being a complete violation of Article20(3), the Board has clearly gone contrary to the principleof presumption of innocence provided under section 3(i) ofthe Act, 2015 read with rule 10A(3) Model Rules and section3(viii) which mandates that there shall be no adversarial orCaccusatory words used in involving a child.

(xi) The Board failed to take into account the statement of therespondent that CBI called him inside, beat him up and askedhim to speak and erroneously concluded that the respondenthad sufficient mental and physical capacity to commit theDoffence.

(xii) In the order dated 20.12.2017, the Board read the confessionof the respondent against him but later the Board statedthat at this stage it is not to be seen “whether juvenile inconflict with law is guilty or not, he confessed or not, ifEconfessed then it was voluntary or under pressure.”

(xiii) The circumstances in which the child allegedly committedthe offence were not put before the Board nor was thecharge-sheet placed to enable it to form its opinion.(xiv) The word “may’’ occurring in section 15 and sectionF101(2) has to be construed as “shall”.

(xv) It is to be noted that neither the SIR nor the report of Dr.Joginder Kairo indicate the mental age of the child. Dr.Kairo had advised a further assessment but the same wasnot done and the Board went ahead with determining theGage of the child.

(xvi) Section 102 of the Act allows for exercise of revisionaljurisdiction on the grounds of legality and propriety. TheHigh Court correctly noted the perversity in reasoning ofthe Board and the Sessions Court, consequently it rightlyHset aside the aforementioned orders.

(xvii) Respondent continues to remain in the observation homeAand has completed 4.5 years in custody. During his stay hehas interacted with people from all walks of life and wasaccused of different heinous offences. It would not bepossible to assess his mental and physical capacity andunderstanding at this stage. It would be in the interest ofBjustice that he may be treated as a child and not as an adult,since he has lost his valuable right under sections 14 and 15of the Act, 2015.

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(xviii) In support of the above submissions, Mr. Luthra has placedreliance on the following judgments: - C

(a) Shilpa Mittal v. State of NCT & Another, Crl.Appeal No. 34 of 2020(paras 1, 30, 31 and 34), (b)Bachahan Devi & Anr. v. Nagar Nigam,Gorakhpur, (2008) 12 SCC 372), D

(c) Ankush Shivaji Gaikwad v. State of Maharashtra(2013) 6SCC 770 (paras 52 and 53), (d)State of Bank of Travancore v. MohammedMohammed Khan (1981) 4 SCC 82 (paras 19 to23)

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(e) Som Prakash Rekhi v. Union of India (1981) 1SCC 449 (para 63)

(f) Pratap Singh v. State of Jharkhand, (2005) 3 SCC551 (Paras 7 and 10), (g)Salil Bali v. Union of India & Another, (2013)F7SCC 705 (paras 43 and 63), (h)Province of Bombay v. Kusaldas S. Advani, 1950SCR 621 (para 16)

(i) State of Andhra Pradesh v. A.P. Wakf Board, 2022SCC Online SC159 (para 143), G

(j) Superintendent & Remembrancer of legal affairsWest Bengal v. Satyen Bhowmik, (1981) 2SCC109 (paras 20 to 22), (k)Nitya Dharamananda v. Gopal Sheelum Reddy,(2018) 2SCC 93 (paras 5 to 9),H

A(l)In re: Criminal Trials Guidelines regardinginadequacies and Deficiencies v. State of AndhraPradesh and ors. (2021) 10 SCC 598 (para 11), (m)Union of India v. IND-Swift Laboratories Limited(2011) 4SCC 635, B

(n) Nazir Ahmad v. King Emperor 1936 ILR 372 (pg.378 to 383)

(o) The King v. Saw Min, 1938 SCC Online Rang 68(pg. 1,10)

(p) Mahabir Singh v. State of Haryana (2001) 7scc148 (pg. 19,21,22)

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(q) Opto Circuit India Ltd. v. Axis Bank (2021) 6SCC707 (para 14)

(r) Aloke Nath Dutta & Ors. v. State of Bengal, (2007)12 SCC 230 (para 104)

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(s) Sharat Babu Diguamarti v. NCT of Delhi, (2017)2 SCC 18 (para 37), (t)Philips India Ltd. v. Labour Court (1985) 3SCC103 (paras 15 to17)

