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Juvenile Justice Act, 2015 : Preliminary Assessment Evaluation: A Two-Tier Process

The Juvenile Justice (Care and Protection of Children) Act, 2015 (in short `the Act') was brought in the system of criminal trial wherein juvenile aged between 16-18 years can be deemed to be an adult in case of commission of heinous offences and therefore can be tried before a criminal court under Section 6 of the Code of Criminal Procedure, 1973 (in short `Cr P C') in accordance with the ordinary procedure of law. Section 15 of the Act provides the mechanism for determination of the mental and physical capacity of a juvenile of such age regarding the commission of the offences and the consequences thereof in order to presume such juvenile `as an adult' by employing legal fiction. The juvenile in fact need not to be an adult. But in law such juvenile will be considered as an adult.

Since such an inquiry has immense ramification qua a juvenile aged between 16-18 years, it is of paramount importance that the said inquiry is conducted following the provisions of law in its letters and spirits. But in fact more often than not, it is found that such legal mandate in conducting such an inquiry is breached in impunity.

According to Section 14 of the Act, when a `child in conflict with law' within the meaning of Section 2 (13) of the Act is produced before the Juvenile Justice Board (in Short `the Board') constituted under Section 4 of the Act, the Board is obligated to hold an inquiry as per Chapter XXI of the Code of Criminal Procedure, 1973 (in short `Cr PC') in case of petty offence defined under Section 2(45) of the Act (vide Section 14 (5)(d)); or an inquiry as per Chapter XX of Cr P C in case of serious offence defined under Section 2(54) of the Act (vide Section 14(5)(e)), or an inquiry as per Chapter XX of Cr P C in case of heinous offence defined under Section 2(33) of the Act for a child below the age of sixteen years as on the date of commission of the offence (vide Section 14(5)(f)(i)). At the conclusion of such inquire the Board may pass either an order under of exoneration under Section 17 or an order of (victual) conviction under Section 18 of the Act. In case an Order is passed under Section 18 of the Act, the Board is required to follow the provisions mentioned under Section 18(1) and / or 18(2) of the Act.

However, in case `a child in conflict with law' above the age of sixteen years as on the date of commission of the offence being an accused of a `heinous offence', a preliminary assessment inquiry has to be conducted in terms of Section 15 of the Act (vide Section 14(3)/ 14(5)(f)(ii)).

The purpose of such preliminary assessment test under Section 15 of the Act is to ascertain as to whether `the child in conflict with law' is required to be tried as an adult by a Children's Court (vide Section 18(3)) or by the Board. In the aforesaid eventuality, once `a child in conflict with law' is produced before the Board, it is therefore, imperative for the Board to conduct a preliminary assessment test under Section 15 of the Act with regard to:

a. The mental and;

b. Physical capacity to commit a heinous offence within the meaning of Section 2(33) of the Act and;

c. Ability to understand the consequences of the offence and;

d. The circumstances in which he allegedly committed the offence.

In coming to such a conclusion the board may take the assessment of experienced psychologist or psycho-social workers or other experts.

In this regard, it may be mentioned that the Board must consist of a Magistrate with at-least 3 years of experience and two social workers (vide Section 4(2)).

Rule 10A of the said Act (Care and Protection of children) Model Rules, 2016 (in short `Central Rules') prescribes the procedure for preliminary assessment into heinous offences by the Board. It provides that the Board shall in the first instance determine whether the child is of 16 years of age or above. According to sub-Rule (2) of the Central Rules, for the purpose of conducting a preliminary assessment in case of heinous offences the Board may take assistance of psychologist or psycho-social workers or other experts who have experience of working with the children in different circumstances. According to sub-rule (3) of the Central Rules, while making the preliminary assessment, the child shall be presumed to be innocent. According to sub-rule (4) of the Central Rules, where the board, upon a preliminary assessment passes an order that there is a need for trial of the said child as an adult, `it shall assign reasons for the same'.

In order to appreciate the aforesaid provisions Section 3 of the said Act may be taken into consideration. Section 3 enumerates `General Principles to be followed in administration of the said Act'. According to Clause (i) of Section 3, a child shall be presumed to be innocent of any mala-fide or criminal intent. According to clause (ix) of section 3, no waiver of any right of the child is permissible or valid. According to Clause (xvi), basic procedural safeguards of fairness shall be adhered to, including the right of a fair hearing, rule against bias, etc.

