Punjab-Haryana High Court
Bholu vs Central Bureau Of Investigation on 11 October, 2018
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Rev. No.2366 of 2018 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Rev. No.2366 of 2018
Date of Decision: 11.10.2018
Bholu ....Petitioner
Versus
Central Bureau of Investigation ....Respondent
BEFORE :- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Rupinder Khosla, Sr. Advocate
with Mr. Sarvesh Malik, Advocate
for the petitioner.
Mr. Sumeet Goel, Advocate
for respondent-CBI.
Mr. Sushil K. Tekriwal, Advocate
with Mr. Anupam Singla, Advocate
for the complainant.
*****
DAYA CHAUDHARY, J.
The present revision petiton has been filed by petitioner-Bholu (imaginary name of the child given by the Court) to challenge the impugned order dated 21.05.2018 passed by the learned Additional Sessions Judge, Gurugram, upholding order dated 20.12.2017 passed by the Juvenile Justice Board, Gurugram (here-in-after called as `the Board'), whereby, the preliminary assessment as required under the provisions of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (here-in-after called as `the Act, 2015') has been made.
1 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 2 Briefly, the facts of the case, as made out in the present petition, are that a child aged about seven years, who was a student of 2nd Class, was found lying in an injured condition in the washroom of the school. He was immediately shifted to the hospital, where, he was declared dead. Initially, the investigation of the case was conducted by the local police but thereafter, the investigation of the case was handed over to the Central Bureau of Investigation. During investigation, it was found that the student of the same school i.e the petitioner was found to be involved in the commission of offence, who was more than 16 years of age but less than 18 years. The imaginary name was given to the juvenile, who was in conflict with law as Bholu. By considering his age as well as physical and mental fitness, he was to be assessed by the Board as to whether he could be tried as an adult by the trial Court or not. A preliminary assessment was done by the Board as per provisions of Section 15 of the Act, 2015 vide order dated 20.12.2017 by holding that he was to be tried as an adult in view of provisions of Section 18(3) of the Act, 2015. Said order of assessment made by the Board was challenged by way of filing appeal before the Additional Sessions Judge, Gurugram which was dismissed vide order dated 21.05.2018 by upholding the order passed by the Board stating that there was no illegality and perversity in the order.
Learned senior counsel for the petitioner submits that the inquiry conducted by the Board before passing the impugned order as required under sub Section 3 of Section 18 of the Act was not as per spirit of Section 15(1) of the Act. Only the general questions were put to the petitioner and no question regarding the offence committed and consequences thereof were put to him. Learned counsel also submits that the 2 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 3 petitioner was apprehended on 07.11.2017. He and his father were called for normal conversation to the Office of Central Bureau of Investigation but he was intimidated, coerced, manhandled and also got separated from his father during questioning by putting undue influence. The statutory provisions contained under Section 15 of the Act for conducting preliminary assessment to assess the mental and physical capacity of the juvenile, in conflict with law, to commit a heinous offence and ability to understand the consequences of said offence and also the circumstances, under which, he allegedly committed the offence, were not followed. Neither the documents relied upon by the Board were supplied to the juvenile nor his parents and even the application submitted by him was dismissed. It is also the argument of learned counsel for the petitioner that while making the preliminary assessment, the child/juvenile is presumed to be innocent unless it is otherwise proved as provided under Rule 10-A(3) of the Juvenile Justice (Care and Protection of children) Model Rules, 2016 (here-in-after referred to as `the Rules, 2016'). The purpose of preliminary assessment of the juvenile is to find out the physical and mental capacity of the juvenile, ability to understand and consequences of the offence committed by the juvenile and also the circumstances, under which, he had committed the alleged offence. As per Section 15 of the Act, 2015, the Board can have the assistance of any psychologist or any other expert. Dr. Joginder Kairo, Clinical Psychologist, P.G.I.M.S. Rohtak, who conducted two tests upon the juvenile, suggested that for further assessment, the juvenile may be sent to the Institute of Mental Health, University of Health Sciences, Rohtak but no such assistance has been taken in spite of giving suggestions by the aforesaid doctor. Learned counsel further submits that the Board has 3 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 4 completely ignored not only the provisions of the Act but Rules as well. The report is based on inappropriate tests, namely, Coloured Progressive Matrices (CPM) and Malin's Intelligence Scale for Indian Children (MISIC) meant for children between the age group of 5-11½ and 5-15, which were taken as the basis for the determination of the mental capacity of a child of 16½ years. Learned counsel also submits that this fact was brought to the notice of the Board as well as the Appellate Authority but still it was not considered. A specific request was made to cross-examine the psychologist but such request made by the petitioner was also rejected. The copies of the reports were not supplied to the petitioner to cross examine the psychologist