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(u) Municipal Corporation of Delhi v. GirdharilalSapru, (1981) 2 SCC 758 (para 5)

(v) Ramgopal Ganpatrai Ruia v. State of Bombay,1958 SCR 618 (para 15)

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(w) Emperor v. N.G. Chatterji, ILR 1946 ALL 553(paras 5 to 8, 10, 14),

(x) Krishnan v. Krishnaveni (1997) 4SCC 241 (para8)

(y) Rajeshwar Singh v. Subrata Roy Sahara (2013)14 SCC 257 (Para 26); G

(z) Ashok Kumar Gupta v State of U.P. 1994 Supp(1) SCC 145 (Paras 58-60); (aa) Union Carbide Corp. v. Union of India (1991) 4SCC 584 (Para 83) and; H

(bb) On molding of relief – M. Siddiq (Dead) ThroughLegal Representative (Ram Janmabhumi TempleCase) v. Mahant Suresh Das & Ors. (2020) 1 SCC1 (Para 1024, 1026)

ANALYSIS:

EFFECT OF AN ORDER OF PRELIMINARYASSESSMENT

45. The order of preliminary assessment decides whether the childin conflict with law, falling in the age bracket of 16-18 years and havingcommitted heinous offence, is to be tried as an adult by the Children’sCourt or by the Board itself, treating him to be a child. There are twomajor consequences provided in the Act, 2015, if the child is tried as anadult by the Children’s Court. First, that the sentence or the punishmentcan go up to life imprisonment if the child is tried as an adult by theChildren’s Court, whereas if the child is tried by the Board as a child, themaximum sentence that can be awarded is 3 years. The second majorconsequence is that where the child is tried as a child by the Board, thenunder section 24(1), he would not suffer any disqualification attached tothe conviction of an offence, whereas the said removal of disqualificationwould not be available to a child who is tried as an adult by the Children’sCourt, as per the proviso to section 24(1). Another consequence, whichmay also have serious repercussions, is that as per section 24(2), wherethe Board or the Children’s Court, after the case is over, may direct thepolice or the registry that relevant records of such conviction may bedestroyed after the period of expiry of appeal or a reasonable period asmay be prescribed. Whereas, when a child is tried as an adult, the relevantrecords shall be retained by the relevant Court, as per the proviso tosection 24(2).

46. These consequences are serious in nature and have a lastingeffect for the entire life of the child. It is well settled that any order thathas serious civil consequences, reasonable opportunity must be afforded.The question is of what would be a reasonable opportunity in a casewhere a preliminary assessment is to be made by the Board under section15.

SOCIAL INVESTIGATION REPORT (SIR)

47. Preparation of SIR is a statutory requirement for every childin conflict with law, which is to be prepared by the Probation Officer or A

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Aany other agency as may be directed by the Board. Its format is alsoprovided in Form 6 to the Model Rules. The object of getting an SIRprepared is to obtain as much as possible information about the backgroundof the child. It has as many as 48 columns to be filled up and thereafter,the Probation Officer is to submit his opinion also. In the present case,the SIR was submitted by the Legal Probation Officer on 27.11.2017.BThe SIR is a relevant material to be considered by the Board to take adecision while passing any orders regarding bail or after inquiry orpreliminary assessment.

PSYCHOLOGIST’S REPORT

C48. The report of the psychologist dated 05.12.2017 only spellsout the IQ of the child to be 95 and also that further assessment, ifrequired, could be made. The relevant extracts from the aforementionedreport are reproduced hereunder.

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DFor assessment of his mental capacity, assessment wascarried out.

Impression: IQ - 95, average intelligence.

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If required further assessment, he may be sent to theInstitute of Mental Health, University of Health Sciences,Rohtak.

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49. A perusal of the above report clearly mentions that it was onlyfor the purpose of assessing the mental capacity of the child. The reportdid not mention anything about the child’s knowledge of the consequencesof committing the alleged offence, nor did it mention about thecircumstances leading to the alleged offence. No such assessment wasGcarried out as, apparently the Board only required the opinion on themental capacity of the child.

NATURAL JUSTICE/REASONABLE OPPURTUNITY

50. The Board and the Children’s Court have relied upon section99 of the Act, 2015 to hold that they were not required to provide theH

copies of the material on record available in the form of SIR, the reportof the psychologist, and other material. On the other hand, the HighCourt relied upon rule 10(5) of the Model Rules to hold that the documentsought to have been provided to the child or his guardian or his lawyer asthe case may be, and this having not been done, it was a case wherereasonable opportunity had been denied.