In the aforesaid backdrop, it is therefore evident that the preliminary assessment test is a compulsory step which has to be necessarily followed by a Board once a child is produced before it in the eventualities as mentioned hereinabove. The procedure enumerated in Section 15 read with Rule 10A of Central Rules make it imperative for the Board to scrupulously and religiously follow the procedure in order to come to an independent decision, of course with aid of expert opinion. The crux is that the formulation of the opinion must, therefore be by the Board and none else. The Board cannot abdicate its essential judicial function. It is trite law that no decision making authority can abdicate its decision making power to another authority (vide: Gangajali Education Society v. Union of India, (2017) 16 SCC 656).

An order under Section 15 of the Act not only gives a different legal character to a juvenile aged between 16 to 18 years thereby presuming the said juvenile to be an adult in the contemplation of law, but also takes away the application of the beneficial provisions enumerated under Section 18(1)/(2) of the Act. It eventually determines the forum for trial, procedure for trial and the punishment that can ultimately be imposed in case the said juvenile is found to be guilty. Since the provision under Section 15 of the Act deals with a legal fiction (vide Section 18(3)), it has to be construed strictly. It is too well settled that a deeming provision deserves strict construction (Vide: Gopal & Sons (HUF) v. CIT, (2017) 3 SCC 574).

Once an order is passed under Section 19 (3) of the Act, the case of the said child is transferred to the Children's Court within the meaning of Section 2(20) of the Act. In case the Children's Court is a designated court under Section 25 of the Commissions for Protection of Child Rights Act, 2005 (in short `the Child Rights Act') vis a vis under Section 28 of the Protection of Children from Sexual Offences Act, 2012 (in short `POSCO'), it will follow the procedure for trial of a sessions case under Chapter XVIII of Cr PC (vide Section 19 (2) read with Section 33 of POSCO vis a vis Section 25 of the Child Rights Act and Rule 12(8) of the Central Rules). The Children's Court may draw presumptions of guilt and culpable mental state under Sections 29 and 30 of POSCO respectively, in appropriate cases. It may pass any order of sentence except death sentence and life imprisonment without remission (vide Section 21) unlike the Board under Section 18 of the Act. The protection against disqualification under Section 24 of the Act will also not operate qua a child in conflict with law who was tried as an adult by the Children's Court.

Section 15 of the Act therefore, envisages a crucial judicial examination which determines the status of the child qua a criminal trial. Though Section 15 of the Act is a component of an enquiry and not a trial, nevertheless, such inquiry requires application of judicial mind and the same is not a ministerial work. In this regard it may be mentioned that in the Act, the provisions for trail as envisaged under Cr PC has been generally conceptualized as inquiry. By virtue of sub-rule (3) of Rule 10A of Central Rule, during the decision making process the Board is obliged to presume the child to be an innocent.

The decision passed by the Board must necessarily be supported by reasons inasmuch as assigning reason is the best way out to demonstrate the application of mind. In case the reasoning fails, as a consequence thereof, the conclusion fails equally. An order under Section 15 of the said Act has therefore need to demonstrate satisfaction regarding the mental and/or physical capacity of the child to commit a heinous offence; the ability of the child to understand the consequences of the offences, and the circumstances in which the alleged offence had occurred.

Very recently, the Hon'ble Supreme Court of India in Shilpa Mittal v. State of NCT of Delhi and Another, AIR 2020 SC 405 has underlined the importance of such provision and held,

"18. The Children's Court constituted under the Act of 2015 has to determine whether there is actually any need for trial of the child as an adult under the provisions of Cr. PC and pass appropriate orders in this regard. The Children's Court should also take into consideration the special needs of the child, tenets of fair trial and maintaining child- friendly atmosphere. The Court can also hold that there is no need to try the child as an adult. Even if the Children's Court holds that the child has to be tried as an adult, it must ensure that the final order includes an individual care plan for rehabilitation of the child as specified in Sub-section (2) of Section 19. Furthermore, under Sub-section(3) such a child must be kept in a place of safety and cannot be sent to jail till the child attains the age of 21 years, even if such a child has to be tried as an adult. It is also provided that though the child may be tried as an adult, reformative services, educational services, skill development, alternative therapy, counselling, behaviour modification, and psychiatric support is provided to the child during the period the child is kept in the place of safety."

