Chattisgarh High Court
Abc vs State Of Chhattisgarh on 2 September, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1 / 18
2024:CGHC:33685
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved for Order on : 03.07.2024
Order Passed on : 02/09/2024
CR.R. No. 473 of 2024
ABC
---- Applicant
versus
State Of Chhattisgarh, Through : Station House Officer, Police Station
Arang, District : Raipur, Chhattisgarh
---- Respondent
For Applicant : Mr. C.R. Sahu, Advocate
For Respondent/State : Mr. Vinay Pandey, Dy.A.G.
Hon'ble Shri Justice Parth Prateem Sahu
C A V ORDER
1. This revision is filed by the juvenile in conflict with law challenging the order dated 19.10.2023, passed in Criminal Appeal No.178 of 2023, whereby the Appellate Court has dismissed the appeal filed against against the order of Principal Magistrate, Juvenile Justice Board, Mana Camp, Raipur (In short, "the Board") under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 Digitally signed by BALRAM (Hereinafter referred to as "the Act of 2015"). PRASAD DEWANGAN Date: 2024.09.03 14:19:00 +0530 2 / 18
2. Learned counsel for applicant submits that applicant was arrested in connection with Crime No.126/2023 for the offence under Section 302, 376, 511 of the Indian Penal Code. As the applicant was less than 18 years of age on the alleged commission of offence, he was produced before the Board. According to the provision under Section 15 of the Act of 2015, the Board initiated the proceedings of preliminary assessment has taken the help of psychiatrists. Relying upon the report of psychiatrists that child is psychologically normal has passed an order that, it will be proper for trial of the case of the applicant by Children Court. The order of the Board was not in conformity with the scheme of the Act of 2015 and the Rules framed thereunder and therefore, it was challenged in an appeal before the Appellate Court U/s. 101 of the Act of 2015 and learned Appellate Court also without considering the object of the Act and the provisions under the Rule 10A of the Rules, 2016 in an appropriate manner dismissed the appeal.
3. Learned State counsel opposes the submission of learned counsel for applicant and would submit that the Board after production of child in conflict with law in connection with the alleged commission of offence has taken recourse of the provision under Section 15 of the Act, 2015 immediately, has initiated the proceedings of preliminary assessment because the applicant on the date of commission of offenc was above 17 years and less than 18 years of age. He contended that according to Rule 10 A of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 has taken the assistance of psychologist and 3 / 18 based on the report Board has passed an order that child in conflict with law has been assessed to be affirmative for heinous offence and accordingly directed for trial of the applicant by Children Court. The order of the Board was affirmed in appeal. The Appellate Court has also considered the report of psychiatrist and dismissed the appeal while affirming the order of the Board. Hence it does not call for any interference.
4. I have heard learned counsel for parties.
5. Along with covering memo, applicant had filed the certified copy of the order passed under Section 15 of the Act, 2015 by the Board and the report of the psychiatrist dated 26.07.2023. Perusal of the report would show that applicant was examined only by one psychiatrist. Based on the examination/consultation with child in conflict with law, assessment chart is prepared for arriving at conclusion which reproduced as under :-
**5- fu"d"kZ&
S.No Area Raw Percentile Stanine Level of
Score Rank Grade problem
1. Family 11 P 23 3-4 Below Average
2. School/ 06 P24 3-4 Below Average
College
3. Social 03 P 39 3-4 Below Average
4. Personal 04 P7 1-2 Extremely Low
5. Entire 24 P14 3-4 Below Average."
6. Perusal of the above chart would show that out of five columns of assessment, four columns have been shown to be below average 4 / 18 and one to be extremely low and psychiatrist in its report concluded that child is normal.
7. Before proceeding further I find it appropriate to extract the provisions under Section 15 of the Act of 2015 as also the Rule 10-A of the Rules of 2016 for ready reference, which reads as under :-
"Section. 15. Preliminary assessment into heinous offences by Board. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.
Explanation.--For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974):5 / 18
Provided that the order of the Board to dispose of the matter shall be {appealable} under sub-section (2) of section 101.
Provided further that the assessment under this section shall be completed within the period specified in section 14.
Rule.10-A. -- Preliminary assessment into heinous offences by Board. --(1) The Board shall in the first instance determine whether the child is of sixteen years of age or above; if not, it shall proceed as per provisions of section 14 of the Act.
(2). For the purpose of conducting a preliminary assessment in case of heinous offence, the Board may take the assistance of psychologists or psychosocial workers or other experts who have experience of working with children in difficult circumstances. A panel of such experts may be made available by the District Child Protection Unit, whose assistance can be taken by the Board or could be accessed independently.
(3) While making the preliminary assessment, the child shall be presumed to be innocent unless proved otherwise.