51. Section 99 provides that all reports relating to the child andconsidered by the Committee or the Board are to be treated asconfidential. The proviso to section 99(1) gives the power to theCommittee or the Board to communicate the substance thereof to anotherCommittee or Board or the child, his parents or guardian, and may alsogive such Committee or Board or the child or parent or guardian, anopportunity to produce evidence as may be relevant to the matter statedin the report. Section 99(2) states that the victim would not be deniedaccess to the case record, relevant documents and papers.

52. Maintaining confidentiality has a different purpose but in nocase can it be said that to maintain confidentiality, the relevant materialwould not be provided to the child or his guardian or parents. It would bein complete contravention of the settled principles of criminaljurisprudence. Concept of confidentiality used in section 99 is to preventthe reports from coming in public domain or shared in public. Its availabilitywill be confined to the parties to the proceedings and the parties shouldalso refrain from sharing it with third parties. Section 99(2) begins withthe non obstante clause and proceeds to direct that the victim shouldnot be denied access to the case report, orders and relevant papers.Once the legislature’s intention is to provide material to the victim therecould never be an intention in the name of confidentiality to deny suchaccess to the records to the child or his parents or guardians. The Boardand the Children’s Court committed an illegality in not providing thedocuments as demanded by misinterpreting section 99 of the Act, 2015.

53. In the present case, the SIR and the report of the expertpsychologist was not provided to the respondent or his parents orguardians. An application was filed on behalf of the respondent forsupplying such material which was denied by the Board by a detailedorder dated 13.12.2017. The Board only extended the liberty to the counseland the parent or the guardian to look into these reports for 30 minutesbefore the hearing commenced.

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54. It has been argued on behalf of the respondent that firstly,these documents ought to have been provided to them; and secondly,half an hour was too little a time to go through the contents of thevoluminous SIR (running into 35 pages) which contained severalstatements; and thirdly, they had no opportunity to lead evidence in rebuttalby way of cross-examination or submitting documents.

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55. Another violation of principles of natural justice/opportunityaddressed on behalf of the respondent was on the report of thepsychologist, which only provided the IQ level of the child and nothingmore. An application was also filed on behalf of the respondent to leadevidence in rebuttal to the report of the psychologist and to cross-examineCthe psychologist as the tests applied by the psychologist in his reportwere not the relevant tests for a child aged 16.5 years. The tests appliedwere applicable to children up to the age of 15 years. This request madeon behalf of the respondent was also denied by the Board by a detailedorder dated 13.12.2017.

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56. Another aspect urged on behalf of the respondent was to theeffect that the report of the psychologist suggested/recommended thatthe child may be got examined further by the Institute of Mental Health,University of Health Sciences, Rohtak. According to the learned counselfor the respondent, the Board committed an error by not getting furtherEexamination carried out by a superior institution. Once the psychologistcarrying out the tests had given a report and he was himself not sure ofhis own report and had suggested for assessment by a superior institution,the Board ought to have obtained further report.

57. Yet another aspect which goes to violation of a fair opportunitywas, rejection of the application filed on behalf of the respondent beforeFthe Board to defer the proceedings of preliminary assessment till suchtime the compliance of rule 10(5) of the Model Rules is not made. Thematerial collected by the Child Welfare Police Officer in the form ofstatement of witnesses and other documents during the course ofinvestigation which was to be made within a period of one month, oughtGto have been awaited and a copy of the same should have been providedto the respondent or his parents or guardian as this would be relevant forpreliminary assessment.

58. In view of the above, the argument of Mr. Vikramjit Banerjee,learned counsel for CBI, on two counts needs to be rejected. Firstly, ruleH10(5) of the Model rules should be read down as being in conflict with section 99 of the Act, 2015 and secondly, that no material collected duringinvestigation could be provided to the accused till such time the policereport under section 173(2) Cr.P.C. is filed and the cognizance is takenby the Magistrate under section 190 and the stage of section 207/208Cr.P.C. is reached. The Act, 2015, being a special Act, will have anoverriding 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 asthey are not in conflict with the special provisions contained in the Act,2015.

