Allahabad High Court
Ayush Shukla vs State Of U.P. And Another on 10 October, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 27.8.2025 Delivered on 10.10.2025 HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL REVISION No. - 3690 of 2025 Ayush Shukla ..Revisionist(s) Versus State of U.P. and another ..Opposite Party(s) Counsel for Revisionist(s) : Ashish Tripathi, Aushim Luthra Counsel for Opposite Party(s) : G.A. In Chamber HON'BLE SIDDHARTH, J.
1. Heard Sri Abhishit Jaiswal, Advocate, holding brief of Sri Aushim Luthra, learned counsel for the revisionist; learned A.G.A. for the State and perused the trial court record.
2. The present criminal revision has been filed to set and aside the judgement and order dated 30.11.2023 passed by Additional and Sessions Judge/ Special Judge, POCSO Act, Prayagraj, as well as order dated 04.12.2020 passed by the Juvenile Justice Board, Prayagraj, Sessions Trial No.43 of 2021 arising out of Case Crime No. 0463 of 2019 under Sections 147, 148, 149, 323, 302 and 120-B I.P.C, Police Station George Town, District Prayagraj.
3. The Juvenile Justice Board, after determination of the age of the revisionist as 17 years, 6 months and 27 days, directed his preliminary assessment as per Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Before the Board, revisionist was asked seven questions and it was held that the revisionist was capable of understanding the consequences of the act of murder and other offences committed by him and he was sufficiently mature as per the report of D.P.O. He was found implicated in two earlier offences also and hence he was held liable to be tried as a adult by the Juvenile Justice Board by the order dated 04.12.2020. On appeal before the Children's court, revisionist was held accordingly and his appeal was dismissed by the order 30.11.2023 by Children's court. The Children's court has considered the report of psychologist on record but without considering its veracity.
4. Learned counsel for the revisionist has submitted that revisionist was not named in the FIR. He has been falsely implicated in this case by the Investigating Officer during investigation. Preliminary assessment of the revisionist was not conducted as per the requirement of Section 15 (1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 only proviso which mandates that the Board may take the assistance of experienced psychologists or psycho-social workers or other experts for conducting preliminary assessment into heinous offences committed by child by the Board.
5. Despite service of notice on opposite party no.2, no one has turned up to oppose this criminal revision.
6. Learned AGA has opposed the submissions made by learned counsel for the revisionist and submitted that Juvenile Justice Board and Appellate court have rightly made preliminary assessment of the revisionist as per Section 15 of the act.
7. After hearing the rival contentions, this Court finds that the provisions of Section 15(1) of Juvenile Justice (Care and Protection of Children) Act, 2015 are absolutely vague, although preliminary assessment of the child in conflict with law is provided in the aforesaid section with the help of psychologists or psycho-social workers or other experts, but process of determination has not been provided anywhere. Rule 10 A of Juvenile Justice (Care and Protection of Children) Model Rules, 2016 also provides that Board may take the assistance of psychologists or psycho-social workers or other experts who have experience of working with children in difficult circumstances. It further provides that 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. Rule 11 (2) of Juvenile Justice (Care and Protection of Children) Model Rules, 2016, provides that before passing an order of preliminary assessment, the Board shall obtain a social investigation report in Form 6 prepared by the Probation Officer or Child Welfare Officer or social worker as ordered and take the findings of the report into account.
8. This Court finds that there is nothing in the aforesaid provisions as to how preliminary assessment of child should be made by psychologists to help the Board/Court.
9. This Court finds that the Juvenile Justice Board has though taken assistance of psychologist experts for conducting preliminary assessment of the revisionist for the purpose of his trial regarding heinous offence, but it does not seems reliable.
10. In the case of Barun Chandra Thakur Vs. Master Bholu, Criminal Appeal No.950 of 2022 the Apex Court while dealing with Section 15 of the Act for preliminary assessment of child in conflict with law, observed as under:
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, judgment, 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.
70. A child with average intelligence/IQ will have the intellectual knowledge of the consequences of his actions. But whether or not he is able to control himself or his actions will depend on his level of emotional competence. For example, risky driving may result in an accident. But if emotional competence is not high, the urge for thrill seeking may get the better of his intellectual understanding.
