Partly allowed

Minor 'X' v. State of U.P. and Another

Allahabad HC2 Nov 2022CRLR/656/2022

Case brief

AI extract

What is this about?

This criminal revision challenged orders transferring a juvenile to adult trial. The court held that the Juvenile Justice Board failed to statutorily mandatoryly seek expert psychological opinion on mental capacity and consequence understanding. The orders were set aside and remanded for fresh preliminary assessment.

What did the court decide?

Impugned orders dated 23.12.2021 and 11.08.2021 set aside. Matter remanded to Juvenile Justice Board for fresh preliminary assessment within one month.

Minor 'X' Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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A.F.R.

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Reserved on 19.09.2022

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Delivered on 02.11.2022

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Court No. - 91

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Case :- CRIMINAL REVISION No. - 656 of 2022

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Revisionist :- Minor ‘X’

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Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Abhishek Kumar,Anjani Kumar Rai Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Jyotsna Sharma,J.

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It appears that name of the revisionist-juvenile has been disclosed in the memo of revision. This fault from the side of revisionist escaped detection by the Registry. The concerned Registry is directed to delete the name of the revisionist-minor from the title of the revision as fed and shown in the data on official website and represent him as "Minor 'X'.

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Heard Sri Abhishek Kumar, learned counsel for the revisionist and Ms. Aaarti Agrawal assisted by Sri Vinay Kumar Singh, learned counsel for the State-respondent. None appears for the respondent no. 2 despite service of notice.

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This criminal revision has been filed challenging the order dated 11.08.2021 passed by the Juvenile Justice Board, Azamgarh and further challenging the order dated 23.12.2021 passed by the Special Judge, POCSO Act, Azamgarh in Criminal Appeal No. 51/2021 affirming the order of the Juvenile Justice Board whereby it was ordered that the child in conflict with law shall be tried as an adult in terms of provisions of Section 15 of the Juvenile Justice Act, 2015 for criminal case arising out of Case Crime No. 40 of 2018 under Sections 307, 342, 452, 354, 326k, 326kh, 302, 376, 511 IPC, Sections 7/8 POCSO Act and Section 3(2)5 of SC/ST Act, Police Station Nizamabad, District-Azamgarh.

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Facts relevant for the purpose of this revision are as below:

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A FIR was registered against the revisionist-accused person with the allegations that he used to harass the daughter, aged about 16 years, of the informant; the girl was compelled to change her mobile number. On

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07.05.2018, the accused came to his house and asked from his daughter about the new number; when she refused to give the same, he locked the victim in the room and set her ablaze after pouring kerosene oil. She sustained 91% of the burn injuries and thereafter, succumbed to it. The matter came before the Juvenile Justice Board; the age determination inquiry was conducted by the Juvenile Justice Board on 19.09.2020 and he was declared a juvenile aged about 17 years 4 months on the date of the occurrence. Thereafter, the Juvenile Justice Board proceeded to conduct an inquiry under Section 15 of the Juvenile Justice Act, 2015 and came to a conclusion that the juvenile should be tried as an adult and transmitted the matter to the Sessions Court by an order dated 11.08.2021. Against the aforesaid order of the Juvenile Justice Board, an appeal was preferred on behalf of the juvenile accused before the Special Judge, POCSO Act, Appeal No. 51 of 2021 and the same was dismissed and the order of the Juvenile Justice Board was affirmed by the order dated 23.12.2021. Now, the juvenile has come in revision under the provisions of Section 102 of the Juvenile Justice Act, 2015 challenging the order dated 11.08.2021 passed by the Juvenile Justice Board as well as the order dated 23.12.2021 passed by the appellate Court.

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It is contended on behalf of the revisionist that the impugned orders are arbitrary and bereft of cogent reasons and have been passed by nonapplication of mind; the grounds raised by the revisionist before the appellate court below have not been considered and no finding have been recorded thereon. It was incumbent upon the courts below to take assistance of psychologist/psychiatrist or other experts before deciding the appeal but no such measure was taken; the social investigation report clearly showed that the juvenile had no criminal tendencies; no adverse opinion was expressed by the people of the locality against the juvenile about his conduct, character and behaviour, but those facts have been ignored; the question and answers, which were put to the juvenile for the purpose of inquiry under Section 15 of the Act does not show that the accused had any intended mind or physical capacity to commit the crime and understand the consequences of his act. As the mental and physical

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capacity have not been fairly determined, therefore, the orders are not sustainable.

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The provisions of Section 15 of the Act are as below:

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"(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:

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Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

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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.

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(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):

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Provided that the order of the Board to dispose of the matter shall be appealable under subsection (2) of section 101:

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Provided further that the assessment under this section shall be completed within the period specified in section 14."

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In support of the arguments, put-forth by the revisionist, the judgment of the Apex Court in Barun Chandra Thakur vs Master Bholu and Another in Criminal Appeal No. 950 of 2022 decided on 13.07.2022 has been referred to.