TIMELINE

59. There is a timeline provided for the inquiry, submission of theSIR, preliminary assessment and the investigation under the Act, 2015and the Model Rules:

i.The inquiry by the Board under section 14(1) is to becompleted within a period of four months from the date offirst production of the child before the Board, and it couldbe extended by a period of two more months by the Boardfor the reasons to be recorded as per section 14(2).

ii.Section 14(3) provides that a preliminary assessment undersection 15 should be disposed of by the Board within aperiod of three months from the date of first production ofthe child before the Board.

iii.Under section 14(4) it is provided that if the inquiry by theBoard under section 15 for petty offences remainsinconclusive even after the extended period, the proceedingsshall stand terminated.

iv.Under the proviso to section 14(4) dealing with the seriousor heinous offences, in case the Board requires furtherperiod of time for completion of inquiry, the same may begranted by the Chief Judicial Magistrate or, as the casemay be, the Chief Metropolitan Magistrate, for reasons tobe recorded.

v.Under section 8(3)(e), SIR is to be submitted by theProbation Officer or the Child Welfare Officer or a socialworker within a period of fifteen days from the date of firstproduction of the child before the Board.

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Avi.In rule 10(5) of the Model Rules, in case of heinous offencescommitted by a child between the age of 16 to 18 years,the Child Welfare Police Officer shall produce the statementof witnesses recorded by him and other documents preparedduring the course of investigation within a period of onemonth from the date of first production of the child beforeBthe Board.

60. The timeline given under the various provisions as referred toabove, has a rationale. The SIR to be submitted within fifteen days wouldfacilitate the Board in taking a decision on the request for bail at theearliest. The period of one month given under rule 10(5) is to facilitateCthe Board to take a decision may be on a pending bail matter or forpreliminary assessment for which three months’ time is provided. Thecompletion of inquiry within four months or any extended period is toensure that a child is not subjected to unnecessary long and lengthyprocesses of trials and inquiries and that the matter is taken to its logicalDconclusion at the earliest.

61. In the present case, despite request of the respondent to deferthe preliminary assessment till such time as the material under rule 10(5)was provided, was rejected by the Board on 13.12.2017 and the Boardproceeded to make an order of preliminary assessment within a weekEthereafter on 20.12.2017. The child had been taken into custody andwas produced before the Board for the first time on 08.11.2017. Thethree months’ period for preliminary assessment would have continuedtill 07.02.2018. The Board could have, rather ought to have, waited forthe report and material under rule 10(5) of the Model Rules. Similarly,once the report of the psychologist suggested that if further examinationFis required then the respondent ought to have been referred to aspecialised institute in Rohtak but this suggestion was also not acceptedby the Board without cogent reason.

PRELIMINARY ASSESSMENT

G62. The obligation of the Board in making the preliminaryassessment on the four counts mentioned in section 15 of the Act islargely dependent upon the wisdom of the Board without there beingany guidelines as to how the Board would conduct such preliminaryassessment. In the absence of any such framework or guidelines, theBoard has to use its discretion in taking into consideration whateverHmaterial it deems fit for assessing the four attributes.

(a) In the present case, the Board and the Children’s Court,relying upon the statement given by the child at the time offirst appearance before the Board, the second statementgiven by the child at a later stage, the SIR and the report ofthe psychologist indicating an IQ level of 95, have held thatthe respondent had the mental capacity to commit theoffence.

(b) Insofar as the physical capacity is concerned, the Boardand the Children’s Court have taken into consideration thebuilt of the child and his age to hold that he had the physicalcapacity to commit the nature of the alleged assault.

(c) The Board relied upon the fact that the respondent wasstudying in class 11[th]; he had stated that he is physicallyand mentally fit and not suffering from any disease; his IQlevel shows that he is mentally fit and as such it cannot besaid that he did not know the consequences of thealleged offence to be committed by him. From thestatement of the respondent recorded during his personalassessment, it was indicated that he was mature enough.All these facts satisfied the Board that the respondent was having sufficient maturity and ability to understandthe consequences of his action.

(d) The order of the Board does not anywhere refer to itsassessment regarding the circumstances in which therespondent allegedly committed the offence. However, whatappears is that the Board relied upon the SIR.