(4) Where the Board, after preliminary assessment under section 15 of the Act, passes an order that there is a need for trial of the said child as an adult, it shall assign reasons for the same and the copy of the order shall be provided to the child forthwith."
8. The object of Act of 2015 is to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child, the United 6 / 18 Nations Standard Minimum Rules for the Administration of Juvenile Justice.
9. Section 2 (12) of the Act of 2015 defines "child" means a person who has not completed eighteen years of age. Section 2 (13) defines "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. Section 2 (9) defines "best interest of child" means the basis for any decision taken regarding the child, to ensure fulfillment of his basic rights ad needs, identity, social well-being and physical, emotional and intellectual development. Section 2 (33) defines "heinous offence" includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more.
10. In the case at hand, applicant is a child in conflict with law has allegedly committed the offence under Section 302, 376, 511 of the Indian Penal Code, which falls within the definition of heinous offence as defined under Section 2 (33) of the Act of 2015. The offence which is committed is a heinous offence. For the said reason, the Board invoking the provisions under Section 15 of the Act of 2015 has proceeded for preliminary assessment of juvenile, who was above 17 years and less than 18 years.
11. Hon'ble Supreme Court in case of Barun Chandra Thakur Vs. Master Bholu & Anr., reported in (2022) 10 SCR 595 while 7 / 18 considering the issue with regard to preliminary assessment of the juvenile in conflict with law observed thus :-
"64. Section 15 and rule 10A provide that the Board may take the assistance of psychologists, psycho-social workers, or other experts who had 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 may not take the assistance of such experts whereas on behalf of the respondent, it has been strenuously contended that the word 'may' should be read as 'shall' and it should be mandatory for the Board to take opinion or assistance from such experts before passing an order of preliminary assessment. This aspect is dealt with at a later stage.
65. While considering a child as an adult one needs to look at his/ her physical maturity, cognitive abilities, social and emotional competencies. It must be mentioned here that from a neurobiological perspective, the development of cognitive, behavioural attributes like the ability to delay gratification, decision making, risk taking, impulsivity, judgement, etc. continues until the early 20s. It is, therefore, all the more important that such assessment is made to distinguish such attributes between a child and an adult.
66. Cognitive maturation is highly dependent on hereditary factors. Emotional development is less likely to affect cognitive maturation. However, if emotions are too intense and the child is unable to regulate emotions effectively, then intellectual insight/knowledge may take a back seat.8 / 18
67. We are 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, in our considered opinion, is a grave error committed by them.
68. The language used in section 15 is "the ability to understand the consequences of the offence". The expression used is in plurality i.e., "consequences" of the offence and, therefore, would not just be confined to the immediate consequence of the offence or that the 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. Consequences could be in material/physical form but also affecting the mind and the psychology of the child for all times to come. The consequences of the offence could be numerous and manifold which cannot be just linked to a framework; and, for this purpose, the overall picture as also future consequences with reference to the facts of the case are required to be consciously analysed by the Board.
69. Consequences for the victim could be his death, or permanent physical disability, or an injury which could be 9 / 18 repaired or recovered; the impact of the offence on the mind of the victim may be prolonged and continue for his lifetime; the impact on the family and friends of the victim, both mental and financial; consequence on the child going into incarceration; mental impact on the child, it could be repentance or remorse for life, the social stigma cast on the child and his family members; the consequences of litigating and so many other things which would be difficult to adumbrate.
70. X X X X X
71. Children may be geared towards more instant gratification and may not be able to deeply understand the long-term consequences of their actions. They are also more likely to be influenced by emotion rather than reason. Research shows that young people do know risks to themselves. Despite this knowledge, adolescents engage in riskier behaviour than adults (such as drug and alcohol use, unsafe sexual activity, dangerous driving and/or delinquent behaviour). While they do consider risks cognitively (by weighing up the potential risks and rewards of a particular act), their decisions / actions may be more heavily influenced by social (e.g. peer influences) and/or emotional (e.g. impulsive) tendencies. In addition, the lack of experience coupled with the child's limited ability to deeply understand the long-term consequences of their actions can lead to impulsive / reckless decision making.
72. Coming to the last count, i.e., the assessment regarding the circumstances in which the offence is alleged to be committed is again an attribute which could have many factors to be considered before such an assessment could be made. There could be a number of reasons for a person to commit a crime. It could be 10 / 18 enmity, it could be poverty, it could be greed, it could be perversity in mind and many others. There could be coercion. There could be threat to one's life and property. There could be allurement in terms of the material and physical gains. Crime could be committed on account of stress or depression also. It could be on account of the company that one keeps. One could commit crime in order to help his family and friends. All these and many more could be termed as circumstances leading to the commission of crime."