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I went through the above judgment.

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The Apex Court in Para-62 observed that it was obligatory on the part of the Board to conduct preliminary assessment on four counts, as mentioned under Section 15 of the Act, however, there being no guidelines as to how the Board shall conduct such assessment, therefore, it has to largely depend upon its own wisdom. Thereafter, the Apex Court noticed the provisions of Rule 10A of the Juvenile Justice Rules Model Rules, 2016in Para-64 of the judgment observing that the Board is empowered to take the assistance of psychologist/psychiatrist and other experts who had experience of working with the children under difficult circumstances. The Apex Court did not

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agree with the opinion that the mental capacity and ability to understand the consequences of the offences were one and the same. The Apex Court said that it shall include not only immediate consequences but also the far reaching consequences. While dealing with the phrase "the ability to understand the consequences of the offence", the Apex Court observed in Para-68 that the consequences of the offence could be numerous and manifold which cannot be just linked to a framework; and for this purpose, the overall picture as also future consequences with reference to the facts of the case are required to be constantly analysed by the Board.

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The Apex Court observed as below in Para nos. 75 and 79 of the judgment:-

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“75. It is to be noted that child psychology is a specialised branch of development psychology, its genesis is based on the premise that children and adults have a different thought process. The individualised assessment of adolescent mental capacity and ability to understand the consequences of the offence is one of the most crucial determinants of the preliminary assessment mandated by section 15 of the Act, 2015. The report of the preliminary assessment decides the germane question of transferring the case of a child between 16 to 18 years of age to the Children’s Court. This evaluation of ‘mental capacity and ability to understand the consequences’ of the child in conflict with law can, in no way, be relegated to the status of a perfunctory and a routine task. The process of taking a decision on which the fate of the child in conflict with law precariously rests, should not be taken without conducting a meticulous psychological evaluation.

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Therefore, looking to the purpose of the Act, 2015 and its legislative intent, particularly to ensure the protection of best interest of the child, the expression “may” in the proviso to Section 15(1) thereof and the requirement of taking assistance of experienced psychologists or psychosocial workers or other experts would operate as mandatory unless the Board itself comprises of at least one member who is a practicing professional with a degree in child psychology or child psychiatry. Moreover, in case the Board, in view of its own composition with at least one member, who is a practicing professional with a degree in child psychology or child psychiatry, chooses not to take such assistance, it would record specific reasons therefore.”

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On perusal of the impugned orders, it is revealed that an application was moved by the juvenile requesting the Juvenile Justice Board to get himself examined by a psychologist/psychiatrist, however, it appears that this specific request was not accepted. I perused the impugned order passed

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by Juvenile Justice Board. It appears that though, the Juvenile Justice Board put some questions with the objective of assessing his mental capacity and the capacity to understand the consequences of the act, however, it is not clear that any of the members of the Board was a professional in child psychology. I also went through the order of appellate Court. The appellate Court was aware of the fact that such an application was moved and aware of the fact that the same has been dismissed. The appellate Court concurred with the conclusion drawn by the Juvenile Justice Board regarding physical, mental capacity and the ability to understand the consequences of his act, as expressed by the Juvenile Justice Board. The appellate Court did not assess the facts and circumstances coming before it on its own and has simply gone with the view of the Juvenile Justice Board.

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It does not appear from the material on record that the opinion of professional experts on two counts i.e., the mental capacity to commit the crime and ability to understand the consequences of the act have been elicited at any stage. As held by the Apex Court, opinion of a child psychologist or other professional dealing in child psychology or child psychiatry is mandatorily to be taken unless the Board comprises any such member, hence, it can safely be said that the impugned orders have been passed not strictly in accordance with law. The matter of preliminary assessment requires reconsideration for which it shall be appropriate that the matter be remanded to the Board to decide it afresh in the light of the observations of the Apex Court.

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The impugned orders dated 23.12.2021 and 11.08.2021, are therefore hereby set aside. The matter of preliminary assessment is remanded to the Juvenile Justice Board. As the incident pertains to May 2018, hence, the Juvenile Justice Board is directed to conduct the proceedings of preliminary assessment expeditiously and preferably within a month of receipt of this order.

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Accordingly, this revision is disposed of .

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The order of this Court be certified to the Juvenile Justice Board concerned immediately.

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The Registry is directed to circulate the order of the Apex Court passed in Barun Chandra Thakur vs Master Bholu and Another in Criminal Appeal No. 950 of 2022 decided on 13.07.2022, for compliance.

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Order Date :- 2.11.2022 Vik/-

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Note- Copy of the order be sent to concerned Section of the Registry for immediate compliance of direction given in Para-1 of the order.

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Digitally signed by VIKRAM GUPTA Date: 2022.11.02 15:14:23 IST Reason: Location: High Court of Judicature at Allahabad

Minor 'X' v. State of U.P. and Another

Case brief

What is this about?

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Minor 'X' v. State of U.P. and Another

Case brief

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