63. In the present case, the Board and the Children’s Court reliedheavily on the psychologist’s report which only reflected the IQ of therespondent to be of average level bearing a score of 95 to hold that therespondent had the mental capacity to commit the offence and also abilityto know the consequences of the offence. The Board and the Children’sCourt both have also recorded that the recommendation of the psychologistto send the respondent for further assessment to the Institute of MentalHealth, University of Health Sciences, Rohtak was not necessary as,according to them, the IQ findings were sufficient for them to arrive atthe preliminary assessment.

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A64. Section 15 and rule 10A provide that the Board may take theassistance of psychologists, psycho-social workers, or other experts whohad experience of working with children in difficult circumstances.According to the learned counsel for the appellants, the word ‘may’should be read as ‘may’ only i.e., the Board in its discretion may or maynot take the assistance of such experts whereas on behalf of theBrespondent, it has been strenuously contended that the word ‘may’ shouldbe read as ‘shall’ and it should be mandatory for the Board to takeopinion or assistance from such experts before passing an order ofpreliminary assessment. This aspect is dealt with at a later stage.

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65. While considering a child as an adult one needs to look at his/Cher physical maturity, cognitive abilities, social and emotionalcompetencies. It must be mentioned here that from a neurobiologicalperspective, the development of cognitive, behavioural attributes like theability to delay gratification, decision making, risk taking, impulsivity,judgement, etc. continues until the early 20s. It is, therefore, all the moreDimportant that such assessment is made to distinguish such attributesbetween 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 regulateEemotions effectively, then intellectual insight/knowledge may take a backseat.

67. We are in agreement with the reasoning given by the HighCourt that further assessment ought to have been carried out once thepsychologist had recommended so and had also suggested the name ofthe institute. The Board and the Children’s Court apparently were of theFview that the mental capacity and the ability to understand theconsequences of the offence were one and the same, that is to say thatif the child had the mental capacity to commit the offence, then heautomatically had the capacity to understand the consequences of theoffence. This, in our considered opinion, is a grave error committed byGthem.

68. The language used in section 15 is “the ability to understandthe consequences of the offence”. The expression used is in pluralityi.e., “consequences” of the offence and, therefore, would not just beconfined to the immediate consequence of the offence or that theHoccurrence of the offence would only have its consequence upon the victim but it would also take within its ambit the consequences whichmay fall upon not only the victim as a result of the assault, but also on thefamily of the victim, on the child, his family, and that too not only immediateconsequences but also the far-reaching consequences in future.Consequences could be in material/physical form but also affecting themind and the psychology of the child for all times to come. Theconsequences of the offence could be numerous and manifold whichcannot be just linked to a framework; and, for this purpose, the overallpicture as also future consequences with reference to the facts of thecase are required to be consciously analysed by the Board.

69. Consequences for the victim could be his death, or permanentphysical disability, or an injury which could be repaired or recovered; theimpact of the offence on the mind of the victim may be prolonged andcontinue for his lifetime; the impact on the family and friends of thevictim, both mental and financial; consequence on the child going intoincarceration; mental impact on the child, it could be repentance orremorse for life, the social stigma cast on the child and his familymembers; the consequences of litigating and so many other things whichwould be difficult to adumbrate.

70. A child with average intelligence/IQ will have the intellectualknowledge of the consequences of his actions. But whether or not he isable to control himself or his actions will depend on his level of emotionalcompetence. For example, risky driving may result in an accident. But ifemotional competence is not high, the urge for thrill seeking may get thebetter of his intellectual understanding.

71. Children may be geared towards more instant gratificationand may not be able to deeply understand the long-term consequencesof their actions. They are also more likely to be influenced by emotionrather than reason. Research shows that young people do know risks tothemselves. Despite this knowledge, adolescents engage in riskierbehaviour than adults (such as drug and alcohol use, unsafe sexualactivity, dangerous driving and/or delinquent behaviour). While they doconsider risks cognitively (by weighing up the potential risks and rewardsof a particular act), their decisions / actions may be more heavilyinfluenced by social (e.g. peer influences) and/or emotional (e.g.impulsive) tendencies. In addition, the lack of experience coupled withthe child’s limited ability to deeply understand the long-term consequencesof their actions can lead to impulsive / reckless decision making.

