Juvenile Justice (Care and Protection of Children) Act, 2015 – s.15 – Proviso to s. 15(1) – Directory or Mandatory – Held: Well settled principle of interpretation that the word ‘may’ when used in a legislation by itself does not connote a directory meaning – If in a particular case, in interest of equity and justice it appears to the court that the intent of the legislature is to convey a statutory duty, then the use of the word “may” will not prevent the Court from giving it a mandatory colour – Looking to the purpose of the Act, 2015 and its legislative intent, particularly to ensure the protection of best interest of the child, the expression “may” in the proviso to s.15(1) thereof and the requirement of taking assistance of experienced psychologists or psycho-social workers or other experts would operate as mandatory unless the Board itself comprises of at least one member who is a practicing professional with a degree in child psychology or child psychiatry – Moreover, in case the Board, in view of its own composition with at least one member, who is a practicing professional with a degree in child psychology or child psychiatry, chooses not to take such assistance, it would record specific reasons 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” – The expression used is in plurality i.e., “consequences” of the offence and, therefore, would not just be confined to the immediate consequence of the offence – Consequences could be in material /physical form but also affecting the mind and the psychology of the child for all times to come – Individualised assessment of adolescent mental capacity and ability to understand the consequences of the offence is one of the most crucial determinants of the preliminary assessment mandated by s.15 – The report of the preliminary assessment decides the germane question of transferring the case of a child between 16 to 18 years of age to the Children’s Court – This evaluation of ‘mental capacity and ability to understand the consequences’ of the child in conflict with law can, in no way, be relegated to the status of a perfunctory and a routine task – The process of taking a decision on which the fate of the child in conflict with law precariously rests, should not be taken without conducting a meticulous psychological evaluation.
Juvenile Justice (Care and Protection of Children) Act, 2015 – Social Investigation Report (SIR) – Relevance – Held: Preparation of SIR is a statutory requirement for every child in conflict with law, which is to be prepared by the Probation Officer or any other agency as may be directed by the Juvenile Justice Board – The object of getting an SIR prepared is to obtain as much as possible information about the background of the child – SIR is a relevant material to be considered by the Board to take a decision while passing any orders regarding bail or after inquiry or preliminary assessment. 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 Social Investigation Report (SIR), preliminary assessment and investigation under the Act, 2015 and the Model Rules – Object and Rationale – Held: The timeline given under the various provisions, has a rationale – The SIR to be submitted within fifteen days would facilitate the Board in taking a decision on the request for bail at the earliest – The period of one month given under r.10(5) is to facilitate the Board to take a decision may be on a pending bail matter or for preliminary assessment for which three months’ time is provided – The completion of inquiry within four months or any extended period is to ensure that a child is not subjected to unnecessary long and lengthy processes of trials and inquiries and that the matter is taken to its logical conclusion at the earliest. Juvenile Justice (Care and Protection of Children) Act 2015 – s.15 – Task of preliminary assessment u/s.15 is a delicate task with requirement of expertise and has its own implications as regards trial of the case – Appropriate and specific guidelines in this regard – Central Government and the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to consider issuing guidelines or directions which may assist and facilitate the Juvenile Justice Board in making preliminary assessment u/s.15.
Dismissing the appeals, the Court
HELD: 1. The consequences of being tried as an adult are serious in nature and have a lasting effect for the entire life of the child. It is well settled that any order that has serious civil consequences, reasonable opportunity must be afforded. The question is of what would be a reasonable opportunity in a case where a preliminary assessment is to be made by the Juvenile Justice Board under Section 15 the Juvenile Justice (Care and Protection of Children) Act, 2015. [Para 46][639-G]
2. A perusal of the psychologist’s report clearly mentions that it was only for the purpose of assessing the mental capacity of the child. The report did not mention anything about the child’s knowledge of the consequences of committing the alleged offence, nor did it mention about the circumstances leading to the alleged offence. No such assessment was carried out as, apparently the Board only required the opinion on the mental capacity of the child. [Para 49][640-F-G]
3. 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 of the Act, 2015 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 99(2) begins with the non obstante clause and proceeds to direct that the victim should not be denied access to the case report, orders and relevant papers. Once the legislature’s intention is to provide material to the victim there could never be an intention in the name of confidentiality to deny such access to the records to the child or his parents or guardians. The Board and the Children’s Court committed an illegality in not providing the documents as demanded by misinterpreting section 99 of the Act, 2015. [Para 52][641-D-F]
4. In the present case, despite request of the respondent to defer the preliminary assessment till such time as the material under rule 10(5) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 was provided, was rejected by the Board on 13.12.2017 and the Board proceeded to make an order of preliminary assessment within a week thereafter on 20.12.2017. The child had been taken into custody and was produced before the Board for the first time on 08.11.2017. The three months’ period for preliminary assessment would have continued till 07.02.2018. The Board could have, rather ought to have, waited for the report and material under rule 10(5) of the Model Rules. Similarly, once the report of the psychologist suggested that if further examination is required then the respondent ought to have been referred to a specialised institute in Rohtak but this suggestion was also not accepted by the Board without cogent reason. [Para 61][644-E-F]