and the request was rejected. It is also the argument of learned counsel for the petitioner that every child is presumed to be innocent up to the age of 18 years and he/she has a right to be heard and required to participate in all the proceedings and decisions affecting his interest by giving due regard to his/her age and maturity. The juvenile has a right of privacy and confidentiality which is mandatory to be maintained but the right of confidentiality and privacy has been mis-interpreted by the Board as well as by the lower Appellate Court. Learned counsel also submits that the CBI itself has admitted in the proceedings before the Board as well as before the Appellate Authority that no such trained officers were available for investigation so as to reach to the logical conclusion in view of special provisions of the Act. The three parameters for making preliminary assessment i.e the mental and physical capacity, ability to understand the consequences of the offence and the circumstances under which the alleged offence has been committed are necessary to be followed but said parameters have not been considered/followed as no such finding has been 4 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 5 given by the Board so as to reach to the conclusion that the juvenile was well aware about the consequences of the offence committed by him and his mental and physical capacity was such that he was well aware about the nature of offence and the consequences thereof. The test conducted to determine the IQ of the juvenile was for the children up to the age of 15 years and none of the tests conducted were designed for the children above 15 years of age. Even in those tests conducted by the Board, the IQ of the petitioner was below normal i.e 95, which shows that as per said test, the mental age of the petitioner was not even of 15 years. At the end, learned counsel for the petitioner submits that even the principles of natural justice were not followed by both the Courts below as no opportunity was given to the petitioner or his parents to rebut the reports in question. A very short period was given to them to go through the reports but copies thereof even were not supplied to them.
Mr. Sumeet Goel, learned counsel for the respondent-CBI has raised a preliminary objection that the scope of this Court is very limited in the revision petition and the orders passed by the Board as well as the Appellate Court are well reasoned. It cannot be said that the provisions have not been followed, whereas, all provisions have been considered while assessing mental and physical capacity of the petitioner. Copies of all documents were supplied to the petitioner as well as his parents and hence, it cannot be said that no documents were supplied to them. By considering the provisions of the Act, the confidentiality and privacy was required to be maintained at all levels. The documents and reports of the expert were shown to the petitioner and his parents. On the basis of questions put to the petitioner and tests conducted upon him, the Board has reached to the 5 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 6 conclusion that the petitioner was having an ability to understand the consequences of the offence and his mental and physical health was assessed with regard to capacity to commit offence. Not only a detailed discussion was made by giving a suggestion but the findings were recorded by the Appellate Court as well which is clear from the judgment itself.
Learned counsel for the respondent-CBI has relied upon the judgments of Hon'ble the Apex Court in case Ms. Eera through Dr. Manjula Krippendorf vs State (Govt. of NCT of Delhi) and another 2017 (3) RCR (Criminal) 734, M/s Natinal Insurance Co. Ltd. vs Baljit Kaur and others 2004(2) SCC 1 and Amit Kapoor vs Ramesh Chander and another 2012(4) RCR (Criminal) 377 in support of his arguments.
Learned counsel for the complainant has also re-iterated the arguments raised by learned counsel for the CBI. He also submits that the report prepared by the Committee was as per provisions of the Act and Rules and members of the Committee itself were experts in the field concerned and there was no violation of any Rule as well as provisions. The investigation was monitored by the Court and status/progress report of the investigation was submitted from time to time. All the documents collected during investigation are the part of final report and it cannot, therefore, be said that copies thereof have not been supplied to the petitioner or his parents. At the end, learned counsel for the complainant submits that the preliminary assessment is only the first step, which is to be carried out within the time frame.
Heard the arguments of learned counsel for the parties and have also perused the impugned orders as well as other documents available on the file.
6 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 7 The Act of 2015 was enacted for the first time by making special provisions for dealing with class of children/juveniles, who are between the age of 16 and 18 years and have allegedly committed heinous crimes. Separate Provisions i.e Sections 14(3), 14(5)(f), 15 and 18(3) have been enacted in the said legislation so as to make a special provision regarding the said alleged delinquents. The legislature in its wisdom has set out three parameters as provided under Section 15 of the Act, which are required to be strictly followed and determined so as to arrive at a conclusion as to whether the child is to be tried as an adult or not. That exercise is called as `PRELIMINARY ASSESSMENT'. Said parameters are as under :-
(i)mental and physical capacity to commit such offence;
(ii)ability to understand the consequences of the offence;
(iii)the circumstances in which he allegedly committed the offence.
