Chattisgarh High Court
Advit Agrawal vs State Of Chhattisgarh on 4 November, 2024
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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2024:CGHC:42714
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 66 of 2024
Order Reserved on : 13.08.2024
Order Delivered on : 04.11.2024
• Advit Agrawal S/o Sushil Agrawal Aged About 20 Years R/o Friends
Colony, Raigarh, District : Raigarh, Chhattisgarh
... Petitioner
versus
1. State Of Chhattisgarh Through Station House Officer, Police Station
Chakradhar Nagar, Raigarh, District : Raigarh, Chhattisgarh
2. Juvenile In Conflict With Law - Minor (A) (However, It Is Pertinent To
Mentioned That Minor (A) Is Presently Aged Around 19 Years.
3. Juvenile In Conflict With Law - Minor (B) (However, It Is Pertinent To
Mentioned That Minor (B) Is Presently Aged Around 18 Years And 6
Months.
... Respondents
For Petitioner : Mr. Hari Agrawal, Advocate
For State : Ms. Subha Shrivastava, Panel Lawyer
For Respondent No. 2 & 3 : Mr. Amit Sharma, Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
(CAV Order)
1. The applicant has filed the present criminal revision under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short "Act of 2015") challenging the order dated 23.08.2023 (Annexure P/1) passed by the learned Children 2 / 21 Court/Additional Sessions Judge, Fast Track Special Court (POCSO Act), Raigarh (C.G.) in Criminal Appeal No. 74/2023 by which the learned Additional Sessions Judge has set aside the order dated 11.07.2023 (Annexure P/2) passed by the Juvenile Justice Board (in short JJB), Raigarh (C.G.) in Juvenile Case No. 144/2021 arising out of Crime No. 454/2021 registered before Police Station - Chakrdhar Nagar, Raigarh (C.G.) and directed the JJB to proceed further in the matter of respondent No. 2 child in conflict with law and also directed to appear before the JJB on 15.09.2023.
2. Brief facts of the case are that the complainant/victim has lodged FIR bearing Crime No. 454/2021 registered before the Police Station- Chakradhar Nagar, Raigarh for offence punishable under Sections 341, 354-Α, 397, 506/34 of IPC and 25/27 of Arms Act. It is the case of the prosecution that the complainant has lodged a written complaint alleging that on 07.08.2021 at about 05:40 in the evening when he was returning from office of his father in Activa and he has taken his friend to temple and while returning at about 07:15 PM four persons have appeared before him and stopped the vehicle started threatening to kill, they are having knife, axe and rod, looted watch, chain, rings, purse, mobile phone of his friend, Rs. 1 Lakh and also used obscene words with intention to outrage the modesty of his friend which has necessitated him to lodge a report and after investigation the memorandum of respondent No. 2 was taken and police arrested the applicant and he was sent to judicial remand. On 06.08.2021 the TI Parade was conducted and after investigation charge-sheet was produced before the JJB.
3 / 213. The JJB as per Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 has prepared the preliminary assessment as he was involved in the henius offence. The JJB vide order dated 11.07.2023 has recorded its finding that considering the circumstances it is quite vivid that the respondent No. 2 is liable to be tried as adult and accordingly it has transferred the criminal case to the Children's Court having jurisdiction to try such offence as per the Section 18(3) of the Act of 2015.
4. Being aggrieved with this order the father of the respondent No. 2 preferred an appeal under Section 101(2) of Act of 2015 (Annexure P/8) mainly contending that the learned JJB while passing the order on preliminary assessment has not taken into consideration that the age of the accused is below 18 years and charge-sheet was submitted before the JJB, as such there was no reason for transferring the case to the Children's Court. It has also been contended that while deciding the point No. 3 to 5, the learned JJB has taken into consideration the psychological report, but the said report has not been given by any psychological expert. It has also been contended that if report is minutely examined, it would be clear that no specific finding regarding capability to understand the circumstances and consequence of the offence has been given thus there is no justification for the JJB to transfer the case to Children's Court under Section 18(3) of the Act of 2015 and would pray for allowing the appeal.
