BARUN CHANDRA THAKUR versus MASTER BHOLU & ANR.
[2022] 10 S.C.R. 595, Supreme Court of India, 2022
Outcome: Dismissed (Dismissed)
Segment: Ratio
[2022] 10 S.C.R. 595
595
BARUN CHANDRA THAKUR
v.
MASTER BHOLU & ANR.
(Criminal Appeal No. 950 of 2022)
JULY 13, 2022
[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]
Juvenile Justice (Care and Protection of Children) Act, 2015
– s.15 – Proviso to s. 15(1) – Directory or Mandatory – Held: Well
settled principle of interpretation that the word ‘may’ when used in
a legislation by itself does not connote a directory meaning – If in a
particular case, in interest of equity and justice it appears to the
court that the intent of the legislature is to convey a statutory duty,
then the use of the word “may” will not prevent the Court from
giving it a mandatory colour – 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
s.15(1) thereof and the requirement of taking assistance of
experienced psychologists or psycho-social 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 therefor.
Juvenile Justice (Care and Protection of Children) Act, 2015
– s.15 – Preliminary assessment under –
Language used in s.15 is
“the ability to understand the consequences of the offence” – The
expression used is in plurality i.e., “consequences” of the offence
and, therefore, would not just be confined to the immediate
consequence of the offence – Consequences could be in material /
physical form but also affecting the mind and the psychology of the
child for all times to come – 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 s.15 – The report of the preliminary
assessment decides the germane question of transferring the case
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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.
Juvenile Justice (Care and Protection of Children) Act, 2015
– Social Investigation Report (SIR) – Relevance – Held: Preparation
of SIR is a statutory requirement for every child in conflict with law,
which is to be prepared by the Probation Officer or any other agency
as may be directed by the Juvenile Justice Board – The object of
getting an SIR prepared is to obtain as much as possible information
about the background of the child – SIR is a relevant material to be
considered by the Board to take a decision while passing any orders
regarding bail or after inquiry or preliminary assessment.
Juvenile Justice (Care and Protection of Children) Act, 2015
– Juvenile Justice (Care and Protection of Children) Model Rules,
2016 – Timeline provided for the inquiry, submission of Social
Investigation Report (SIR), preliminary assessment and investigation
under the Act, 2015 and the Model Rules – Object and Rationale –
Held: The timeline given under the various provisions, has a
rationale
– The SIR to be submitted within fifteen days would
facilitate the Board in taking a decision on the request for bail at
the earliest – The period of one month given under r.10(5) is to
facilitate the Board to take a decision may be on a pending bail
matter or for preliminary assessment for which three months’ time is
provided – The completion of inquiry within four months or any
extended period is to ensure that a child is not subjected to
unnecessary long and lengthy processes of trials and inquiries and
that the matter is taken to its logical conclusion at the earliest.
Juvenile Justice (Care and Protection of Children) Act 2015
– s.15 – Task of preliminary assessment u/s.15 is a delicate task
with requirement of expertise and has its own implications as regards
trial of the case – Appropriate and specific guidelines in this regard
– Central Government and the National Commission for Protection
of Child Rights and the State Commission for Protection of Child
Rights to consider issuing guidelines or directions which may assist
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and facilitate the Juvenile Justice Board in making preliminary
assessment u/s.15.
Dismissing the appeals, the Court
HELD: 1. The consequences of being tried as an adult are
serious in nature and have a lasting effect for the entire life of the
child. It is well settled that any order that has serious civil
consequences, reasonable opportunity must be afforded. The
question is of what would be a reasonable opportunity in a case
where a preliminary assessment is to be made by the Juvenile
Justice Board under Section 15 the Juvenile Justice (Care and
Protection of Children) Act, 2015. [Para 46][639-G]
2. A perusal of the psychologist’s report clearly mentions
that it was only for the purpose of assessing the mental capacity
of the child. The report did not mention anything about the child’s
knowledge of the consequences of committing the alleged
offence, nor did it mention about the circumstances leading to
the alleged offence. No such assessment was carried out as,
apparently the Board only required the opinion on the mental
capacity of the child. [Para 49][640-F-G]
3. Maintaining confidentiality has a different purpose but
in no case can it be said that to maintain confidentiality, the
relevant material would not be provided to the child or his
guardian or parents. It would be in complete contravention of
the settled principles of criminal jurisprudence. Concept of
confidentiality used in section 99 of the Act, 2015 is to prevent
the reports from coming
in public domain or shared in public. Its
availability will be confined to the parties to the proceedings and
the parties should also refrain from sharing it with third parties.
