Content:-
Nature of the offence
For the application of this section, it's essential that the juvenile commits a heinous offence, as defined in section 2(33) of the Act.
According to this definition, "heinous offences" encompass offences for which the minimum punishment under the Indian Penal Code or any other prevailing law is imprisonment for seven years or more. This category of offences stands distinct from petty offences and serious offences.
In cases involving such heinous offences, the Board is mandated to adhere to the procedural guidelines akin to a trial in summons cases as delineated under the Code of Criminal Procedure, 1973. This underscores a structured approach tailored specifically for the gravity of the offences in question, ensuring thorough and equitable proceedings.
How is Preliminary Assessment Carried
According to Section 14 of the Act, when a juvenile in conflict with the law, as defined in Section 2(13) of the Act, is brought before the Juvenile Justice Board (referred to as "the Board") established under Section 4 of the Act, the Board is mandated to conduct an inquiry in accordance with the relevant provisions of the Code of Criminal Procedure, 1973 (CrPC).
For a petty offence as defined under Section 2(45) of the Act, as per Section 14(5)(d), the inquiry is conducted in accordance with Chapter XXI of the CrPC. Similarly, for a serious offence defined under Section 2(54) of the Act, as per Section 14(5)(e), the inquiry follows the procedures outlined in Chapter XX of the CrPC.
In cases involving heinous offences, as defined under Section 2(33) of the Act, committed by a child below the age of sixteen years at the time of the offence, the inquiry is conducted following the procedures set forth in Chapter XX of the CrPC, as stipulated in Section 14(5)(f)(i).
At the conclusion of such inquiry, the Board may issue either an order of exoneration under Section 17 or an order under Section 18 of the Act. If an order is passed under Section 18, the Board is required to adhere to the provisions outlined in Section 18(1) and/or 18(2) of the Act.
However, in cases where a child in conflict with the law is above the age of sixteen years at the time of committing a heinous offence, a preliminary assessment inquiry must be conducted as per Section 15 of the Act, as delineated in Section 14(3)/14(5)(f)(ii).
In cases involving heinous offences under Section 15, a preliminary assessment is conducted by the board within a stipulated time frame of three months from the initial presentation of the child before the board. The procedural guidelines for conducting this assessment are outlined in Rule 10A of the Rules.
During the assessment, the board first verifies if the child is above the age of 16 years. It operates under the presumption of innocence for the child unless proven otherwise. To aid in this assessment, the board may seek assistance from psychologists, psycho-social workers, or other experts experienced in working with children facing challenging circumstances.
The use of the term "may" in the proviso should be interpreted as "shall" by the Magistrate, as it is essential for such experts to provide insights into the child's mental state, which the Magistrate may not fully grasp in all cases. Subsequently, the board issues an order for trial as an adult, if deemed appropriate, and provides reasons for its decision.
Various types of reports and evidence are considered during this preliminary assessment:
Social Investigation Report: This report provides detailed information about the child's circumstances, including economic, social, and psycho-social factors, along with recommendations. It is typically prepared by a Probation Officer or a voluntary/non-governmental organization, incorporating evidence presented by the parties involved to aid the board in its decision-making process.
Social Background Report: This report offers insights into the background of the child in conflict with the law, prepared by the Child Welfare Police Officer. To ensure accuracy, the Special Juvenile Police Unit or the Child Welfare Police Officer contacts the child's parents or guardians. This report holds significant weight in determining the child's welfare, as affirmed in the case of Ramachandran v. The Inspector of Police, 1994 CriLJ 3722.
Physical, Mental, and Drug Assessment Report: This report assesses the physical and mental condition of the child, including any drug-related issues.
Preliminary Assessment Report: This report outlines the circumstances surrounding the child's apprehension and the alleged offence, accompanied by a psychological evaluation conducted by a psychologist.
Statements of Witnesses and Investigation Documents: These documents, prepared during the investigation by the child welfare police officer within one month from the child's initial presentation before the board, provide additional insights into the case.
Explanation
The preliminary assessment test under Section 15 of the Act serves the crucial purpose of determining whether a "child in conflict with law" should be tried as an adult by a Children's Court, as outlined in Section 18(3).
Upon the child's presentation before the Board, it becomes imperative for the Board to conduct this preliminary assessment test, focusing on several key aspects:
Mental and Physical Capacity: The assessment evaluates the child's mental and physical capacity to commit a heinous offence as defined in Section 2(33) of the Act.
Understanding of Consequences: It examines the child's ability to comprehend the consequences of the alleged offence.
Circumstances of the Offence: The assessment considers the circumstances under which the offence was allegedly committed.
The composition of the Board is mandated by law, requiring a Magistrate with a minimum of three years of experience and two social workers (Section 4(2)). Rule 10A of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (Central Rules) outlines the procedure for conducting the preliminary assessment into heinous offences by the Board.
According to sub-Rule (2) of the Central Rules, the Board may seek assistance from psychologists, psycho-social workers, or other experts experienced in working with children in various circumstances to aid in the assessment process.
Sub-Rule (3) states that the child is presumed innocent during the preliminary assessment. Sub-Rule (4) specifies that if the Board, upon conducting the preliminary assessment, determines that there is a need for the child to be tried as an adult, it must provide reasons for this decision.