12. In the aforementioned decision, Hon'ble Supreme Court has also taken note of the debates, analysis and research of preliminary assessment as also the study of the National Law University, Orissa in collaboration with UNICEF for preliminary assessment under the Act of 2015 had also extracted "Guidance Notes on Preliminary assessment Report for Children in Conflict with Law Department of Child and Adolescent Psychiatry, NIMHANS, Bengaluru, which reads as under :-
"Guidance Notes on Preliminary Assessment Report for Children in Conflict with Law Department of Child & Adolescent Psychiatry, NIMHANS, Bengaluru The preliminary assessment uses information from the detailed psychosocial and mental health assessment (that is done first) and presents that information as outlined below.
A. Mental & Physical Capacity to Commit Alleged Offence.
The child's ability to make social decisions and judgments are compromised due to:11 / 18
(i) Life skills deficits (emotional dysregulation/ difficulty coping with peer pressure/ assertiveness & negotiation skills /problem-solving/ conflict-resolution/ decision-
making).
(ii) Neglect / poor supervision by family/poor family role models
(iii) Experiences of abuse and trauma (iv) Substance abuse problems
(v) Intellectual disability
(vi) Mental health disorder/ developmental disability
(vii) Treatment/ interventions provided so far. Guidance Notes For this section, the professional filling out the preliminary assessment form is simply required to mark off against each item (a tick mark to indicate 'yes' and an X mark to indicate 'no') whether or not the child is compromised in this particular area. The information is drawn from relevant sections of the detailed psychosocial and mental health proforma, which contain information on :
how a child's abilities to make appropriate social decisions and judgements (which translate into actions and behaviours) have been affected by the child's life circumstances and mental health or developmental problems.
For item (i) on life skills deficits, refer to Section 6, 'Life Skills Deficits and Other Observations of the Child' and sub-section 6.1. on 'Life Skills Deficits'.
For item (ii), refer to Section 2, sub-section 2.1. on 'Family Issues Identified'. For item (iii) on experiences of abuse and trauma, refer to Section 3, 'Trauma 12 / 18 Experiences : Physical, Sexual and Emotional Abuse Experiences'.
For items (iv) and (vi) on substance abuse problems and mental health disorders/developmental disability, refer to Section 5, 'Mental Health Concerns'.
For item (v) on intellectual disability, you may rely on your judgement based on your interaction with the child during the entire process of administering the psychosocial and mental health proforma--if the child was unable to respond to most questions or responded 2 in an age- appropriate manner (like a younger child would, demonstrating little understanding of many things asked or discussed), then you may suspect that he/she has intellectual disability. (Following this, it would be useful and necessary to confirm this through relevant IQ testing conducted by psychologists located in mental health facilities).
For item (vii), you may have enquired from the child, during the assessment, about whether he/she has received any professional assistance or treatment for any mental health issues/family problems or life skills deficits that he/she has. (Generally, children in the Observation Home have never received any treatment or interventions for their problems).
In actual fact, everyone, except someone with serious physical disability (the type that severely impacts locomotor skills) or with intellectual disability, has the mental and physical capacity to commit offence. So, to ask whether a given child has the mental and physical capacity to commit offence, in simplistic terms, is likely to elicit the answer 'yes' in most cases. And just because someone has the physical and mental capacity to commit an 13 / 18 offence, does not mean that they will or that they have. Therefore, a dichotomous response as elicited by this question posed by the JJ Act is of little use in making decisions regarding child who has come into conflict with the law. Thus, in response to the problems resulting from a simplistic dichotomous response to the physical-mental capacity question, we have adopted a more detailed, descriptive and nuanced interpretation.
As per the preliminary assessment report we have developed, mental and physical capacity to commit offence is the ability of a child to make social decisions and judgments, based on certain limitations that the child may have. In other words, a child's abilities to make social decisions and judgments are compromised due to life skills deficits, neglect/poor supervision by family/poor family role models, experiences of abuse and trauma, substance abuse problems, intellectual disability, and/or mental health disorder/developmental disability. Such issues (if untreated) adversely impact children's world view, and their interactions with their physical and social environment, thereby placing them at risk of engaging in antisocial activities."
13. The important factor to be considered at the time of preliminary assessment is of circumstances, in which the juvenile in conflict with law allegedly committed the offence and the guiding factors as per the study of the National Law University, Orissa and extracted in the aforementioned decision, is extracted below for ready reference :-
B. Circumstances of Alleged Offence
(i) Family history and relationships (child's living arrangements, parental relationships, child's emotional relationship & attachment to parents, illness & alcoholism 14 / 18 in the family, domestic violence and marital discord if any).
(ii) School and education (child's school attendance, Last grade attended, reasons for child not attending school- whether it is due to financial issues or lack of motivation, school refusal, corporal punishment).
(iii) Work experience/ Child labour (why the child had to work/ how child found the place of work, where he was working / hours of work and amount of remuneration received, was there any physical/emotional abuse by the employer and also regarding negative influence the child may have encountered in the workplace regarding substance abuse etc).