The Hon'ble Punjab and Haryana High Court in Bholu v. CBI, 2019 (1) RCR (Cri) 603 has inter alia held that the parameters led down under Section 15 of the Act are required to be followed strictly. It was held:

"17. 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.

18. 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 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.

19. 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 framed thereunder.

20. 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 5-11-1/2 and 5-15 has been taken as the basis for the determination of the mental capacity of a child of 16-1/2 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 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 socalled 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 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.

21. 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."

22. 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.

23. 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.

24. The plea of confidentiality as submitted by learned counsel for the respondent-CBI is actually for the protection of the child from third 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.

25. 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.

26. 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 v. Ramayan Singh 2002(2) RCR (Criminal) 813 and Rajinder Singh v. Vishal Dingra 2015(8) RCR (Criminal) 453."

The Division Bench of Hon'ble Rajasthan High Court in Smt. Durga Bherulla Meena v. State of Rajasthan, 2019 Cri LJ 2720 (Raj) has inter alia held that the requirements of Section 15 of the Act are mandatory:

"31. In view of the above discussion made herein above, we conclude as below:

I. that the entire investigation is vitiated for the reason that no female police officer was associated in the investigation against female child offender. Furthermore, the investigation was not conducted by the Special Juvenile Police Unit as warranted by Section 107(2) of the Juvenile Justice Act;

II. that the appellant did not murder her husband in furtherance of any pre-conceived design or in a cold calculated manner, and thus there was no justification for her trial as an adult by a Sessions Court by virtue of Section 15 of the Juvenile Justice Act;

III. that the Principal Magistrate failed to adhere to the mandatory requirements of Section 15 of the Act while holding the enquiry and making the assessment;

IV. that no legal assistance/ effective opportunity of hearing was provided to the appellant child during the preliminary assessment made by the Juvenile Justice Board under Section 15 of the Act and thus also, these proceedings are vitiated;

V. that the preliminary assessment order is also vitiated for the reason that the appellant was unjustly kept confined in the psychiatry ward of the Hospital and because no psychologist or psycho-social worker having experience of working with children in difficult circumstances (as mandated by Section 15(3) of the Juvenile Justice Act), was associated during the enquiry conducted under Section 15 of the Juvenile Justice Act;

VI. While holding the inquiry, the Juvenile Justice Board, failed to adhere to the principle that the child shall be presumed to be (15 of 25) [CRLA-27/2019] innocent unless proved otherwise as mandated by Section 3 of the Juvenile Justice Act read with Rule 10A(3) of the Model Rules, 2016. No consideration of this principle is reflected in the order and thus, the illegality is incurable and goes to the root of the matter;

VII. copy of the order passed under Section 15 of the Act was not provided to the juvenile of thus breaching the mandate of Rule 10A of the Model Rules of 2016;

VIII. that the under-trial child was sent to the District Jail, Pratapgarh vide order dated 19.08.2017 and thus, was treated in gross contravention of the mandate of Section 19(3) read with Section 46 of the Act of 2015 thereby vitiating the entire proceedings before the Sessions Court.

IX. The child suffered incarceration from 16.05.2016 to 11.02.2019 on which date this Court suspended the sentences awarded to her and thus, she has undergone a custodial period of nearly two years and seven months in a prison which course of action is totally prohibited by law."

The Hon'ble Odisha High Court in Manas Kumar Khuntia v. State of Orissa, 2016(II) Orissa Law Reporter 935 has insisted on mandatory compliance of Section 15 of the Act. It was held

"10. In view of section 15 read with section 14 (5) (f) of the 2015 Act, it is clear that once the child is above the age of sixteen years as on the date of commission of "heinous offence", he shall be dealt with in the manner prescribed under section 15 of the 2015 Act. 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. For making such an assessment, the Board may take into the assistance of experienced psychologists or psycho-social workers or other experts.