To comprehend the aforementioned provisions effectively, it's essential to consider Section 3 of the JJ Act 2015, which outlines the "General Principles" to be adhered to in the administration of the Act. Clause (i) of Section 3 emphasises the presumption of innocence for a child, while clause (ix) prohibits any waiver of the child's rights. Additionally, clause (xvi) mandates the observance of basic procedural safeguards, including the right to a fair hearing and the rule against bias.
In this context, it becomes apparent that the preliminary assessment test is a mandatory step that must be undertaken by a Board when a child is presented before it in the specified circumstances.
The procedure outlined in Section 15, read in conjunction with Rule 10A of the Central Rules, underscores the Board's obligation to meticulously adhere to the prescribed procedure to arrive at an independent decision, albeit with the assistance of expert opinion.
It is imperative that the Board, and no other entity, formulate the opinion, as no decision-making authority can delegate its power to another authority, as established in Gangajali Education Society v. Union of India, (2017) 16 SCC 656.
An order issued under Section 15 of the Act not only alters the legal status of a juvenile aged between 16 to 18 years, presuming them to be an adult under the law, but also negates the application of the beneficial provisions outlined in Section 18(1)/(2) of the Act.
This order determines the trial forum, trial procedure, and potential punishment in the event of the juvenile's guilt. Given that Section 15 deals with a legal fiction, as stipulated in Section 18(3), it must be interpreted strictly.
Once an order is issued under Section 18(3) of the Act, the case is transferred to the Children's Court. If the Children's Court is designated under the Child Rights Act or POSCO, it follows the trial procedure outlined in CrPC Chapter XVIII.
The Children's Court may draw presumptions of guilt and culpable mental state in accordance with POSCO and may impose any sentence except death penalty and life imprisonment without remission. Protection against disqualification under Section 24 of the Act does not apply to a child tried as an adult.
The decision of the Board must be supported by reasons to demonstrate application of mind. Failure in reasoning leads to failure in conclusion. An order under Section 15 must show satisfaction regarding the child's capacity, understanding of consequences, and circumstances of the offence.
After forwarding the case to the Children's Court, it must decide whether to try the child as an adult or not. If the child is not to be tried as an adult, an additional inquiry is conducted under Section 14(5)(e) of the Act. Rule 13 of the Central Rules mandates the Children's Court to record reasons for its decision under Section 19(1) of the Act.
Leading Case Laws
In the case of Mumtaz Ahmed Nasir Khan v. The State of Maharashtra (2019), the Bombay High Court scrutinised the application of Section 15 of the Juvenile Justice Act in a murder case involving two juveniles, aged seventeen and sixteen respectively. Despite the elder juvenile being assessed as fit for trial as an adult, while the younger one was considered for trial as a juvenile, the court found the criteria used by the Juvenile Justice Board to be vague.
The High Court emphasised that Section 15 assessment is not merely based on age and capacity to commit the offence, but must consider the broader objective of juvenile justice reform. The court criticised the Board's reliance on simplified criteria, stressing the need for a comprehensive evaluation of a juvenile's physical and mental capacity, understanding of consequences, and circumstances of the offence.
The court highlighted the importance of balancing punitive measures with rehabilitation efforts, emphasising the potential for juvenile offenders to reform and contribute positively to society. It concluded that the Board's decision lacked thorough analysis and failed to exercise its jurisdiction effectively, calling for a more nuanced approach in juvenile justice proceedings.
In the case of Durga v. State of Rajasthan (2019), the Rajasthan High Court highlighted serious shortcomings in the assessment process of a child in conflict with the law. Despite the mandate of Section 15 of the JJ Act 2015 and Rule 10A of the Model Rules 2016, the court found that the preliminary assessment lacked adherence to principles of natural justice. Durga, the juvenile involved, was not provided with an effective opportunity for hearing or legal representation. Moreover, the assessment committee did not include psychologists experienced in dealing with troubled children, as required by law.
The court set aside the preliminary assessment order and outlined several key observations and directives:
Investigation was flawed due to the absence of a female police officer and involvement of the Special Juvenile Police Unit, as mandated by the Juvenile Justice Act.
The trial of Durga as an adult was unjustified, as there was no evidence of preconceived design or calculated murder.
The Juvenile Justice Board failed to adhere to mandatory requirements of Section 15 during the enquiry and assessment.
Durga was not provided with legal assistance or a fair hearing during the preliminary assessment. Durga's confinement in the psychiatry ward of the hospital without the presence of experienced psychologists or psycho-social workers further invalidated the assessment.
The Juvenile Justice Board did not presume Durga's innocence, violating the principle stated in Section 3 of the Juvenile Justice Act. The order passed under Section 15 was not provided to Durga, breaching the mandate of Rule 10A.
Durga's incarceration in the District Jail contravened the Act's provisions and vitiated the proceedings before the Sessions Court. Durga suffered nearly two years and seven months of unlawful imprisonment, which the court suspended.
This case underscores the importance of strict adherence to legal provisions and procedural safeguards in juvenile justice proceedings to protect the rights and well-being of children in conflict with the law.
Comments