5. Being aggrieved with this order the applicant has preferred present criminal revision under Section 102 of Act of 2015 mainly 4 / 21 contending that the finding recorded by the learned Children Court regarding the proper medical/psychological examination of the juvenile is perverse as the juveniles were interacted/examined by a team of five medical professionals and they have reached to a conclusion that the juveniles had the mental and physical capacity to commit the alleged offence and they had the ability to understand the consequence of the offence. It has also been contended that even it is assumed that the Juvenile Justice Board has not taken the proper assistance of psychologist is true & correct, then in such a situation the learned Children's Court should have exercised its jurisdiction under Section 101 (2) of the Juvenile Justice Act and would have taken the assistance of experience psychologist before arriving/deciding the appeal. It has also been submitted that the findings of learned Children Court the regarding improper constitution of panel of experts then the Court should have remanded the matter to reconstitute the Board to re-examine the case of child in conflict with law afresh taking assistance of legally constituted panel of experts. It has also been submitted that the finding arrived at by the learned Lower Appellate Court that there is no need of trial of the juvenile as an adult is not based on any material available on record, as such, the same is perverse and contrary to the records of the case, as such the same needs interference by this Court in exercise of revisional jurisdiction and would pray for allowing the revision by upholding the order of the JJB dated 11.07.2023. In support of his submission he has referred to the judgment of Hon'ble Supreme Court in case of Child in 5 / 21 conflict with law vs. State of Karnataka & Others reported in 2024 SCC Online 796.
6. The State has filed its return wherein it has been held that the finding recorded by the Children's Court is legal, justified and no illegality has been pointed by the applicant to exercise revisional power by this Court, therefore, criminal revision petition is liable to be dismissed.
7. Learned counsel for respondent No. 2 and 3 would submit that the finding recorded by the Children's Court is legal, justified and does not warrant interference by this Court and would pray for dismissal of the revision.
8. I have heard learned counsel for the parties and perused record.
9. From the submissions made by counsel for the parties, the point emerged for determination by this Court is whether the learned Appellate Court has committed illegality in quashing the entire order on the count that irregularities are reflected in the preliminary assessment order passed by JJB which are so fatal that it cannot be rectified by directing the JJB to pass afresh preliminary assessment order after conducting proceeding in accordance with the provisions of Act of 2015 and the rules made in this regard.
10. To appreciate this point it is necessary for this Court to extract the relevant provisions of Act of 2015 Section 14, 15, 18, 19 and 101 and relevant provisions of Rule 10(A), 11, 13, 19 Juvenile Justice (Care and Protection of Children) Rules, 2016:
"14. Inquiry by Board regarding child in conflict with law.
(1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry in 6 / 21 accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under sections 17 and 18 of this Act.
(2) The inquiry under this section shall be completed within a period of four months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of two more months by the Board, having regard to the circumstances of the case and after recording the reasons in writing for such extension.
(3) A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three month from the date of first production of the child before the Board (4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated Provided that for serious or heinous offences, in case the Board requires further extension of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded in writing (5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:-
(a) at the time of initiating the inquiry, the Board shall satisfy itself that the child in conflict with law has not been subjected to any ill- treatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such ill- treatment.
(b) in all cases under the Act, the proceedings shall be conducted in simple manner as possible and care shall be taken to ensure that the child, against whom the proceedings have been instituted, is given child-friendly atmosphere during the proceedings;
(c) every child brought before the Board shall be given the opportunity of being heard and participate in the inquiry;
(d) cases of petty offences, shall be disposed of by the Board through summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);
(e) inquiry of serious offences shall be disposed of by the Board, by following the procedure, for trial in summons cases under the Code of Criminal Procedure, 1973 (2 of 1974);
(f) inquiry of heinous offences,-
(i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e);7 / 21
(ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed 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):
Provided that the order of the Board to dispose of the matter shall be ¹[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.
18. Orders regarding child found to be in conflict with law.-(1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, 3[or a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under section 15, disposed of the matter], then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,-
(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;
(b) direct the child to participate in group counselling and similar activities;
8 / 21(c) order the child to perform community service under the supervision 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 pay fine: Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;
(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any period not exceeding three years;
(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home:
Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety. (2) If an order is passed under clauses (a) to (g) of sub- section (1), the Board may, in addition pass orders to-
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences.
19. Powers of Children's Court.-
(1) After the receipt of preliminary assessment from the Board under section 15, the Children's Court may decide that-
(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) and pass appropriate orders after trial subject to the 9 / 21 provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;
(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18. (2) The Children's Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.
(3) The Children's Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behavior modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.