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A72. Coming to the last count, i.e., the assessment regarding thecircumstances in which the offence is alleged to be committed is againan attribute which could have many factors to be considered beforesuch an assessment could be made. There could be a number of reasonsfor a person to commit a crime. It could be enmity, it could be poverty, itcould be greed, it could be perversity in mind and many others. ThereBcould be coercion. There could be threat to one’s life and property. Therecould be allurement in terms of the material and physical gains. Crimecould be committed on account of stress or depression also. It could beon account of the company that one keeps. One could commit crime inorder to help his family and friends. All these and many more could beCtermed as circumstances leading to the commission of crime.

73. The preliminary assessment has been a question of debates,analysis and research. The National Law University, Orissa, incollaboration with UNICEF, made a detailed study on the practice ofpreliminary assessment under the Act, 2015. To the said report is annexedDas Annexure 4, the Guidance Notes on Preliminary Assessment Reportsfor Children in Conflict in Law developed by the Department of Childand Adolescent Psychiatry, NIMHANS[9], Bengaluru. It would beworthwhile to mention here that NIMHANS, Bengaluru is one of thepremier institutions involved in the research and study of psychology,and is a world-renowned centre for mental health, neurosciences andEallied fields. The contents of the Guidance Notes referred to above arereproduced below- “Guidance Notes on Preliminary Assessment Report for Children in Conflict with LawFDepartment of Child & Adolescent Psychiatry, NIMHANS,Bengaluru The preliminary assessment uses information from the detailedpsychosocial and mental health assessment (that is done first) andpresents that information as outlined below.

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A. Mental & Physical Capacity to Commit Alleged Offence The child’s ability to make social decisions and judgmentsare compromised due to:

H9 National Institute of Mental Health and Neurosciences.

(i) Life skills deficits (emotional dysregulation/ difficultyAcoping with peer pressure/ assertiveness & negotiationskills /problem-solving/ conflict-resolution/ decision-making).

(ii) Neglect / poor supervision by family/poor family rolemodelsB

(iii) Experiences of abuse and trauma

(iv) Substance abuse problems

(v) Intellectual disability

(vi) Mental health disorder/ developmental disabilityC

(vii) Treatment/ interventions provided so far D

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B. Circumstances of Alleged Offence

(i) Family history and relationships (child’s livingarrangements, parental relationships, child’s emotionalrelationship & attachment to parents, illness &alcoholism in the family, domestic violence and maritaldiscord if any).

(ii) School and education (child’s school attendance, Lastgrade attended, reasons for child not attending school-whether it is due to financial issues or lack ofmotivation, school refusal, corporal punishment).

(iii) Work experience/ Child labour (why the child had towork/ how child found the place of work, where he wasworking / hours of work and amount of remunerationreceived, was there any physical/emotional abuse bythe employer and also regarding negative influence thechild may have encountered in the workplace regardingsubstance abuse etc).

(iv) Peer relationships (adverse peer influence in thecontext of substance use/ rule-breaking/inappropriatesexual behaviour/school attendance)

(iv) Experiences of trauma and abuse (physical, sexual &emotional Abuse experiences) 3 (vi) Mental healthdisorders and developmental disabilities: (Mental healthdisorders and developmental disabilities that the childmay have).

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DC. Child’sKnowledge of Consequences of Committing theAlleged Offence (A brief about the child’s understanding of social/Einterpersonal and legal consequences of committing offence alongwith the child’s insights regarding committing such an offence).

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D. Other Observations & Issues

E. Recommendations

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PROVISO TO SECTION 15(1) DIRECTORY ORCMANDATORY:

74. The world acknowledges that children in conflict with lawshould be treated differently than adults in conflict with law. The reasonis that the mind of the child has not attained maturity and it is stilldeveloping. Therefore, the child should be tested on different parametersDand should be given an opportunity of being brought into the main streamif, during his juvenility, has acted in conflict with law. To understandpsychology of the child, huge rounds of studies have been made not onlyrecently but from age old times and child psychology is a subject whichis being studied world over and there are institutes specifically dealingEwith the developments and research on the said subject. The enactmentsdealing with children are enacted world over.

75. It is to be noted that child psychology is a specialised branchof development psychology, its genesis is based on the premise thatchildren and adults have a different thought process. The individualisedFassessment of adolescent mental capacity and ability to understand theconsequences of the offence is one of the most crucial determinants ofthe preliminary assessment mandated by section 15 of the Act, 2015.The report of the preliminary assessment decides the germane questionof transferring the case of a child between 16 to 18 years of age to theGChildren’s Court. This evaluation of ‘mental capacity and ability tounderstand the consequences’ of the child in conflict with law can, in noway, be relegated to the status of a perfunctory and a routine task. Theprocess of taking a decision on which the fate of the child in conflictwith law precariously rests, should not be taken without conducting ameticulous psychological evaluation.

