Procedure to be followed under the Juvenile Justice Act if juvenile above the age of 16 years is involved in the heinous offence

 The Board would inquire into or try a heinous offence adopting the procedure of summons cases if the child was below sixteen years when he had committed the offence. For a child above sixteen years, inquiry must be as per Section 15.

32. Now comes the prominent provision for our purpose: Section 15 of the Act. If a child above 16 years is accused of committing a heinous offence, the Board must conduct a preliminary assessment about the child's mental and physical capacity to commit the alleged offence, his ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence. Then, the Board will pass an order under Section 18 (3) of the Act. It pays to quote 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 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 subsection (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 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.

(italics supplied)

33. As Section 15 permits the Board may, during the preliminary assessment, take the assistance of experienced psychologists or psycho-social workers or other experts. First, the preliminary assessment is "not a trial." Second, it is, instead, an inquiry to assess the child's capacity to commit the alleged offence and to understand its consequences. On inquiry, the Board must satisfy itself in its preliminary assessment about the juvenile's mental and physical capacity, his ability to understand the consequences of the offence, and so on. Then, if the Board is "satisfied on preliminary assessment that the matter should be disposed of", it will follow "the procedure, as far as may be, for trial in summons case under Cr PC." The Board's order is appealable under sub-section (2) of Section 101.

34. Now comes the role of the Children's Court. Once it receives the preliminary assessment from the Board under section 15, it may decide to try the child as an adult under Cr. P.C. If it decides to the contrary, it tries him as a juvenile. The Children's Court, too, "may conduct an inquiry as a Board and pass appropriate orders" under Section 18.

The Adjudicatory Bounds:

35. Against the Board's order under Section 15 of the Act, Section 101 (2) provides for an appeal. The appeal must be before the Court of Sessions. The appellate court, too, takes the assistance of experienced psychologists and medical specialists, other than those who assisted the Board in its passing the order under appeal. As subsection (4) mandates, there is no further appeal against the Court of Session's order.

 So we need to revisit Section 15 of the Act to determine what circumstances compel a juvenile to face the trial as if he were an adult. (1) It must be a heinous offence; here it is. (2) The child must have completed sixteen years; here he has. (3) The Board must have conducted a preliminary assessment; here it has. (4) That preliminary assessment concerns four aspects: (a) the child's mental and (b) physical capacity to commit such offence; (c) his ability to understand the consequences of the offence; (d) and the circumstances in which he allegedly committed the offence. The preliminary assessment, indeed, has been on all these aspects. Agreed. But has the Board found the child fitting into the scheme on all four counts?

88. I reckon of the four aspects--physical capacity, mental ability, understanding, and the circumstances--none is dispensable. They all must be present, for they are not in the alternative. Let us remind ourselves, just because the statute permits a child of 16 years and beyond can stand trial in a heinous offence as an adult, it does not mean that the statute intends that all those children should be subject to adult punishment. It is not a default choice; a conscious, calibrated one. And for that, all the statutory criteria must be fulfilled.

The whole endeavour of the JJ Act is to save the child in conflict with the law from the path of self-destruction and being a menace to the society. It is reformative, not retributive. Section 15, I believe, must be read and understood keeping in view the objective that permeates the whole Act and the spirit it is imbued with.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 1153 of 2018, Criminal Writ Petition No. 1346 of 2018 and Criminal Application No. 262 of 2018 in Writ Petition No. 1346 of 2018

Decided On: 15.07.2019

Mumtaz Ahmed Nasir Khan  Vs.  The State of Maharashtra 

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.
Read full judgment here: Click here

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