(4) The Children's Court shall ensure that there is periodic follow up report a every year by the probation officer or the District Child Protection Unit or a social worker, as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill-treatment to the child in any form.
(5) The reports under sub-section (4) shall be forwarded to the Children's Court for record and follow up, as may be required.
101. Appeals. (1) Subject to the provisions of this Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty days from the date of such order, prefer an appeal to the Children's Court, except for decisions by the Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District Magistrate:
Provided that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time and such appeal shall be decided within a period of thirty days.
(2) An appeal shall lie against an order of the Board passed after making the preliminary assessment into a heinous offence under section 15 of the Act, before the Court of Sessions and 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.10 / 21
[(3) No appeal shall lie from any order of acquittal made by the Board in respect of a child alleged to have committed an offence other than the heinous offence by a child who has completed or is above the age of sixteen years.] (4) No second appeal shall lie from any order of the Court of Session, passed in appeal under this section. (5) Any person aggrieved by an order of the Children's Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) [(6) Any person aggrieved by an adoption order passed by the District Magistrate may, within a period of thirty days from the date of such order passed by the District Magistrate, file an appeal before the Divisional Commissioner. (7) Every appeal filed under sub-section (6), shall be decided as expeditiously as possible and an endeavour shall be made to dispose it within a period of four weeks from the date of filing of the appeal:
Provided that where there is no Divisional Commissioner, the State Government or Union territory Administration, as the case may be, may, by notification, empower an officer equivalent to the rank of the Divisional Commissioner to decide the appeal.] 10A. 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 offences, 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.
11. Completion of Inquiry.-(1) Where after preliminary assessment under section 15 of the Act, in cases of heinous offences allegedly committed by a child, the Board decides to dispose of the matter, the Board may pass any of the dispositional orders as specified in section 18 of the Act. (2) Before passing an order, the Board shall obtain a social investigation report in Form 6 prepared by the Probation 11 / 21 Officer or Child Welfare Officer or social worker as ordered, and take the findings of the report into account. (3) All dispositional orders passed by the Board shall necessarily include an individual care plan in Form 7 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.
(4) Where the Board is satisfied that it is neither in the interest of the child himself nor in the interest of other children to keep a child in the special home, the Board may order the child to be kept in a place of safety and in a manner considered appropriate by it.
(5) Where the Board decides to release the child after advice or admonition or after participation in group counselling or orders him to perform community service, necessary direction may also be issued by the Board to the District Child Protection Unit for arranging such counselling and community service.
(6) Where the Board decides to release the child in conflict with law on probation and place him under the care of the parent or the guardian or fit person, the person in whose custody the child is released may be required to submit a written undertaking in Form 8 for good behaviour and well- being of the child for a maximum period of three years. (7) The Board may order the release of a child in conflict with law on execution of a personal bond without surety in Form
9. (8) In the event of placement of the child in a fit facility or special home, the Board shall consider that the fit facility or special home is located nearest to the place of residence of the child's parent or guardian, except where it is not in the best interest of the child to do so.
(9) The Board, where it releases a child on probation and places him under the care of parent or guardian or fit person or where the child is released on probation and placed under the care of fit facility, it may also order that the child be placed under the supervision of a Probation Officer who shall submit periodic reports in Form 10 and the period of such supervision shall be maximum of three years. (10) Where it appears to the Board that the child has not complied with the probation conditions, it may order the child to be produced before it and may send the child to a special home or place of safety for the remaining period of supervision.
(11) In no case, the period of stay in the special home or the place of safety shall exceed the maximum period provided in clause (g) of sub-section (1) of section 18 of the Act.
12 / 2113. Procedure in relation to Children's Court and Monitoring Authorities.-
(1) Upon receipt of preliminary assessment from the Board the Children's Court may decide whether there is need for trial of the child as an adult or as a child and pass appropriate orders.
(2) Where an appeal has been filed under sub-section (1) of section 101 of the Act against the order of the Board declaring the age of the child, the Children's Court shall first decide the said appeal.
(3) Where an appeal has been filed under sub-section (2) of section 101 of the Act against the finding of the preliminary assessment done by the Board, the Children's Court shall first decide the appeal.
(4) Where the appeal under sub-section (2) of section 101 of the Act is disposed of by the Children's Court on a finding that there is no need for trial of the child as an adult, it shall dispose of the same as per section 19 of the Act and these rules.