71. Children may be geared towards more instant gratification and may not be able to deeply understand the long-term consequences of their actions. They are also more likely to be influenced by emotion rather than reason. Research shows that young people do know risks to themselves. Despite this knowledge, adolescents engage in riskier behaviour than adults (such as drug and alcohol use, unsafe sexual activity, dangerous driving and/or delinquent behaviour). While they do consider risks cognitively (by weighing up the potential risks and rewards of a particular act), their decisions/actions may be more heavily influenced by social (e.g peer influences) and/or emotional (e.g. impulsive) tendencies. In addition, the lack of experience coupled with the child's limited ability to deeply understand the long-term consequences of their actions can lead to impulsive/reckless decision making.
11. In Barun Chandra Thakur (supra), the Hon'ble Apex Court has referred to the factum of Cognitive maturation, observing intense emotion, likely to affect the cognitive maturation, the child with average IQ will have intellectual knowledge of the consequences of his action, but whether or nor, he will be able to control himself or his actions will depend on his level of emotional competence.
12. Emotional Intelligence Quotient otherwise known as EQ., is the ability to understand, use and manage emotions in positive ways to relieve stress, commensurate effectively, empathize with others, overcome challenges and defuse conflict.
13. While Intelligence Quotient (IQ) is a measure of ability to solve problems and think logically, Emotional Intelligence Quotient (EQ), measures your ability to understand and manage emotions.
14. Poor EQ is linked to crime and other unethical behaviours. Unfortunately, there is a direct connection between poor emotional skills and the rising crime rate. Children who have poor emotional skills become social outcasts at a very young age. They might be the class bully because of a hot temper. They may have learned to reacts with fists rather than with reason. The path to crime starts early in life, while there is no doubt that family and environment are strong contributors, the common threat is poor emotional and social skills. Emotional Quotient as the product of wisdom (w) and IQ, the relationship can be expressed mathematically as EQ = W IQ.
15. In Barun Chandra Thakur (supra), while appreciating the world acknowledgment of treating children in conflict with law differently than adult in conflict with law, the Apex Court has dealt with the aspect of child psychology and need to conduct a meticulous psychological evaluation in following paragraphs:
74. The world acknowledges that children in conflict with law should be treated differently than adults in conflict with law. The reason is that the mind of the child has not attained maturity and it is still developing. Therefore, the child should be tested on different parameters and should be given an opportunity of being brought into the main stream if, during his juvenility, has acted in conflict with law. To understand psychology of the child, huge rounds of studies have been made not only recently but from age old times and child psychology is a subject which is being studied world over and there are institutes specifically dealing with the developments and research on the said subject. The enactments dealing with children are enacted world over.
75. It is to be noted that child psychology is a specialised branch of development psychology, its genesis is based on the premise that children and adults have a different thought process. The 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 section 15 of the Act, 2015. The report of the preliminary assessment decides the germane question of transferring the case of a child between 16 to 18 years of age to the Children's Court. This evaluation of mental capacity and ability to understand the consequences of the child in conflict with law can, in no way, be relegated to the status of a 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.
16. The Apex Court thus, expressed the need of formulating the guidelines, to assist the J.J. Board making preliminary assessment under section 15 of the J.J. Act, by the authorities concerned, in following lines:\
87. Before concluding, we may indicate that 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. Without much elaboration, we leave it 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.
17. It would be required to be noted that expression preliminary assessment into heinous offences by the Board used in section 15 of the J.J. Act, 2015, imposes upon the Board duty to pass an order, to consider, whether there is a need for a trial of the said child as an adult. Under section 18(3) of the J.J. Act, the Board shall transfer the trial of the case to the Children's Court having jurisdiction to try such offences. As has been observed in paragraph no. 75 of the Barun Chandra Thakur (supra), the assessment of adolescent mental capacity and ability to understand the consequences of the offence of the child in conflict with law is one of the most crucial determinants of the preliminary assessment mandated by section 15 of the J.J. Act. 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.
18. The conclusion arrived at in Barun Chandra Thakur (supra) in context with sections 15 and 19 read with section 18(3) of the J.J. Act, is as under:
81. We are conscious of the fact that the power to make the preliminary assessment is vested in the Board and also the Children's Court under sections 15 and 19 respectively. 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.