(iv) Peer relationships (adverse peer influence in the context of substance use/ rule-breaking/ inappropriate sexual behaviour/school attendance)
(iv) Experiences of trauma and abuse (physical, sexual & emotional Abuse experiences) 3 (vi) Mental health disorders and developmental disabilities: (Mental health disorders and developmental disabilities that the child may have).
Guidance Notes All of the above information for this section is to be documented as it is in the detailed psychosocial and mental health assessment, drawing on relevant sections from the detailed assessment, so as to present the factors and circumstances that made the child vulnerable to committing offence.
Information for the first four heads needs to be drawn from Section 2, Social History, of the psychosocial and mental health proforma--which contains details on 15 / 18 family, school, institution and peer issues; Information for the fifth item on trauma, needs to be drawn from Section 3, Trauma Experiences : Physical, Sexual, and Emotional Abuse Experiences' of the psychosocial assessment form; For the sixth item on Mental Health Disorders, Section 5, 'Mental Health Concerns' (including substance abuse) from the psychosocial assessment form, would need to be used.
It is important to recognize that 'Circumstances of the Offence' does NOT refer to proximal factors i.e. what happened right before the offence incident took place. This is because proximal factors have a history which is important to recognize--there is a whole set of factors and life events that led up to the decisions and actions to just before the offence as well as the offence itself. Therefore, 'circumstances' are interpreted as life circumstances and a longitudinal approach is taken to understanding vulnerabilities and pathways to offences. This entails events and circumstances starting from the child's birth (or starting with the mother's pregnancy experiences) to the current date. This is the universal approach to history-taking in child and adolescent mental health, to be able to understand children's emotions and behaviours based on their contexts and experiences, as they have played out over several years (and so it is not actually specific to children in conflict with the law)."
14. In the report submitted by the experts to the Board it does not deal with the aforementioned aspects, which are relevant in view of the language used under Section 15 of the Act of 2015 like family history and relationship, school and education, work with which the juvenile was engaged at the time of commission of offence, peer relationships, whether he has been trauma and abuse (physical, 16 / 18 sexual and emotional abuse experience), mental health disorders/developmental disability.
15. The Act of 2015 enacted with laudable object of "best interest of child"
therefore, at the time of conducting preliminary assessment of a child each provisions and the words used is to be given its fullest meaning so as to achieve the object of the Act of 2015. Rule 10 A (3) envisages that at the time of preliminary assessment child should be presumed to be innocent unless proved otherwise, therefore, while assessing the understanding of the juvenile, the consequences of the offences allegedly committed the mindset of the assessing Committee or the Board should be that the juvenile before it is innocent.
16. Provision under Rule 10A of the Rules, 2016, which is the procedure for preliminary assessment into the heinous offence by the Board provides that for the purpose of conducting a preliminary assessment in case of heinous offence, Board may take assistance of psychologists or psychosocial workers or other experts who have experience of working with children in difficult circumstances. The word used psychologists or psychosocial workers or other experts is in plural form in the provisions under Rule 10A (2) of the Rules, 2016. From the language used under Rule 10A of the Rules, 2016, it appears that intention of the law makers to examine the child in conflict with law are by more than one psychologist or psychosocial worker or expert, therefore, the words are in plural form, whereas the report available in the record and considered by the Board is a report 17 / 18 of one psychologist. Report of psychologist also do not mention the understanding of the juvenile, the consequences of the offence allegedly committed.
17. The appeal was filed before the Appellate Court under the provisions of Section 101 of the Act, 2015. Sub-section (2) of Section 101 envisages that the Court may, while deciding the appeal, take the assistance of experienced psychologists and medical specialists other than those whose assistance has been obtained by the Board in passing the order under the said section. In this provision also, the experts are referred in plural form and further it provides jurisdiction to the Appellate Court also to take assistance of experts psychologist and medical specialists other than those whose assistance has been obtained. In the case at hand the Appellate Court has not taken recourse of the said provision under the Act, 2015.
18. The purpose of preliminary assessment is not only to assess the mental and physical capacity of the child in conflict with law to commit such offence but also to assess the ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence. In the report submitted by the psychologist and considered by the Board and the Appellate Court, this specific assessment is not specifically mentioned.
19. For the forgoing discussion I am of the view that impugned order dated 19.10.2023 (Annexure P-1) in the opinion of this Court is not sustainable in the eyes of law and accordingly it is set-aside. The matter is remitted back to the Appellate Court for considering the 18 / 18 appeal afresh keeping in mind the provisions under Sub-section (2) of the Section 101 of the Act, 2015.
20. Accordingly, the revision is partly allowed. Sd/-
Sd/-
(Parth Prateem Sahu) Judge Balram