Section 99(2) begins with the non obstante clause and proceeds
to direct that the victim should not be denied access to the case
report, orders and relevant papers. Once the legislature’s
intention is to provide material to the victim there could never
be an intention in the name of confidentiality to deny such access
to the records to the child or his parents or guardians. The Board
and the Children’s Court committed an illegality in not providing
the documents as demanded by misinterpreting section 99 of the
Act, 2015. [Para 52][641-D-F]
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
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4. In the present case, despite request of the respondent
to defer the preliminary assessment till such time as the material
under rule 10(5) of the Juvenile Justice (Care and Protection of
Children) Model Rules, 2016 was provided, was rejected by the
Board on 13.12.2017 and the Board proceeded to make an order
of preliminary assessment within a week thereafter on 20.12.2017.
The child had been taken into custody and was produced before
the Board for the first time on 08.11.2017. The three months’
period for preliminary assessment would have continued till
07.02.2018. The Board could have, rather ought to have, waited
for the report and material under rule 10(5) of the Model Rules.
Similarly, once the report of the psychologist suggested that if
further examination is required then the respondent ought to
have been referred to a specialised institute in Rohtak but this
suggestion was also not accepted by the Board without cogent
reason. [Para 61][644-E-F]
5. This Court is in agreement with the reasoning given by
the High Court that further assessment ought to have been
carried out once the psychologist had recommended so and had
also suggested the name of the institute. The Board and the
Children’s Court apparently were of the view that the mental
capacity and the ability to understand the consequences of the
offence were one and the same, that is to say that if the child had
the mental capacity to commit the
offence, then he automatically
had the capacity to understand the consequences of the offence.
This is a grave error committed by them. The language used in
section 15 is “the ability to understand the consequences of the
offence”. The expression used is in plurality i.e., “consequences”
of the offence and, therefore, would not just be confined to the
immediate consequence of the offence or that the occurrence of
the offence would only have its consequence upon the victim but
it would also take within its ambit the consequences which may
fall upon not only the victim as a result of the assault, but also on
the family of the victim, on the child, his family, and that too not
only immediate consequences but also the far-reaching
consequences in future. [Paras 67 and 68][646-F-H; 647-A-B]
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6.1. The power to make the preliminary assessment is
vested in the Juvenile Justice Board and also the Children’s
Court under sections 15 and 19 respectively of the Juvenile
Justice (Care and Protection of Children) Act, 2015. The
Children’s Court, on its own, upon a matter being referred to
under section 18(3), would still examine whether the child is to
be tried as an adult or not, and if it would come to the conclusion
that the child was not to be tried as an adult then it would itself
conduct an inquiry as a Board and pass appropriate orders under
section 18. Thus, the power to carry out the preliminary
assessment rests with the Board and the Children’s Court. This
Court cannot delve upon the exercise of preliminary assessment.
This Court will only examine as to whether the preliminary
assessment has been carried out as required under law or not.
Even the High Court, exercising revisionary power under section
102, would test the decision of the Board or the Children’s Court
with respect to its legality or propriety only. In the present case,
the High Court has, after considering limited material on record,
arrived at a conclusion that the matter required reconsideration
and for which, it has remanded the matter to the Board with further
directions to take additional evidence and also to afford adequate
opportunity to the child before taking a fresh decision. [Para
81][657-C-F]
6.2. In arriving at the conclusion, the High Court firstly
held that there
was denial of adequate opportunity to the
respondent. The list of documents, copies of the documents,
copies of the statement, the SIR not being provided to the
respondent, was in clear violation of rule 10(5) of the Model Rules.
[Para 82][657-G]
6.3. Despite specific request for cross-examining the
experts who had given the report, the same was not provided to
the respondent. The tests conducted by the expert psychologists
were not applicable or could not have been applied to a child
above the age of 15 years. It could have been applied only for
children below the age of up to 15 years in one test and up to 11.5
years in the other test. The psychologist had suggested for further
assessment by a superior facility, which was not accepted by the
Board without cogent reason. [Para 83][657-H; 658-A]
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
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6.4. The mental age as per the applicable formula based on
the IQ of the child would be less than 16 years. The Board,
provided only 30 minutes time to the child, his lawyer, his father
and also to the counsel for CBI to peruse the 35 pages of the
report, which was too little to peruse and comprehend and give
any evidence in rebuttal. The CBI counsel had admitted that it
did not have officers or the required infrastructure to conduct
the investigation under the Act, 2015. For all the above reasons,
the High Court remitted the matter to the Board after setting
aside both the orders of the Board and the Children’s Court to
consider afresh and assess the intelligence, maturity, physical
fitness and as to how the child in conflict with law was in a position
to know the consequences of the offence. The exercise was to
be undertaken within a period of six weeks. The High Court
further directed that while conducting the preliminary assessment
afresh, opinion of the psychologist of the Government Hospital
(Institute of Mental Health, University of Health Sciences,
Rohtak) be obtained. This Court may not agree with the reasoning
given by the High Court on all counts and also the direction given
for conducting further tests. However, this Court agrees with
the ultimate result of the High Court in remanding the matter for
a fresh consideration after rectifying the errors on lack of
adequate opportunity. [Para 84][658-B-E]
6.5.
