Decided on 13.07.2022
Bench: Dinesh Maheshwari and Vikram Nath
About The Author
Praveena. C is currently working as Research Assistant at High Court of Kerala. She has graduated in BBA LL.B and LL.M, both from Government Law College, Thrissur.
FACTS
A class II boy was found unconscious with his throat slit in the toilet of his school.Though he was rushed to hospital, he was declared dead.
Initially the State Police on suspicion arrested three persons, a driver of the school vehicle and two officials of the school, but later on they were released on bail.
Subsequently, the case was transferred to the CBI who arrested a class XI student of the same school aged 16 years 05 months and 05 days as on the relevant date following interrogations.
The respondent was then produced before the Board by the CBI and placed in a safety home.
The Social Investigation Report was prepared and submitted by the Legal Probation Officer.
Board also called for a report from the expert psychologist, also interacted with the respondent, considered the SIR as also other material placed before it and proceeded to pass an order upholding trial of respondent as an adult and accordingly, directed for transfer of papers to the Children’s Court.
Following the dismissal of the appeal by the Children’s court, the respondent preferred a Criminal Revision before the High Court. The revision was allowed and directed the Board to decide the matter afresh within six weeks.
Assailing the order of the High Court, two special leave petitions were filed before the SC by the complainant Barun Chandra and the CBI.
ISSUE
The impact of preliminary assessment under Section 15 of the JJ Act directing the child to be tried as an adult
TIME LINE OF PROCEEDINGS TILL NOW
1.The Board after considering all the four aspects of section 15 regarding mental capacity and physical capacity to commit the offence, ability to understand the consequences of the offence and the circumstances under which alleged offence was committed, came to the conclusion that respondent should be tried as an adult and, accordingly, passed an order under section 18(3).
2. Before children’s court the Juvenile Justice Board has considered the correctness, legality and propriety of the matter and did not act with any irregularity at the time of 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.
3. Order of children’s court was challenged before High Court which allowed the criminal revision and after setting aside both the impugned orders and remanded the matter to the Board for fresh consideration after assessing the intelligence, maturity and physical fitness as to how the child in conflict with law was in a position to know the consequences. It also provided that the necessary exercise be taken within a period of six weeks and further that while conducting the preliminary assessment the certificate of the psychologist of the Government hospital be obtained.
ANALYSIS
I. Effect of preliminary assessment The order of preliminary assessment decides whether the child in conflict with law, falling in the age bracket of 16-18 years and having committed heinous offence, is to be tried as an adult by the Children’s Court or by the Board itself, treating him to be a child.
1.The sentence or the punishment can go up to life imprisonment if the child is tried as an adult by the Children’s Court, whereas if the child is tried by the Board as a child, the maximum sentence that can be awarded is 3 years.
2. where the child is tried as a child by the Board, then under section 24(1), he would not suffer any disqualification attached to the conviction of an offence , whereas the said removal of disqualification would not be available to a child who is tried as an adult by the Children’s Court, as per the proviso to section 24(1).
3. As per section 24(2), where the Board or the Children’s Court, after the case is over, may direct the police or the registry that relevant records of such conviction may be destroyed after the period of expiry of appeal or a reasonable period as may be prescribed. Whereas, when a child is tried as an adult, the relevant records shall be retained by the relevant Court, as per the proviso to section 24(2).
Further, the Supreme Court explained that the term ‘consequence’ under section 15(1) does not mean only immediate consequences, but also far-reaching ones in the future. The assessment of this attribute cannot be limited to the victim only; it must include what may fall upon the family of the victim, the child, and their family, as per the court.
II.Providing copies of material on record to the child
In the case at hand, the Board and the Children’s Court relied upon section 99 of the Act, 2015 to hold that they were not required to provide the copies of the material on record available in the form of Social Investigation Report (SIR), the report of the psychologist, and other material. On the other hand, the High Court relied upon rule 10(5) of the Model Rules to hold that the documents ought to have been provided to the child or his guardian or his lawyer as the case may be, and this having not been done, it was a case where reasonable opportunity had been denied.
The Supreme Court observed that: The bench has sought to limit this discretion by holding that looking at the purpose of the 2015 Act and its legislative intent, particularly to ensure the protection of the best interest of the child, the expression “may” in the proviso to Section 15(1) and in Rule 10A(2) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 relating to the requirement of taking assistance of experienced psychologists or psycho-social workers or other experts, would operate as mandatory. The Supreme Court held that looking at the purpose of the 2015 Act and its legislative intent, particularly to ensure the protection of the best interest of the child, the expression “may” in the proviso to Section 15(1) and in Rule 10A(2) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 relating to the requirement of taking assistance of experienced psychologists or psycho-social workers or other experts, would operate as mandatory. “Maintaining confidentiality has a different purpose but in no case can it be said that to maintain confidentiality, the relevant material would not be provided to the child or his guardian or parents. It would be in complete contravention of the settled principles of criminal jurisprudence. Concept of confidentiality used in Section 99 is to prevent the reports from coming in public domain or shared in public. Its availability will be confined to the parties to the proceedings and the parties should also refrain from sharing it with third parties.”