Parameters (i) and (ii) are inter-related as the ability to understand the consequences of the offence would only be there in case the child has the mental capacity to do so. For assessing the mental capacity, the Board has been given the liberty to take the assistance of experienced psychologists or psycho-social workers or other experts. However, it has been explained that the preliminary assessment is not a trial. Sections 14(3), 14(5)(f) as well as Section 15 and 18(3) are reproduced as under :-
"Section 14. Inquiry by Board regarding child in conflict with law.
xxx xxx xxx
3. A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three months from the date of first production of
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xxx xxx xxx
5. The Board shall take the following steps to ensure fair and speedy inquiry, namely :-
xxx xxx xxx 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);
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.
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 consequence 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 Psychologist or psycho-social workers or other experts.
Explanation - For the purpose 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 consequence 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) 8 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 9 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 the section shall be completed within the period of specified in Section 14."
"Section 18(3):-
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."
Section 110(1) of the Act, 2015 gives the powers to the Central Government to frame Model Rules till the same are made by the State Government, which in any case, have to confirm to the Model Rules framed by the Central Government. Section 110(1) is reproduced hereunder for the facility of ready reference:-
"110. Power to make rules.-(1) The State Government shall, by notification in the Official Gazette, make rules to carry out the purposes of this Act:
Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government is required to make rules and where any such model rules have been framed in respect of any such matter, they shall apply to the State mutatis mutandis until the rules in respect of that matter are made by the State Government and while making any such rules, they conform to such model rules."
Invoking the powers available to the Central Government to frame the Model Rules, the same have been made in the year 2016, called the Juvenile Justice (Care and Protection of Children) Model Rules, 2016. To enforce the provisions of Chapter IV of the Act, prescribing procedure in relation to children in conflict with law, Rule 8 to Rule 14 have been 9 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 10 formulated in the Model Rules of 2016. Rule 10 prescribes the post- production process by the Board. However, for the decision of the present lis, the following Rules, which have been reproduced hereunder are most relevant:-
"10. Post-Production Process by the Board:-
xxx xxx xxx (5) In cases 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.
xxx xxx xxx (7) When witnesses are produced for examination in an inquiry relating to a child alleged to be in conflict with law, the Board shall ensure that the inquiry is not conducted in the spirit of strict adversarial proceedings and it shall use the power conferred by section 165 of the Indian Evidence Act, 1872 (1 of 1872) so as to interrogate the child and proceed with the presumptions in favour of the child.
xxx xxx xxx (9) The Board shall take into account the report containing circumstances of apprehending the child and the offence alleged to have been committed by him and the social investigation report in Form 6 prepared by the Probation Officer or the voluntary or non-governmental organisation, along with the evidence produced by the parties for arriving at a conclusion."
10 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 11 Rule 10-A of the Act, 2015 provides for the preliminary assessment into heinous offences by the Board, which is also reproduced hereunder:-
"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 psycho-social 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."
For implementing the various provisions of the Act, Chapter II provides for general principles of care and protection of children and Section 3 therein provides for general principles to be followed in the administration of the Act. The relevant principles are reproduced hereunder:-
CHAPTER II GENERAL PRINCIPLES OF CARE AND PROTECTION OF CHILDREN
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3. General Principles to be followed in admission of Act.
(i) Principle of presumption of innocence: Any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of eighteen years.
xxx xxx xxx
(iii) Principle of participation: Every child shall have a right to be heard and to participate in all processes and decisions affecting his interest and the child's views shall be taken into consideration with due regard to the age and maturity of the child.
(iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.
xxx xxx xxx
(xi) Principle of right to privacy and confidentiality: Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process.
xxx xxx xxx
(xvi) Principles of natural justice: Basic procedural
standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act."
A perusal of the principles extracted above would make it clear that the child has to be presumed to be innocent and bereft of any criminal intent upto the age of 18 years and would have the right to be heard and participate in all procedures and decisions effecting his best interest with due regard to his age and maturity. Again, principle (xi) stipulates that his privacy and confidentiality has to be maintained at all costs, meaning thereby that no third party would have any right to invade the same.
12 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 13 Principle (xvi) provides that basic procedural standards of fairness shall be adhered to, including the right to a fair hearing.
Section 8(3) which prescribes the functions and responsibilities of the Board stipulates in sub-Section (a) is reiterated as under :-
(a) ensuring the informed participation of the child and parent or guardian, in every step of the process.