11. In view of the purpose of amendment for which the Juvenile Justice (Care and Protection of Children) Act, 2015 was enacted after repealing the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) by virtue of section 111 of 2015 Act, it is the requirement of law that in case of a child who has completed or above the age of sixteen years as on the date of commission of "heinous offence", the Juvenile Justice Board constituted under section 4 of 2015 Act has to make a preliminary assessment in terms of section 15 of 2015 Act. Though in the proviso to Sub-section (1) of section 15 of 2015 Act, the word "may" had been used, but in the context of the provision, when the power is coupled with an obligation and duty, the word "may" which denotes discretion should be construed to mean a "command" and it becomes mandatory otherwise it would defeat the very purpose of the amended Act.

12. The L.C.R. does not indicate that any such assessment has been made and therefore, before adjudicating the bail application, it is felt necessary that a preliminary assessment report in terms of section 15 of the 2015 Act should be called for from the learned C.J.M.-cum-Principal Magistrate, Juvenile Justice Board, Jajpur in J.G.R. Case No.21 of 2016."

The Hon'ble Delhi High Court in Pradeep Kumar v. State of NCT of Delhi, (2019) 260 DLT 641 (Delhi) has inter alia held

"9. The proviso attached to Section 15 of the Act, provides that the JJ Board may take the assistance of experienced psychologist or psycho-social worker or other experts. Further, the explanation to the Section provides that preliminary assessment is not a trial but is to assess the capacity of such CCL to commit and understand the consequences of the alleged offence.

10. The JJB-II as well as the Appellate Court has taken into consideration, all the parameters and factors mentioned in Section 15 of the Act while passing the impugned order and judgment, respectively. Further, the JJB-II has given a careful thought and consideration to the submissions of both the parties as well as the legal position in this regard. Similarly, the Appellate Court has also given careful thought and consideration to the submissions of the learned counsel for the petitioner. There is no doubt that the JJ Board may seek the opinion of an expert regarding the mental and physical capacity of a CCL to commit an offence and it is not necessary that if an expert opined that the mental and physical capacity of a CCL and his ability to understand the consequence of the offence are positive, then the JJ Board is bound by the expert opinion. It is well within the jurisdiction of the JJ Board to agree or disagree with the preliminary assessment report of the CCL submitted by such a psychologist to the JJ Board. But the circumstances, in which the alleged offence was committed has to be considered by the JJ Board independently, in which the alleged offence was committed and the JJ Board has to apply a judicial mind."

The Hon'ble Karnataka High Court in Puneet S. v. State of Karnataka, 2019 (4) AKR 662 has held that

"9. Section 15 of the JJ Act is a procedure to conduct a Preliminary assessment to consider this type of heinous offence. The said provision specifically says that if the offence is heinous in nature and the accused person has completed the age of 16 years and if he is below the age of 18 years, the Board shall conduct a preliminary assessment with regard to the mental and physical capacity to commit such offence, and also the ability to understand the consequences of the offence and the circumstances in which, he allegedly committed the offence and thereafter, the Board can pass appropriate orders under sub section (2) of section 15 or under sub section (3) of Section 18 of the JJ Act.

10. For the purpose of analysing and coming to a conclusion to pass order u/s.15 of the JJ Act, the Board has got ample power to take the assistance of an experienced psychologists or Psycho-social workers or other experts. It is also made clear that, if the Board is satisfied on the preliminary assessment and arrived at a conclusion that the Board itself can dispose of the case by following the procedure to try the accused before the Board itself as contemplated under the provisions of the Cr P C and the JJ Act. In such on eventuality, the Board shall not send the Juvenile to the Sessions Court for trial. Therefore, it is crystal clear that such power is exclusively vested with the Board to pass such an order. The main object of Section 15 is to ascertain and assess the total capacity of the accused on the basis of the facts and on the basis of the expert's opinion if necessary as contemplated under the said provisions. It is not a mechanical power entrusted to the Board. It should also be borne in mind that mere using of the words that "the accused is mentally and physically capable of committing such an offence and ability to understand the consequences and also the circumstances existed to establish the above said factors", but, the Board has to in detail examine with reference to the surrounding circumstances and if necessary after taking expert's opinion has to reason out, why the Board is coming to such a conclusion. But, this has not been taken care of by the learned Sessions Judge while passing the impugned order.