Section -3 of the Juvenile Justice Act 2015 states the principles of care and protection of children:
1. Principle of the Best Interest of the Child- “Best interest of the child” signifies the reason for any choice taken with respect to the child, to guarantee satisfaction of his fundamental rights and needs, character, social prosperity and physical, enthusiastic and scholarly improvement.
2. The Principle of Presumption of Innocence- It will be regarded all through the procedure of justice and protection, from the underlying contact to elective consideration, including aftercare. Any unlawful behavior of a child which is done for endurance, or is because of environmental or situational factors or is done under the control of adults, or peer groups.
3. Principle of Right to maintain privacy and Confidentiality- Each child has an option to the right of his protection and privacy by all methods and all through the legal procedure. No report of the juvenile will be distributed that may prompt the recognition of the juvenile but to the situations where the exposure of their distinguishing proof identity would cause protection of them.
4. Principle of equality and non-discrimination- That there shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child. Every single suitable measure should be taken to ensure that the child is secured against all types of discrimination or punishment based on the status, activities, expressed opinions or convictions of the child’s parents, lawful guardians, or family members.
5. Principle of Participation- The child should be provided with an opportunity to being involved and the child who is capable of forming his or her own views has the right to express those views freely in all matters which is affecting the child’s growth and development, the views of the child is given due importance in accordance with the age and maturity of the child.
6. Principle of institutionalization- It is a measure of last resort, in certain circumstances the family is not capable of taking care of the well being of the child and when the child has no family to be cared for and there is no one to look after the child, the government must make alternative provisions.
7. Principle of Diversion- Diversion presents a few preferences when contrasted with the conventional criminal justice framework which can be excessively unbending, awkward, slow and inert to the necessities of children who are often first-time or non-genuine offenders. Police are the first point of contact between the juvenile and the juvenile justice Board or the court and as such the police think that it is not essential to proceed for the juvenile to the judicial bodies on the consideration that the rights of the child, protection of the society and the rights of the victims, they may divert the juvenile from the formal court processes based on the acts and rules.
8. Principles of Natural Justice- Every child should be treated fairly and equally, regardless of his or her race, ethnicity, colour, gender, language, religion, political or another opinion, national, ethnic or social origin, property, disability, and birth or another status. In certain cases, special services and protection will need to be instituted to ensure children’s rights are met equally.
9. Principle of Family Responsibility- Guardians or parents of a juvenile must be associated with the groundwork for the inquiry and trial and be available when it happens. They ought to be educated by police, investigators or judges that a conventional request will happen and that they are welcome to join in.
10. Principle of Dignity and worth- The treatment of the child will be predictable with the child’s feeling of pride and worth. Every single person is brought into the world free and equivalent in poise and rights. They are invested with reason and conscience and should act towards each other in a soul of fellowship (Article I of UN Declaration Human Rights). All children will be managed with respect due to their inherent dignity and human beings.
11. Principle of Safety- The state has a greater responsibility for ensuring the safety of every child in its care and protection, without resorting to restrictive measures and processes in the name of care and protection.
12. Principle of Positive Measures- The main theme of the principle is the promotion of the wellbeing of the juveniles. The characters and behaviors of the juveniles shall be corrected and reformed by following positive measures.
13. Principle of non-stigmatizing Semantics- The principle of non-stigmatizing semantics proposes not to utilize words that are utilized in ordinary criminal procedures, choices, and activities that may stigmatize the juveniles. The rule command to maintain a strategic distance from the utilization of antagonistic or accusatory words, for example, capture, remand, blame, charge sheet, preliminary, indictment, warrant, summons, conviction, detainee, reprobate, ignored, custody or prison.
14. Principle of non-waiver of Rights- The Constitution of India carefully precludes the waiver of rights. The equivalent is epitomized in the juvenile justice system in India. The legal rights enforced by the Juvenile Justice Act should not be postponed under any circumstances by any juvenile, competent authority and stakeholder working under the juvenile justice system. Also, further, the non-exercise of fundamental rights doesn’t add up to the waiver of the equivalent.
15. Principle of Repatriation and Restoration- States that it shall be ensured that a child shall not be separated from his or her parents against their will. However, the Board or the Court considers the separation is necessary for the best interests of the child in accordance with the law and procedures, such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
16. Principle of Fresh Start- The principle of fresh start promotes a new beginning for the juvenile in conflict with the law. This rule also instructs to destroy all past records of the juvenile within a stipulated period. They are ensured to erase all their past records.
DECISION
Dismissing both the appeals the court held that the task of preliminary assessment under section 15 of the Act, 2015 is a delicate task requiring expertise and has its own implications as regards trial of the case. So, it appears expedient that appropriate and specific guidelines in this regard are to be put in place. And it also directed the Central Government and the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to issue guidelines or directions in this regard which may assist and facilitate the Board in making the preliminary assessment under section 15 of the Act, 2015.