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76. As already noticed, the Board consists of three members, oneis a Judicial Officer First Class and two social workers, one being awoman. The social worker appointed as a member could be having adegree in child psychology or psychiatry but it is not necessary. As such,the constitution of the Board may not necessarily be having an expertchild psychologist. It is for all the above reasons that it has been providednot only in sections 15 and 101(2) but also under the Model Rules thatassistance may be taken from an expert psychologist. Having regard tothe framework of the Act, 2015 and the Model Rules and the purpose ofpreliminary assessment in terms of Section 15 as also looking to thevaried composition of the Board, we are of the view that where theBoard is not comprising of a practicing professional with a degree inchild psychology or child psychiatry, the expression “may” in the provisoto section 15(1) would operate in mandatory form and the Board wouldbe obliged to take assistance of experienced psychologists or psycho-social workers or other experts. However, in case the Board comprisesof at least one such member, who has been a practicing professionalwith a degree in child psychology or child psychiatry, the Board maytake such assistance as may be considered proper by it; and in case theBoard chooses not to take such assistance, it would be required of theBoard to state specific reasons therefor.

77. It is a well settled principle of interpretation that the word‘may’ when used in a legislation by itself does not connote a directorymeaning. If in a particular case, in the interests of equity and justice itappears to the court that the intent of the legislature is to convey astatutory duty, then the use of the word “may” will not prevent the Courtfrom giving it a mandatory colour. This Court in Bachahan Devi v.Nagar Nigam, Gorakhpur[10], held as under:

“18. It is well settled that the use of the word “may” in astatutory provision would not by itself show that the provisionis directory in nature. In some cases, the legislature may usethe word “may” as a matter of pure conventional courtesyand yet intend a mandatory force. In order, therefore, tointerpret the legal import of the word “may”, the court has toconsider various factors, namely, the object and the schemeof the Act, the context and the background against which the AB

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Awords have been used, the purpose and the advantages soughtto be achieved by the use of this word, and the like. It isequally well settled that where the word “may” involves adiscretion coupled with an obligation or where it confers apositive benefit to a general class of subjects in a utility Act,or where the court advances a remedy and suppresses theBmischief, or where giving the words directory significancewould defeat the very object of the Act, the word “may” shouldbe interpreted to convey a mandatory force. As a general rule,the word “may” is permissive and operative to conferdiscretion and especially so, where it is used in juxtapositionCto the word “shall”, which ordinarily is imperative as itimposes a duty. Cases, however, are not wanting where thewords “may”, “shall” and “must” are used interchangeably.In order to find out whether these words are being used in adirectory or in a mandatory sense, the intent of the legislatureshould be looked into along with the pertinent circumstances.”D

78. Similarly, this Court in Dhampur Sugar Mills Ltd. v. State ofU.P.[11], held:

“36. ….In our judgment, mere use of word “may” or “shall”is not conclusive. The question whether a particular provisionEof a statute is directory or mandatory cannot be resolved bylaying down any general rule of universal application. Suchcontroversy has to be decided by ascertaining the intentionof the legislature and not by looking at the language in whichthe provision is clothed. And for finding out the legislativeintent, the court must examine the scheme of the Act, purposeFand object underlying the provision, consequences likely toensue or inconvenience likely to result if the provision is readone way or the other and many more considerations relevantto the issue.”

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

80. Before we close, it would be pertinent to mention that thecase laws relied upon by the learned counsel for the parties do not requiredeliberation in view of the findings recorded by us on various issues.