11. Be that as it may, as could be seen from the above said provision, the learned Sessions Judge or the Special Judge or the Child Friendly Court, presided over by the learned Sessions Judge have absolutely no power to pass any order u/s.15 of the Act. It is the statutory power vested with the Board. This has completely lost the sight of the Sessions Judge as could be seen from the order itself.

12. Once the Board comes to the conclusion that the Board has got jurisdiction then the Board shall follow the procedure as contemplated u/s.15 of the JJ Act and to proceed with the trial against the accused. If the Board come to the conclusion otherwise than the above, and after inquiry, the Board is of the opinion that the accused after the preliminary inquiry as contemplated u/s.15, feels that there is a need for trial of the child as an adult, then by giving reasons to the effect that the accused/juvenile is between the age of 16 and 18 years, and he was mentally and physically competent to commit such an offence and he was able to understand the consequences of the offence and also the circumstances in which he has committed the offence, then only the Board shall pass order of transfer of the case to the Children's' Court/Sessions Court having jurisdiction to try such offence, as specified under section 18(3) of the said JJ Act.

13. Looking from the above said angle, considering the provisions of Sections 15 and 18 of the JJ Act, the II Addl. Sessions Judge, Kolar, had absolutely no jurisdiction to pass order u/s.15 of the JJ Act. The Sessions Court has not even cared to look into the provisions of the Act, but in an over enthusiasm appears to have passed the above said order. Under the above said circumstances, the order is not sustainable either in law or on facts."

The Hon'ble Bombay High Court in Mumtaz Ahmed Nasir Khan and Others v. State of Maharashtra and Others, 2019 (4) Bom CR (Cri) 261 (Bombay) has inter alia held

"33. As Section 15 permits the Board may, during the preliminary assessment, take the assistance of experienced psychologists or psychosocial 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.

38. A universally accepted ideal is that children are dependent and deficient in the mental and physical capacities, and are in need of guidance. Perhaps, initially, a multi-visual medium like TV; later, a globe devouring internet (appropriately, ominously worded as "world wide web"), and finally-and fatally-the post-truth social media have let the children, especially the adolescents, leapfrog into the adult world. Mostly it is a crash-landing, with disastrous consequences. So the childhood innocence is the casualty. These devices may have made a child bypass his or her childhood, sadly. Then, naturally, the theory of reduced culpability for juveniles relative to adults has taken a statutory dent. The good-old-days icon of a truant child seems to get replaced by the modern-day mascot of a violent predator.

87. 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.

89. Here, the Social Investigation Report records many factors uniformly in the older juvenile's favor. It misses out on one very vital aspect: the neighborhood perception of the juvenile. It records an improbable circumstance: that in a residential apartment, none was present to provide information on that count. On every other parameter, the Report favors the juvenile. In fact, the juvenile makes a clean breast of the incident or crime and expresses remorse for the accident, as he calls it. It is, true, an extra-judicial confession. So is what the police have extracted from him about the child's death. The older juvenile did report to the Probation Officer about the police brutality and the Report responds to it. It has informed the Board about the juvenile's allegation.

90. Despite the older juvenile's "confession" to crime, the Report records that he has been manipulative and evasive-even contradictory. But the very Report belies it. Perhaps, the gravity of the offence and the public outcry must have heavily weighed on the Report. Let us take, for want of better evaluative norms, Kent's criteria and assess the Board's justification to try the older juvenile as an adult:

(1) The seriousness of the alleged offense to the community and whether protecting the community requires a waiver:

The offence serious-even grave-and the community needs protection. But the Social Investigation Report misses out on gathering the community's opinion whether it needs protection from this juvenile. Is he a predator on the prowl and out to repeat the offence with or without provocation? The older juvenile, in fact, is an ordinary, unremarkable neighborhood boy.

(2) Was the alleged offence committed in an aggressive, violent, premeditated, or willed manner?

No. Even the extra-judicial confession does not spell out that it was.