19. In Barun Chandra Thakur (supra) case, the Apex Court has specifically emphasised on the expression may in proviso to section 15(1) of the J.J. Act and has laid down that the expression may would operate in mandatory form and the Board would be obliged to take assistance of experienced psychologist or psycho social worker or other expert. In the said case, it has been also further clarified that in case, where the Board consists of one member, who is a practicing professional with a degree in child psychologist or child psychiatric chooses not to take such assistance, it would record specific reasons thereof. In Barun Chandra Thakur (supra) case, paragraph nos. 76 and 79 clarify the said aspect, which read as under:
76. As already noticed, the Board consists of three members, one is a Judicial Officer First Class and two social workers, one being a woman. The social worker appointed as a member could be having a degree in child psychology or psychiatry but it is not necessary. As such, the constitution of the Board may not necessarily be having an expert child psychologist. It is for all the above reasons that it has been provided not only in sections 15 and 101(2) but also under the Model Rules that assistance may be taken from an expert psychologist. Having regard to the framework of the Act, 2015 and the Model Rules and the purpose of preliminary assessment in terms of Section 15 as also looking to the varied composition of the Board, we are of the view that where the Board is not comprising of a practicing professional with a degree in child psychology or child psychiatry, the expression may in the proviso to section 15(1) would operate in mandatory form and the Board would be obliged to take assistance of experienced psychologists or psycho-social workers or other experts. However, in case the Board comprises of at least one such member, who has been a practicing professional with a degree in child psychology or child psychiatry, the Board may take such assistance as may be considered proper by it; and in case the Board chooses not to take such assistance, it would be required of the Board to state specific reasons therefor.
79. Therefore, looking to the purpose of the Act, 2015 and its legislative intent, particularly to ensure the protection of best interest of the child, the expression may in the proviso to Section 15(1) thereof and the requirement of taking assistance of experienced 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.
20. The Apex Court also in the case of Barun Chandra Thakur (Supra) had expressed anxiety as to the kind of analysis or assessment required under Section 15 of the Act or the Model Rules, 2016. There is no guidelines or framework to facilitate the Board in making proper assessment when it has found the task of preliminary assessment under section 15 of the J.J. Act is a delicate task. Type of tests required by assessment of child in conflict in law by the psychologist have not been defined anywhere in the Act. The guidelines of National Commission for Protection of Child Rights (NCPCR) in April-2023 are also of no help in this regard.
21. This Court has come across number of orders of preliminary assessment wherein psychologist report does not states anything as to the nature of test conducted for the purpose of preliminary assessment of the child.
22. The Guidelines of NCPCR in regard to role of J.J. Board and other experts are described in the following points:
3.1 The Juvenile Justice Board (JJB) is solely responsible for conducting preliminary assessment as per section 14 (5)(f)(ii) and Section 15(1) of the Act.
3.2 In case the Board does not have at least one member who is a practicing professional with a degree in child psychology or child psychiatry, the Board shall take assistance of psychologists or psycho-social workers or other experts who have experience of working with children in difficult circumstances. In such cases the Board would record specific reason(s) for the same.
3.3 In cases where the Board needs to consult experts for preliminary assessment, the Board may take assistance from experts associated with any District Mental Health Programme or an expert from a Mental Health Institution in the District or outside the District. District Magistrate (DM) will provide the list of such experts and Institutions.
3.4 Qualification of experts-The psychologists and other experts who are asked to assist JJB in conducting the Preliminary assessment, shall be possessing qualification as required to be a Member of the JJB under the JJ Act, 2015, that is as follows-
a practicing professional with a degree in child psychology or psychiatry.
No expert shall be included in the process of conducting the preliminary assessment, if he has any past record of violation of human rights or child rights;
has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or has not been granted full pardon in respect of such offence;
has been removed or dismissed from service of the Central Government or a State Government or an undertaking or corporation owned or controlled by the Central Government or a State Government;
has ever indulged in child abuse or employment of child labour or any other violation of human rights or immoral act.
23. In case of non-availability of the expert in the District, services of In-patient Departments, are directed to be made available from other districts. The said aspect has been expressed in guideline 3.5, which reads as under:
3.5 Non-availability of experts in the District- In case trained psychologists and experts are not available within a given District, services of In-Patient Departments may be availed from other Districts. The State Child Protection Society (SCPS) with help of the Health Department shall issue a list of Institutes.
24. The guidelines also emphasize on imparting regular training to the experts, who have the required qualification to assist the J.J. Board in conducting the preliminary assessment. Such training are made to be provided by National Institute of Public Co-operation of Child Development or the respective Child Protection Society.