(5) Where the appeal under sub-section (2) of section 101 of the Act is disposed of by the Children's Court on a finding that the child should be tried as an adult the Children's Court shall call for the file of the case from the Board and dispose of the matter as per the provisions of the Act and these rules. (6) The Children's Court shall record its reasons while arriving at a conclusion whether the child is to be treated as an adult or as a child.
(7) Where the Children's Court decides that there is no need for trial of the child as an adult, and that it shall decide the matter itself:
(i) It may conduct the inquiry as if it were functioning as a Board and dispose of the matter in accordance with the provisions of the Act and these rules....
19. Procedure for inquiry. (1) The Committee shall inquire into the circumstances under which the child is produced and accordingly declare such child to be a child in need of care and protection.
(2) The Committee shall, prima facie determine the age of the child in order to ascertain its jurisdiction, pending further inquiry as per section 94 of the Act, if need be. (3) When a child is brought before the Committee, the Committee shall assign the case to a social worker or Case Worker or Child Welfare Officer or to any recognised non- governmental organisation for conducting the social investigation under sub-section (2) of section 36 of the Act through an order in Form 21.
(4) The Committee shall direct the person or organisation concerned to develop an individual care plan in Form 7 including a suitable rehabilitation plan. The individual care 13 / 21 plan prepared for every child in the institutional care shall be developed with the ultimate aim of the child being rehabilitated and re-integrated based on the case history, circumstances and individual needs of the child. (5) The inquiry shall satisfy the basic principles of natural justice and shall ensure the informed participation of the child and the parent or guardian. The hild shall be given an opportunity to be heard and his opinion shall be taken into consideration with due regard to his age and level of maturity. The orders of the Committee shall be in writing and contain reasons.
(6) The Committee shall interview the child sensitively and in a child friendly manner and will not use adversarial or accusatory words or words that adversely impact the dignity or self-esteem of the child.
(7) The Committee shall satisfy itself through documents and verification reports, before releasing or restoring the child, as per Form 19, in the best interest of the child. (8) The social investigation conducted by a social worker or Case Worker or Child Welfare Officer of the institution or any non-governmental organisation shall be as per Form 22 and must provide an assessment of the family situation of the child in detail, and explain in writing whether it will be in the best interest of the child to restore him to his family. (9) Before the Committee releases or restores the child, both the child as well as the parents or guardians may be referred to the Counsellor.
(10) The Committee shall maintain proper records of the children produced before it including medical reports, social investigation report, any other report(s) and orders passed by the Committee in regard to the child.
(11) In all cases pending inquiry, the Committee shall notify the next date of appearance of the child not later than fifteen days of the previous date and also seek periodic status report from the social worker or Case Worker or Child Welfare Officer conducting investigation on each such date. (12) In all cases pending inquiry, the Committee shall direct the person or institution with whom the child is placed to take steps for rehabilitation of the child including education, vocational training, etc., from the date of first production of the child itself.
(13) Any decision taken by an individual member, when the Committee is not sitting, shall be ratified by the Committee in its next sitting.
(14) At the time of final disposal of a case, there shall be at least three members present including the Chairperson, and in the absence of Chairperson, a member so nominated by the Chairperson to act as such.
14 / 21(15) The Committee shall function cohesively as a single body and as such shall not form any sub-committees. (16) Where a child has to be sent or repatriated to another district or state or country the Committee shall direct the District Child Protection Unit to take necessary permission as may be required, such as approaching the Foreigners Regional Registration Offices and Ministry of External Affairs for a no-objection certificate, contacting the counterpart Committee, or any other voluntary organisation in the other district or state or country where the child is to be sent. (17) At the time of final disposal of the case, the Committee shall incorporate in the order of disposal, an individual care plan in Form 7 of such child prepared by the social worker or Case Worker or Child Welfare Officer of the institution or any non-governmental organisation, as the case may be. (18) While finally disposing of the case, the Committee shall give a date for follow-up of the child not later than one month from the date of disposal of the case and thereafter once every month for the period of first six months and thereafter every three months for a minimum of one year or till such time as the Committee deems fit.
(19) Where the child belongs to a different district, the Committee shall forward the age declaration, case file and the individual care plan to the Committee of the district concerned which shall likewise follow-up the individual care plan as if it had passed such disposal order.