CONCLUSION

81. We are conscious of the fact that the power to make thepreliminary assessment is vested in the Board and also the Children’sCourt under sections 15 and 19 respectively. The Children’s Court, onits own, upon a matter being referred to under section 18(3), would stillexamine whether the child is to be tried as an adult or not, and if it wouldcome to the conclusion that the child was not to be tried as an adult thenit would itself conduct an inquiry as a Board and pass appropriate ordersunder section 18. Thus, the power to carry out the preliminary assessmentrests with the Board and the Children’s Court. This Court cannot delveupon the exercise of preliminary assessment. This Court will only examineas to whether the preliminary assessment has been carried out as requiredunder law or not. Even the High Court, exercising revisionary powerunder section 102, would test the decision of the Board or the Children’sCourt with respect to its legality or propriety only. In the present case,the High Court has, after considering limited material on record, arrivedat a conclusion that the matter required reconsideration and for which, ithas remanded the matter to the Board with further directions to takeadditional evidence and also to afford adequate opportunity to the childbefore taking a fresh decision.

82. In arriving at the conclusion, the High Court firstly held thatthere was denial of adequate opportunity to the respondent. The list ofdocuments, copies of the documents, copies of the statement, the SIRnot being provided to the respondent, was in clear violation of rule 10(5)of the Model Rules.

83. Despite specific request for cross-examining the experts whohad given the report, the same was not provided to the respondent. Thetests conducted by the expert psychologists were not applicable or could A

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Anot have been applied to a child above the age of 15 years. It could havebeen applied only for children below the age of up to 15 years in one testand up to 11.5 years in the other test. The psychologist had suggestedfor further assessment by a superior facility, which was not accepted bythe Board without cogent reason.

B84. The mental age as per the applicable formula based on the IQof the child would be less than 16 years. The Board, provided only 30minutes time to the child, his lawyer, his father and also to the counselfor CBI to peruse the 35 pages of the report, which was too little toperuse and comprehend and give any evidence in rebuttal. The CBIcounsel had admitted that it did not have officers or the requiredCinfrastructure to conduct the investigation under the Act, 2015. For allthe above reasons, the High Court remitted the matter to the Boardafter setting aside both the orders of the Board and the Children’s Courtto consider afresh and assess the intelligence, maturity, physical fitnessand as to how the child in conflict with law was in a position to know theDconsequences of the offence. The exercise was to be undertaken withina period of six weeks. The High Court further directed that whileconducting the preliminary assessment afresh, opinion of the psychologistof the Government Hospital (Institute of Mental Health, University ofHealth Sciences, Rohtak) be obtained. This Court may not agree withthe reasoning given by the High Court on all counts and also the directionEgiven for conducting further tests. However, we have no hesitation inagreeing with the ultimate result of the High Court in remanding thematter for a fresh consideration after rectifying the errors on lack ofadequate opportunity.

85. The High court taking into consideration all these aspects setFaside the order of the Board, and remanded the matter and also directedfor getting further examination of the child, and this exercise was to beundertaken within 6 weeks. Today, after 3½ years, we are not in a positionto give an opinion as to whether any further test can be carried out atthis stage as the age of the child is now more than 21 years. However,Gwe leave it to the discretion of the Board or the psychologist who maybe consulted as to whether any fresh examination would be of anyrelevance/assistance or not. We have already referred to in detail thekind of analysis or assessment required to be made under section 15.The Act, 2015 or the Model Rules do not lay down any guidelines orframework to facilitate the Board in making a proper preliminaryH

assessment on the relevant aspects. The only liberty given to the Boardis to obtain assistance of an experienced psychologist or a psycho-socialworker or other expert. In the present case, the only assistance taken isto get the mental IQ of the child. Beyond that, regarding the ability tounderstand the consequences and also the circumstances in which thealleged offence was committed, no report was called for from anypsychologist.

86. In view of the above, both the appeals are dismissed.

87. Before concluding, we may indicate that the task of preliminaryassessment under section 15 of the Act, 2015 is a delicate task withrequirement of expertise and has its own implications as regards trial ofthe case. In this view of the matter, it appears expedient that appropriateand specific guidelines in this regard are put in place. Without muchelaboration, we leave it open for the Central Government and the NationalCommission for Protection of Child Rights and the State Commissionfor Protection of Child Rights to consider issuing guidelines or directionsin this regard which may assist and facilitate the Board in making thepreliminary assessment under section 15 of the Act, 2015.

88. We also make it clear that any observations made in our orderwhich may be touching the merits of the case was only for the purposeof deciding these appeals and the same would in no way influence theBoard or the Children’s Court or the High Court. They may proceed todecide the matters objectively on merits in accordance with law.

Bibhuti Bhushan Bose

Appeals dismissed.

(Assisted by : Shubhanshu Das, LCRA)

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