25. Other information, to be considered out while carrying out preliminary assessment, has been dealt with in point-4.4 of the guidelines of the NCPCR. The marginal note with point-4.4 in guideline very specifically lays down that any confessional statement from SIR must not be taken into consideration while conducting preliminary assessment. Point-4.4 is reproduced hereunder:
4.4 Other information to be considered while carrying out preliminary assessment- During the preliminary assessment, the Board and experts shall also analyze and take into consideration the following-
Social Investigation Report (SIR)- The Board directs the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, to undertake a social investigation into the case and submit a social investigation report, within a period of fifteen days from the date of first production before the Board [section 8(3)(e)] Social Background Report-Child Welfare Police Officer of the police station, or the special juvenile police unit to which such child is brought, shall, as soon as possible after apprehending the child, inform the probation officer, or if no probation officer is available, a Child Welfare Officer, for preparation and submission within two weeks to the Board, a social investigation report containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry [Section 13(1)(ii)] Individual Care Plan (ICP)- The Board should also consider the Individual Care Plan (ICP) for the child in conflict with law concerned, prepared by a Probation Officer or Child Welfare Officer or a recognised voluntary organisation on the basis of interaction with the child and his family, where possible. Thereafter, at the time of final orders an amended/updated ICP may be submitted to the Board/Children's Court.
Witness report by CWPO-In cases of heinous offences alleged to have been committed by a child, who has completed the age of sixteen years, the Child Welfare Police Officer shall produce the statement of witnesses recorded by him and other documents prepared during the course of investigation within a period of one month from the date of first production of the child before the Board, a copy of which shall also be given to the child or parent or guardian of the child [Rule 10(5)].
Interaction with parents/guardians; staff of school or other institution attended by the child; peer group; neighbours or any other person deemed appropriate for giving insights regarding the child within the scope of four determinants as given at point 7 of the guidelines.
26. This Court finds that Social Investigation Report and Social Background Report-Child Welfare Police Officer is seldom mentioned in the preliminary assessment order passed by the Board or Children's Court.
27. The explanation to section 15 of the J.J. Act clarifies that the preliminary assessment is not a trial. This is an exercise to assess the child's capacity to commit and understand the consequences of the alleged crime. The Board, thus, has to be very careful while making a preliminary assessment, and should not mechanically rely on SIR or SBR without analysing the juvenile case. Seriousness of the offence is not the sole factor, which could control the decision.
28. Coming to the facts of this case, this Court finds that Dr. Rakesh Kumar Paswn, Psychologist has given his report dated 25.9.2020 regarding psychological assessment of child in conflict with law, which is as follows:-
"Mr. Ayush Shukla evaluated twice on 22.9.2020 and 25.9.2020, detailed history noted, mental status examination done. History is consistent, coherent and corroborated from case.
He seems to be immature kind did not know consequences of his act."
29. The Juvenile Justice Board while passing the order dated 4.12.2020 has not consider the same. However, the appellate court has considered the same and has recorded the finding that revisionist was was not able to understand the consequences of the act committed by him and was immature.
30. This Court is of the view that the report of the psychologist of the nature mentioned hereinabove does not fulfils the requirements of Section 15 of J.J. Act. It appears that only to make formal compliance of getting report from psychologist, the report was called. The report does not records any finding as to the revisionist was subjected to what kind of test; what was his Emotional Intelligence Quotient (EQ) or his Intelligence Quotient (I.Q.). The Board has although recorded the finding that the revisionist has criminal antecedents of implication in two cases, but that cannot be the sole ground for declaring him adult for the purpose of trial regarding the heinous offence wherein he has been implicated.
31. This Court has come across cases where the Juvenile Justice Board and the Children's Court have not found any psychologist within their jurisdiction fromwhere they can get report of psychologist. Hence they decided the issue of preliminary assessment on mere questioning of the child.
32. This Court finds that guidelines of 3.5 of NCPCR considered hereinabove in paragraph no.25 has addressed the issue providing that in case trained psychologists and experts are not available within a given District, services of In-Patient Departments may be availed from other Districts. The State Child Protection Society (SCPS) with help of the Health Department shall issue a list of Institutes.