(20) The individual care plan shall be monitored by means of a rehabilitation card in Form 14 issued for the purpose by the Committee passing the disposal order and which shall form part of the record of the Committee which follow up the implementation of the individual care plan. Such rehabilitation card shall be maintained by the Rehabilitation-cum- Placement Officer.
(21) All orders passed by the Committee in respect of a child in need of care and protection shall also be uploaded on the designated portal with due regard to the confidentiality and privacy of the child.
(22) When a parent or guardian, wishes to surrender a child under sub- section (1) of section 35 of the Act, such parent or guardian shall make an application to the Committee in Form
23. Where such parent or guardian is unable to make an application due to illiteracy or any other reason, the Committee shall facilitate the same through the Legal Aid Counsel provided by the Legal Services Authority, the deed of surrender shall be executed as per Form 24. (23) The inquiry under sub-section 3 of section 35 of the Act shall be concluded by the Committee expeditiously and the Committee shall declare the surrendered child as legally free for adoption after the expiry of sixty days from the date of surrender.
15 / 21(24) In case of orphan or abandoned child, the Committee shall make all efforts for tracing the parents or guardians of the child and on completion of such inquiry, if it is established that the child is either an orphan having no one to take care, or abandoned, the Committee shall declare the child legally free for adoption.
(25) In case an abandoned or orphan child is received by a Child Care Institution including a Specialised Adoption Agency, such a child shall be produced before the Committee within twenty-four hours (excluding the time necessary for the journey) along with a report in Form 17 containing the particulars and photograph of the child as well as the circumstances in which the child was received by it and a copy of such report shall also be submitted by the Child Care Institution or a Specialised Adoption Agency to the local police station within the same period.
(26) The Committee shall issue an order in Form 18 for short term placement and interim care of the child, pending inquiry under section 36 of the Act.
(27) The Committee shall use the designated portal to ascertain whether the abandoned child or orphan child is a missing child while causing the details of the orphan or the abandoned child to be uploaded.
(28) The Committee, after taking into account the risk factors, and in the best interest of the child, may direct the publication of the particulars and photograph of an orphan or abandoned child in national newspapers with wide circulation within seventy two hours from the time of receiving the child for the purposes of tracing out the biological parents or the legal guardian(s).
(29) The Committee, after making inquiry as per the provisions of the Act, shall issue an order in Form 25 declaring the abandoned or orphan child as legally free for adoption and send the same information to the Authority. (30) Where the parents of the child are traced, the procedure for restoration of the child shall be as per rule 82 of these rules."
11. From perusal of the Rule 10(A) of Rules, 2016 it is quite vivid that while conducting a preliminary assessment in case of henious offence the Board may take the assistance of psychological expert or psychological worker or other expert who has experience in working with children and for which a panel of experts should be made available. The Rule 13 provides that the Children's Court 16 / 21 may conduct the inquiry as if it were functioning as a Board and disposed of the matter in accordance with the Acts and Rules. The Rule 19 of Rules, 2016 provides the procedure for conducting the inquiry which shall be done satisfied the basic principle of natural justice and the committee shall interview the child sensitively and in a friendly manner.
12. To ascertain whether the preliminary assessment order has been passed in accordance with the rules and the procedure prescribed under the Act of 2015 this Court has gone through the impugned order of the JJB wherein it is quite vivid that the JJB while deciding the issue No. 3 what was the mental and physical capacity of the child in conflict to commit such offence has not taken care to assess actual the physical capacity to commit the offence, but has not assigned what was the mental capacity to commit the offence has been recorded. The JJB should have taken into consideration the past history of the child in conflict starting from child's birth till current date, problem faced by the child, disorderness and development disability which has compelled him to commit the offence, they are the relevant factors for assessing the mental capacity to commit alleged offence, unfortunately no assessment in this regard has been done.
13. Similarly, while deciding the issue No. 4 what is the mental status of the child in conflict with the law to understand the consequence of the charged offence has only considered the charges leveled against the juvenile and thereafter he has taken note of the report of 4 member panel of psychologist and recorded its finding that the 17 / 21 child in conflict with law was mentally capable of understand the consequence of the offence. The JJB has not care to record a finding on what basis the finding has been recorded and in fact no deliberation has been done whether any query was put to the child regarding consequence of the offence which he has been charged.