(3) Was the alleged offense committed against persons or against property, with a greater weight attached to offenses against persons, especially if personal injury resulted.

The alleged offence answers this claim here.

(4) The prosecutive merit of the complaint; that is, is there evidence upon which the court may be expected to return a guilty verdict?

Very likely (only for the evaluative purpose, though)

(5) The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults.

It does not apply here.

(6) The sophistication and maturity of the juvenile by consideration of his home, environmental situation, emotional attitude, and pattern of living:

Post the alleged offence, the juvenile seems to have displayed some sophistication in making calls of ransom only to deflect the police attention. But the juvenile's home, environmental situation, emotional attitude and pattern of living are normal or unremarkable. Especially, his family and pattern of living are almost ideal, as per the Report.

(7) The record and previous history of the juvenile, including previous contacts with the law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation or prior commitments to juvenile institutions.

To this criterion, the answer is a clear no. The juvenile had been pursuing his education, had been under strict parental care, and has no criminal track record.

(8) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by using the procedures, services, and facilities currently available to the juvenile court.

On this count, we may note that post the incident, the parents faced social opprobrium and shunning. They were forced to shift to some other place. They preferred the juvenile to be kept in the Observation Home.

91. In the Observation Home, the older juvenile's conduct is reported as good. He studiously pursued his studies and even cleared the Board examination. Both the Social Investigation Report and the MH Report reveal that the juvenile has been remorseful about the event and displayed a calm, unagitated mind.

92. The explanation to Section 15 of the Act clarifies that the preliminary assessment is not a trial; it is an exercise to assess the child's capacity to commit and understand the consequences of the alleged offence.

93. In this context, if the Board's criteria of evaluation, as affirmed by the Appellate Court, are followed, then every case becomes an open and shut case. If the child is 16 or above and is capable of committing the offence and understanding the consequences, that will suffice. I am afraid it ought to be more than that. The whole endeavor 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.

94. That to contain crime, the State must be strict and the punishment must be harsh is an intuitive assertion; but sometimes the solution to the crime are counterintuitive. Steven D. Levitt and Stephen J. Dubner, in their popular book Freakonomics[16] , have hypothesized that the juvenile crime in a few of states of the US has come down thanks to Roe v. Wade, a judgment of the American Supreme Court that legalized abortion. Critics apart, there can be ideas that are worth exploring. It is equally worthwhile, first, to explore for ideas, instead getting stuck in a predictable, plebian approach to societal problems.

98. Merely on the premise that the offence is heinous and that it lends to the societal volatility of indignation, we are bracing for juvenile recidivism. Retributive approach vis-a-vis juveniles needs to be shunned unless there are exceptional circumstances, involving gross moral turpitude and irredeemable proclivity for the crime. Condemned, any juvenile is going to be a mere numeral in prison for a lifetime; reformed, he may redeem himself and may become a value addition to the Society. Let no child be condemned unless his fate is foreordained by his own destructive conduct. For this, a single incident not revealing wickedness, human depravity, mental perversity, or moral degeneration may not be enough. Just deserts are more than mere retribution.

99. The Society, or restrictively the aggrieved person, views any problem ex post; it wants a wrong to be righted or remedied to the extent possible. The courts, especially the Courts of Record, view the same problem ex ante. "It involves looking forward and asking what effects the decision about this case will have in the future"[19]. To be more accurate, the courts balance both perspectives. I reckon Section 15 of the Act requires us to balance both the competing perspectives: ex post and ex ante.

[19] [The Legal Analyst, Ward Farnsworth, The University of Chicago Press, Ed. 2007. P. 5]

100. So I conclude that the Board, in the first place, has mechanically relied on the Social Investigation Report and MH Report, without analyzing the older adult's case on its own. Similarly, the Appellate Court has also endorsed the order in appeal, without exercising the powers it has under Section 101. So both fail the legal scrutiny; they have failed to exercise the jurisdiction vested in them."

