From the aforesaid excerpt, it becomes clear that when the word 'may' is used in an enactment in respect of a Court, the same has to be understood as 'shall'.{Para 12}
13. Looking to the fact that the order transferring the case of Juvenile between 16 to 18 years of age to the Children Court in itself is a step which needs to be taken very cautiously looking to the far reaching consequences and it would indeed be appropriate that the word 'may' be read as 'shall'.
14. Now the question is whether the Probation Officer can be considered to be an expert in the sense as described in the proviso to Section 15 of the Act. The aforesaid proviso requires assistance of experienced psychologists, or psycho social workers or other experts. Rule 10(a) expands the word "other experts" as "other experts who have experience of working with children in difficult circumstances". An expert can be considered to be one, who by way of his profession deals with a specialized subject. Probation Officers are such professionals who on daily basis work with children in difficult circumstances, hence a Probation Officer fits the bill of "other experts" as provided under Section 15 of the Act. Form No.6 which is the social investigation report for children in conflict with law, is required to be submitted by the Probation Officer. Various columns therein not only take into account social environment but also psychology of the child. Such a report by Probation Officer was considered to be a relevant feedback for obtaining preliminary assessment as per Section 15 of the Act in the judgment of Ashish Vs. State of Haryana (CRR No.851/2017 High Court of Punjab and Haryana, Chandigarh).
15. Broadly speaking, the preliminary assessment report should have shown conclusions regarding the following aspects:-
(i) Mental capacity to commit such offence.
(ii) Physical capacity to commit such offence.
(iii) Ability to understand the consequences of the offence and
(iv) Circumstances in which the juvenile in question had allegedly committed the offence.
16. The explanation to Section 15 makes it clear that the 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. The Apex Court in the case of Shilpa Mittal Vs. State of NCT of Delhi and Another in Criminal Appeal No.34/2020 (Arising out of SLP (Cri.) No.7678 of 2019) vide judgment dated 9.1.2020 has observed as under:-
"16............................... The explanation makes it clear that the preliminary assessment is not to go into the merits of the trial or the allegations against the child. The inquiry is conducted only to assess the capacity of the child to commit and understand the consequence of the offence. If the Board is satisfied that the matter can be disposed of by the Board, then the Board shall follow the procedure prescribed in summons cases under the Cr.P.C."
17. In the present case the Board, by way of extra caution, did not totally bank upon the Probation Officer's report but has individually prepared a questionnaire and has put questions in a manner so as to assess the mental capacity of the juvenile. Although the questions relate to the facts of the case but the purpose therein appears to be, as to whether the juvenile understands the gravity of the impugned act and its consequences. The manner in which the juvenile has responded to the questions, shows that he is articulate enough to respond in a manner showing his adequate capacity to understand the gravity of the offence and consequences thereof and, therefore, he has answered in a manner displaying his innocence and non involvement in the crime.
20. The applicant is decidedly above 16 years of age, which has not been controverted and the offence for which he is accused of, is a heinous offence as per Section 2(33) of the Act.
21. After considering all these aspects, the Juvenile Justice Board has arrived at its conclusion which has rightly been affirmed by the appellate court.
22. It is not as if the applicant would invariably be tried as an adult after his transfer to the Children Court because as per Section 19 of the Act of 2015, the Children's Court may again decide that there is no need for trial of the child as an adult and the Children Court may itself conduct an enquiry as a Board and pass appropriate orders in accordance with the provisions of Section 18 of the Act. Thus, the Act of 2015 embodies multilayered checks and balances in respect of the manner such a juvenile ought to be dealt with.
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