In the present case, the petitioner, being more than 16 years of age as on the date of commission of alleged offence, the matter had to be considered in view of provisions of Section 15 of Act for the purpose of making preliminary assessment, as to whether the child in conflict with law had to be tried as an adult or not. The three parameters as provided under Section 15 of the Act are required to be followed strictly. The Act of 2015 has been enacted by the Parliament under the powers available under Article 253 of the Constitution of India, the age for trying the child/juvenile as an adult has been reduced from 18 to 16 years.
The case, in hand, falls within the category of heinous offence and the petitioner, being more than 16 years of age on the date of commission of offence, is required to be dealt with as per provisions of Section 15 of the Act for the purpose of making preliminary assessment. As per arguments of learned counsel for the petitioner, the Board has not conducted the preliminary assessment as per provisions of the Act and Rules framed thereunder. A conjoint reading of both Rules 10, 10A inconsonance with Section 14, 15 and 18(3) would reveal that the path to be tread upon by the Board, post the production of the Juvenile has been clearly spelt-out where heinous offence has been alleged to be committed by a child, who has completed 16 years of age. Rule 10(5) clearly reflects that the Child Welfare Police Officer is to produce the statements of witnesses 13 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 14 and other documents prepared during the course of investigation within a period of one month from the date of first production of a child before the Board. It is also required that a copy thereof is to be given to the child or parent or guardian of the child. The legislature in its wisdom has prescribed the period of one month to produce the statements of the witnesses and other documents with a copy to the child, subsequent to which, the Preliminary Assessment in case of heinous offences under Section 15 of the Act has to be completed. Meaning thereby, the copy of list of witnesses and other documents along with copy of final report is to be supplied to the child or his parents or to the guardian before making the Preliminary Assessment as per provisions of Section 15 of the Act. It is also stipulated in Section 15 read with Rules 10 and 10-A along with other provisions of the Act that three basic parameters are necessary to be followed in case of a heinous offence before passing the order under Section 18(3) for determining the need for trial of a child as an adult. The Board had to follow three parameters for making Preliminary Assessment as to whether there is a need for the trial of said child as an adult or not. It is to be seen as to how the Board as well as the Appellate Court has appreciated the circumstances of the commission of alleged offence, without the list of witnesses, documents relevant to the matter as well as the final report, which in any case the investigating authority is to file before the Board in less than two months of the production of the child before it.
In the present case, no list of witnesses and documents were supplied to the petitioner or his parents or guardian, which itself shows that the Board as well as the Appellate Court have decided the case without any application of mind and contrary to the provisions of the Act and the Rules 14 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 15 framed thereunder.
The proviso to Section 15 enables the Board to take the assistance of any experienced psychologist or other experts to make the Preliminary Assessment. It is clearly mentioned in para No.17 of order dated 20.12.2017 passed by the Board that in case, the opinion/assistance of any expert is required, the same be taken. It is necessary to assess the mental capacity of the juvenile. It was mandatory for the Board to assess the mental capacity of the alleged offender to commit such an offence and also the ability to understand the consequences of the same. It is also clear from the order that the clinical psychologist has himself suggested that if any further assessment is required, the juvenile may be sent to the Institute of Mental Health at Rohtak. However, it has completely been ignored by the Board and the assessment is based on inappropriate tests, namely, coloured Progressive Matrices (CPM) and Malin's Intelligence Scale for India Children (MISIC) meant for children between the ages of 5-11½ and 5-15 has been taken as the basis for the determination of the mental capacity of a child of 16½ years. Both the Board as well as the Appellate Authority have completely ignored this fact. The petitioner wanted to cross examine the psychologist regarding the same but his request was declined and no permission was granted to him. The social investigation report is also self contradictory and the same is not worth considering. The copies of the tests, in question, were not provided to the petitioner/parents/guardian but were shown just prior to the hearing of arguments. It was not practically possible to understand 35 pages of the report by any layman in a time period of less than 30 minutes. However, in a time period of 30 minutes, the petitioner got to have a look at the record of Dr. Joginder Singh Kairo, Clinic 15 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 16 Psychologist. It came out that he had carried the assessment on the basis of two tests i.e (i) Coloured Progressive Matrices (CPM) and (ii) Malin's Intelligence Scale for Indian Children (MISIC). The petitioner (represented by his father) and his counsel were having no idea about these tests. Subsequently, they tried to find out and came to know that those tests were absolutely irrelevant to the case of the petitioner and could not be used for making the mental assessment of the petitioner. The basic book on Clinical Child Psychology written by Radhey Sham and Azizuddin Khan categorically states that Malin's test of Intelligence for children is made for 5 to 15 years of children. Since the petitioner was 16.75 years old, when these tests were conducted on him, which were not correct tests and have resulted in wrong results. Said expert himself stated in his report that it would be appropriate that further assessment be made by a higher authority. This resulted in the petitioner doubting the credentials of the so called experts. Only because of this reason, the petitioner not only sought copies of the reports but also wanted to cross examine them so as to check the veracity and the credentials of the experts and their reports. However, he was not allowed in spite of specific request and averments made to that effect, leading to travesty of justice. The IQ test of the petitioner was conducted when he was more than 16 years and 9 months of age. An IQ of 95 at the age 16.75 would necessarily translate to 15.67 years, going by the formula for determining the mental age of any child, which is mental age/Biological Age x 100. This means that the petitioner-child has been determined to have a mental age of less than 16 years as per the report of so- called expert. Even as per said report, the petitioner had to be necessarily treated to be below 16 years. As the tests in question, in any case, are for 16 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 17 children below the age of 15 years, the IQ of 95, determined by these tests, would obviously translate to a mental age of much less than 15 years in any case.