After an inquiry under Section 15 of the Act, one `a child in conflict with law' is forwarded to the Children's Court in terms of Section 18(3) of the Act, the Children's Court is obligated to decide the issue as to the need for trial of the said child by the Children's Court a-fresh (vide Section 19(1)). In case the Children's Court finds that there is a need for trial of the child as an adult as per ordinary procedure of Cr P C (read with Section 4(2) of Cr PC), the Children's Court may proceed in terms of Section 19(1)(i) of the Act. However, if is it found by the Children's Court that there is no need for trial of the child as an adult, the Children's Court may conduct an inquiry under Section 14(5)(e) of the Act. Hence, it is evident that in order to commence trial of a child aged between 16 to 18 years in case of heinous offences the Children's Court has to conduct an additional inquiry. In this regard attention may be drawn to the provision of Rule 13 of the Central Rules. As per Rule 13(1) Children's Court is obliged to decide whether there is need for trial of the child as an adult or not and to pass appropriate orders. As per Rule 13(6), the Children's Court shall record its reasons while arriving at a conclusion in passing an order under Section 19(1) of the Act.

The Hon'ble Delhi High Court in CCL LK @ LKP v. State, (Delhi), 2019 (262) DLT 319 has interpreted Section 19(1) of the Act read with Rule 13 of the Central Rules and held as follows:

"19. Though, once again the expression used in Rule 13(1) is that the Children's Court may decide, however, Rule (6) uses the expression 'shall' and mandates the Children's Court to record its reasons while arriving at a conclusion whether the child is to be treated as an adult or as a child.

20. Rule 13(7) stipulates that in case the Children's Court decides that there is no need for trial of the child as an adult, then it shall decide the matter itself. It is thereafter to conduct an inquiry as if it was functioning as a Board and follow the procedure for trial in summon cases under Cr. P.C.

21. Rule 13(8) stipulates that in case the Children's Court decides that there is need for trial of the child as an adult, it is to follow the procedure prescribed by Cr. P.C. or trial by Sessions.

22. Reading of Rule 13 in conjunction with Section 19 of JJ Act clearly shows that it is obligatory on the part of the Children's Court to take a decision after receipt of the preliminary assessment report from the Board as to whether there is need for trial of the child as an adult or as a child. Appropriate speaking order recording reasons for arriving at the conclusion is to be passed by the Children's Court.

23. In the present case, once the preliminary assessment report was received from the Board opining that the child should be treated as an adult, record does not reveal any application of mind or an independent decision taken by the Children's Court in terms of Section 19 read with Rule 13(1) and 13(6). The Children's Court has thereafter proceeded on to frame charges by the impugned order.

24. Perusal of the record further shows that the testimony of the child victim has already been partly recorded before the trial court.

25. No doubt, the Children's Court has not passed an order under Section 19, independently taking a decision as to whether the petitioner is to be tried as an adult or as a child, the same in my opinion would not vitiate the proceedings, thereafter undertaken but, would be an irregularity which would be curable.

26. The reason for holding so, is that in both eventualities, i.e. trial as an adult and trial as a child, the proceedings have to continue before the Children's Court.

27. In terms of Rule 13(7) in case the Children's Court decides that there is no need for trial of the child as an adult, then, it (Children's Court) has to conduct an inquiry as if it were functioning as a Board and following the procedure for trial of the summon cases.

28. In case the Children's Court decides to try the child as an adult, then, it (Children's Court) has to conduct the trial following the procedure of trial by Sessions Court."

The two-tier inquiry as conceptualized under the Act cannot be diluted under any circumstances either by the Board or by the Children's Court even though no objection was raised from the defence. It is trite law, nevertheless fundamental that a Legislative wisdom decision cannot be abjured by resorting to the equitable doctrine of waiver [Vide: The Deputy Legal Remembrancer on behalf of the Government of Bengal v. Upendra Kumar Ghosh, (1907-1908) XII Cal WN 140 at Page 143].

Apart from that under Section 3 of the Act no waiver of right of the child is permissible or valid (vide (ix)).

From the facts and circumstances as narrated hereinabove, it is evident that under the Act and the Central Rules there are two tier inquiry contemplated before forwarding a child in conflict with law aged between 16 to 18 years for alleged commission of heinous offence to the Children's Court and the procedure of such inquiry as contemplated are to be strictly construed by the Board and the Children's Court respectively.

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