33. In Barun Chandra Thakur (supra) the Apex Court has held that appropriate and specific guidelines with regard to preliminary assessment under Section 15 of J.J. Act, 2015 are not there and had left it 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, but as yet nothing has been done.
34. As discussed above, the issue of preliminary assessments of juvenile under Section 15 of J.J. Act is a delicate and difficult task, which requires expertise. As of now, it is being done in arbitrary manner in absence of any definite parameters/ guidelines for the same. Therefore this Court deems it appropriate to formulate some guidelines for the Juvenile Justice Board and Children's Court to guide them in making preliminary assessment of juveniles for the purpose of the trial regarding commission of heinous offence as per Section 15 of J.J. Act, 2015, till the legislature formulates appropriate guidelines, as follows:-
GUIDELINES COMPLIANCE
(i) The Board will necessarily call the report of psychologist regarding the test of intelligence of child conducted regarding his ability to understand the consequences of his act [like Binet Kamat Test of Intelligence (B.K.T.); Vineland Social Maturity Scale (VSMS); Bhatiya Battery Test of Intelligence or any other test]. The psychologist will indicate in his report clearly what test was performed for assessing mental ability and intelligence of the child so as to ascertain whether he is required to be tried as an adult, who has committed heinous offence. The E.Q. and I.Q. of such a child shall also be clearly indicated in the report of psychologist;
(ii) Clear finding shall be recorded regarding the child's physical and mental capability to commit heinous crime alleged and his ability to understand its consequences;
(iii) The Board shall direct the Probation Officer, or in case a Probation Officer is not available, the Child Welfare Officer or a social worker, to undertake social investigation into the case and submit a social investigation report, within a period of fifteen days from the date of first production of child before the Board [section 8(3)(e)];
(iv) Child Welfare Police Officer of the police station, or the special juvenile police unit to which such child is brought, shall, as soon as possible after apprehending the child, inform the probation officer, or if no probation officer is available, a Child Welfare Officer, for preparation and submission within two weeks to the Board, a social investigation report containing information regarding the antecedents and family background of the child and other material circumstances wherein the child committed the alleged offence likely to be of assistance to the Board for making the inquiry [Section 13(1)(ii)];
(v) In cases of heinous offences alleged to have been committed by a child, who has completed the age of sixteen years, the Child Welfare Police Officer shall produce the statement of witnesses recorded by him and other documents prepared during the course of investigation within a period of one month from the date of first production of the child before the Board, a copy of which shall also be given to the child or parent or guardian of the child [Rule 10(5);
(vi) The number and nature of the previous implications of the child with details of names of complaint/complaints;
(vii) The number and nature of prior period of probation of child, prior commitments of child to child correctional centers and previous residential and community - based treatments;
(viii) Whether the alleged offense is part of a repetitive pattern of similar adjudicated offenses committed by child and whether implications have been made by same complainant;
(ix) Whether the child has previously absconded from the legal custody of a juvenile correctional center;
(x) The degree of intellectual disability or mental illness of child, if any;
(xi) The child's school record and education;
35. These guidelines shall be followed by all the Juvenile Justice Boards/Children's courts while making preliminary assessment of a child under Section 15(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 and it should be reflected in their orders.
36. For the reasons given hereinabove, the impugned orders passed by the J.J. Board and the Children's Court are not in accordance with law, hence, the preliminary assessment of the present child in conflict with law requires assessment afresh by J.J. Board, as contemplated under section 15(1) of the J.J. Act, 2015. The assessment of child (revisionist) shall be done on all the parameters/ guidelines stated hereinabove. Since the Apex Court in the case of Child in Conflict with Law through his Mother Vs. State of Karnatka, 2024 SCC OnLine SC 798 has held that period of three months provided under Section 14 (3) of the Act for the purpose of conducting psychological test of the child is not mandatory.
37. The order dated 30.11.2023 passed by Additional and Sessions Judge/ Special Judge, POCSO Act, Prayagraj, as well as order dated 04.12.2020 passed by the Juvenile Justice Board, Prayagraj, in Sessions Trial No.43 of 2021 are quashed and set aside.
38. In the result, the criminal revision is allowed.
39. Let a copy of this order be communicated to all the J.J. Boards/Children's courts in the State for necessary compliance by Registrar (Compliance), within two weeks.
(Siddharth,J.) October 10, 2025 Ruchi Agrahari