The report of the psychologist does not reflect what material they have considered to record such findings regarding the factum of understanding the consequence of the offence by the child in conflict with law according to Rule 10(A) of the Rules of 2016 the experts should give their opinion based upon assessment made in a scientific manner otherwise the reports have no assistance to provide the aims and objection of Juvenile Justice (Care and Protection of Children) Act, 2015. The report must consist of information regarding child's sense of empathy and understanding how his actions would impact his relationships with family, friends and others, legal consequence as being a breaking of rules and serious negative consequence for himself including punishment and coming into conflict with law, this factums are not available in the report.
14. Similarly, the learned JJB while deciding the issue No. 5 what circumstances the child in conflict has committed the offence has not given any finding regarding the circumstances for example what are the surroundings, social contacts and family background which has instigated the child in conflict to commit such offence.
The report is silent on this aspect defeating the object of Act of 2015 as the Act of 2015 aimed with an object of providing proper care, protection, development, treatment, social reintegration by 18 / 21 adopting a child friendly approach in the adjudication and disposal of the matter in the best interest of children and for rehabilitation through process provided. The NIMHANS Bengaluru who is a premier institution involved in the research and study of psychology, and is a world renowned center for mental health neuroscience and elite fields have been prepared guidance note on preliminary assessment report for child in conflict with law and the same guidelines have been considered by the Hon'ble Supreme Court in case of Barun Chandra Thakur vs. Mastar Bholu & Another reported in 2022 SCC Online 870 has held in paragraphs 75, 77 and 79 which reads as under:-
"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.
77. It is a 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 the interests 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. This Court in Bachahan Devi v. Nagar Nigam, Gorakhpur10, held as under:
"18. It is well settled that the use of the word "may" in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word "may" as a matter of pure conventional courtesy and yet intend a mandatory 19 / 21 force. In order, therefore, to interpret the legal import of the word "may", the court has to consider various factors, namely, the object and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well settled that where the word "may" involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word "may" should be interpreted to convey a mandatory force. As a general rule, the word "may" is permissive and operative to confer discretion and especially so, where it is used in juxtaposition to the word "shall", which ordinarily is imperative as it imposes a duty. Cases, however, are not wanting where the words "may", "shall" and "must" are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances."
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 psychosocial 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 therefore."
15. Thus, the finding recorded by the learned Children Court by quashing the finding regarding the understanding the consequence of the offence committed by the child in conflict with law, questioning the correctness of the psychological report, assessment of mental capacity and sending the matter to the learned Children's Court for adjudication as per Section 18(3) of the Act of 2015 by the JJB does not suffer from irregularity or 20 / 21 illegality which warrants interference, but the Children's Court has committed illegality in not remanding the matter with specific direction to JJB to pass afresh preliminary assessment order after following the due process as per the requirement of the rules and guidelines framed by the NIMHANS suffers from perversity, illegality which warrants interference by this Court, thus, the order passed by the Children's Court to the extend that it has directed the JJB to proceed against the child in conflict with law as per the provisions of Act of 2015 without passing fresh assessment order is quashed and the matter is remitted back to JJB for further examination of the child and to carryout the exercise for passing preliminary assessment order afresh strictly in accordance with rules and law laid down by the Hon'ble Supreme Court in case of Barun (Supra).
16. So far as judgment referred to by the applicant in case of Child in Conflict with Law vs. State of Karnataka reported in 2024 SCC Online 798 also laid down the law that the appellate authority is entitled to examine the issue by getting the assistance of experience psychologist and medical specialist other than those whose assistance has been obtained by the Court, hence independent examination is envisaged and the said process has not been followed is not in dispute, but since this Court has already remitted the matter to the learned JJB for reconsideration of the matter strictly in accordance with law laid down by the Hon'ble Supreme Court in case of Barun (supra) no direction is required to be issued to the learned Children's Court to carryout the exercise as prayed by the applicant in the revision. Consequently 21 / 21 the preliminary assessment order dated 11.07.2023 passed by the JJB and order of Children's Court in Criminal Appeal No. 74/2023 passed on 23.08.2023 are set aside and the matter is remitted back to the JJB for passing afresh order regarding preliminary assessment in accordance with the law laid down by the Hon'ble Supreme Court within 8 weeks from the date of receipt of copy of the order.
17. With aforesaid observation and direction, present criminal revision is disposed of.
Sd/-
(Narendra Kumar Vyas) Judge Manish