The observations made by the Appellate Authority in para No.16 of the order is reproduced as under :-
" Only requirement was to look into the statement of witnesses already running recorded so far and documents, if any, running collected by that time. That too, in the opinion of this court can well be substituted with the brief summary of the investigation/status report running filed before the Board from time to time as compelling investigating agency to place on record the statements of its witnesses and documents running collected during the course of investigation prior to filing of the final report by the investigating agency amounts to intruding in the sphere of investigation which may hamper a fair and impartial investigation."
The Appellate Court has further held that there was no requirement of giving any statement of witnesses or documents etc. to the petitioner/guardian/parent, which is absolutely in contradiction with the provisions of Rule 10(5) read with Sections 3(iii) and (xvi) read with Section 8(3) of the Act. As a matter of fact, all provisions of the Act as well as the Rules made thereunder have to be read harmoniously, to achieve the objective of the Act.
However, learned counsel for the respondent-CBI has tried to convince the Court by stating that the reports/documents are not required to be supplied by considering the factum of confidentiality.
The plea of confidentiality as submitted by learned counsel for the respondent-CBI is actually for the protection of the child from third 17 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 18 party by considering the privacy of the child. It cannot be interpreted that a delinquent child would not get a fair hearing, whereas, it is the requirement of Section 8(3) of the Act that the participation of the child and the parent or guardian is to be at every step of the process. Section 3 especially states that a positive interpretation has to be given to ensure that an environment is created so that the child should feel comfortable. The confidentiality is required with regard to third party just to protect the interest of the child. All the reports related to the child and considered by the Committee or by the Board are required to be treated as confidential subject to the proviso.
Even the Central Bureau of Investigation has also admitted in the proceedings before the Board as well as the Appellate Authority that it does not have such officers, who are specially trained to undertake such investigation, involving children. Meaning thereby, it is clear that the Central Bureau of Investigation does not have such an infrastructure to conduct the investigation for reaching to its logical conclusion keeping in view the special provisons of the Act. All these grounds were mentioned before the Appellate Authority but were not taken into consideration.
The argument raised by learned counsel for the respondent-CBI that this Court has a limited jurisdiction to invoke in the revision petition, does not carry any weight because as per provisions of Section 102 of the Act, in case, there is any illegality and perversity or there is non-compliance of mandatory provisions, this Court has a power to exercise the revisional jurisdiction. This view has been supported by the law laid down in cases Jagannath Choudhary vs Ramayan Singh 2002(2) RCR (Criminal) 813 and Rajinder Singh vs Vishal Dingra 2015(8) RCR (Criminal) 453.
In view of the facts and law position as discussed above, the 18 of 19 ::: Downloaded on - 04-11-2018 23:56:05 ::: Crl. Rev. No.2366 of 2018 19 present petition is allowed and impugned order dated 20.12.2017 passed by the Juvenile Justice Board, Gurugram and order dated 21.05.2018 passed by the Additional Sessions Judge, Gurugram are set aside. The case is remanded back to the Board for afresh consideration after assessing the intelligency, maturity, physical fitness as to how the juvenile in conflict with law was in a position to know the consequences of the offence. The necessary exercise be done within a period of six weeks from the date of receipt of certified copy of the order. It is also relevant to mention here that while conducting preliminary assessment, the opinion of psychologist of the Government hospital be obtained.
(DAYA CHAUDHARY)
11.10.2018 JUDGE
gurpreet
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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