5. This Court is in agreement with the reasoning given by the High Court that further assessment ought to have been carried out once the psychologist had recommended so and had also suggested the name of the institute. The Board and the Children’s Court apparently were of the view that the mental capacity and the ability to understand the consequences of the offence were one and the same, that is to say that if the child had the mental capacity to commit the offence, then he automatically had the capacity to understand the consequences of the offence. This is a grave error committed by them. The language used in section 15 is “the ability to understand the consequences of the offence”. The expression used is in plurality i.e., “consequences” of the offence and, therefore, would not just be confined to the immediate consequence of the offence or that the occurrence of the offence would only have its consequence upon the victim but it would also take within its ambit the consequences which may fall upon not only the victim as a result of the assault, but also on the family of the victim, on the child, his family, and that too not only immediate consequences but also the far-reaching consequences in future. [Paras 67 and 68][646-F-H; 647-A-B]
6.1. The power to make the preliminary assessment is vested in the Juvenile Justice Board and also the Children’s Court under sections 15 and 19 respectively of the Juvenile Justice (Care and Protection of Children) Act, 2015. The Children’s Court, on its own, upon a matter being referred to under section 18(3), would still examine whether the child is to be tried as an adult or not, and if it would come to the conclusion that the child was not to be tried as an adult then it would itself conduct an inquiry as a Board and pass appropriate orders under section 18. Thus, the power to carry out the preliminary assessment rests with the Board and the Children’s Court. This Court cannot delve upon the exercise of preliminary assessment. This Court will only examine as to whether the preliminary assessment has been carried out as required under law or not. Even the High Court, exercising revisionary power under section 102, would test the decision of the Board or the Children’s Court with 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 reconsideration and for which, it has remanded the matter to the Board with further directions to take additional evidence and also to afford adequate opportunity to the child before taking a fresh decision. [Para 81][657-C-F]
6.2. In arriving at the conclusion, the High Court firstly held that there was denial of adequate opportunity to the respondent. The list of documents, copies of the documents, copies of the statement, the SIR not being provided to the respondent, was in clear violation of rule 10(5) of the Model Rules. [Para 82][657-G]
6.3. Despite specific request for cross-examining the experts who had given the report, the same was not provided to the respondent. The tests conducted by the expert psychologists were not applicable or could not have been applied to a child above the age of 15 years. It could have been applied only for children below the age of up to 15 years in one test and up to 11.5 years in the other test. The psychologist had suggested for further assessment by a superior facility, which was not accepted by the Board without cogent reason. [Para 83][657-H; 658-A]
6.4. The mental age as per the applicable formula based on the IQ of the child would be less than 16 years. The Board, provided only 30 minutes time to the child, his lawyer, his father and also to the counsel for CBI to peruse the 35 pages of the report, which was too little to peruse and comprehend and give any evidence in rebuttal. The CBI counsel had admitted that it did not have officers or the required infrastructure to conduct the investigation under the Act, 2015. For all the above reasons, the High Court remitted the matter to the Board after setting aside both the orders of the Board and the Children’s Court to consider afresh and assess the intelligence, maturity, physical fitness and as to how the child in conflict with law was in a position to know the consequences of the offence. The exercise was to be undertaken within a period of six weeks. The High Court further directed that while conducting the preliminary assessment afresh, opinion of the psychologist of the Government Hospital (Institute of Mental Health, University of Health Sciences, Rohtak) be obtained. This Court may not agree with the reasoning given by the High Court on all counts and also the direction given for conducting further tests. However, this Court agrees with the ultimate result of the High Court in remanding the matter for a fresh consideration after rectifying the errors on lack of adequate opportunity. [Para 84][658-B-E]
6.5. The High court taking into consideration all these aspects set aside the order of the Board, and remanded the matter and also directed for getting further examination of the child, and this exercise was to be undertaken within 6 weeks. Today, after 3½ years, one is not in a position to give an opinion as to whether any further test can be carried out at this stage as the age of the child is now more than 21 years. However, it is left to the discretion of the Board or the psychologist who may be consulted as to whether any fresh examination would be of any relevance/assistance or not. The Act, 2015 or the Model Rules do not lay down any guidelines or framework to facilitate the Board in making a proper preliminary assessment on the relevant aspects. The only liberty given to the Board is to obtain assistance of an experienced psychologist or a psycho-social worker or other expert. In the present case, the only assistance taken is to get the mental IQ of the child. Beyond that, regarding the ability to understand the consequences and also the circumstances in which the alleged offence was committed, no report was called for from any psychologist. [Para 85][658-F-H; 659-A-B]
6.6. The task of preliminary assessment under section 15 of the Act, 2015 is a delicate task with requirement of expertise and has its own implications as regards trial of the case. In this view of the matter, it appears expedient that appropriate and specific guidelines in this regard are put in place. It is open for the Central Government and the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to consider issuing 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. [Para 87][659-C-D]
Bachahan Devi v. Nagar Nigam, Gorakhpur (2008) 12 SCC 372 : [2008] 2 SCR 424 and Dhampur Sugar Mills Ltd. v. State of U.P. (2007) 8 SCC 338 : [2007] 10 SCR 245 – relied on.
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As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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