The High court taking into consideration all these
aspects set aside the order of the Board, and remanded the matter
and also directed for getting further examination of the child, and
this exercise was to be undertaken within 6 weeks. Today, after
3½ years, one is not in a position to give an opinion as to whether
any further test can be carried out at this stage as the age of the
child is now more than 21 years. However, it is left to the
discretion of the Board or the psychologist who may be consulted
as to whether any fresh examination would be of any relevance/
assistance or not. The Act, 2015 or the Model Rules do not lay
down any guidelines or framework to facilitate the Board in
making a proper preliminary assessment on the relevant aspects.
The only liberty given to the Board is to obtain assistance of an
experienced psychologist or a psycho-social worker or other
expert. In the present case, the only assistance taken is to get
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the mental IQ of the child. Beyond that, regarding the ability to
understand the consequences and also the circumstances in which
the alleged offence was committed, no report was called for from
any psychologist. [Para 85][658-F-H; 659-A-B]
6.6. The task of preliminary assessment under section 15
of the Act, 2015 is a delicate task with requirement of expertise
and has its own implications as regards trial of the case. In this
view of the matter, it appears expedient that appropriate and
specific guidelines in this regard are put in place. It is open for
the Central Government and the National Commission for
Protection of Child Rights and the State Commission for
Protection of Child Rights to consider issuing guidelines or
directions in this regard which may assist and facilitate the Board
in making the preliminary assessment under section 15 of the
Act, 2015. [Para 87][659-C-D]
Bachahan Devi v. Nagar Nigam, Gorakhpur (2008) 12
SCC 372 : [2008] 2 SCR 424 and Dhampur Sugar Mills
Ltd. v. State of U.P. (2007) 8 SCC 338 : [2007] 10
SCR 245 – relied on.
Kishan Paswan v. UOI Civil Misc. W.P. No. 5044 of
2020; Mukarrab v. State of UP (2017) 2 SCC 210 :
[2016] 8 SCR 557; Controller of Defense Accounts
(Pension) and ors. v. S. Balachandran Nair (2005) 13
SCC 128 : [2005] 4 Suppl. SCR 431; Amit Kapoor v.
Ramesh Chander & Anr (2012) 9 SCC 469; Rajendra
Rajoriya v. Jagat Narain Thapak and Anr (2018) 17
SCC 234; Jabar Singh v. Dinesh (2010) 3 SCC 757 :
[2010] 3 SCR
353; Chandavarkar Sita Ratna Rao v.
Ashalata S. Guram (1986) 4 SCC 447 : [1986] 3 SCR
866; Madanlal Fakirchand Dudheya v. S. Changdeo
Sugar Mills 1962 AIR 1543 : [1962] Suppl. SCR 973;
Chinnamar Kathiam v. Ayyavoo AIR 1982 SC 137 :
[1982] 2 SCR 146; Jyoti Prakash Rai @ Jyoti Prakash
v. State of Bihar (2008) 15 SCC 223 : [2008] 3
SCR 818; Balkaram v. State of Uttarakhand & Ors.
(2017) 7 SCC 668 : [2017] 5 SCR 367; Shilpa Mittal
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
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v. State of NCT & Another [2020] 2 SCR 478; G.
Sundarrajan v. Union of India & Ors. (2013) 6 SCC
620 : [2013] 8 SCR 631; Shilpa Mittal v. State of NCT
& Another Crl. Appeal No. 34 of 2020 : [2020] 2
SCR 478; Bachahan Devi & Anr. v. Nagar Nigam
Gorakhpur (2008) 12 SCC 372 : [2008] 2 SCR 424;
Ankush Shivaji Gaikwad v. State of Maharashtra (2013)
6 SCC 770 : [2013] 8 SCR 863; State of Bank of
Travancore v. Mohammed Mohammed Khan (1981) 4
SCC 82 : [1982] 1 SCR 338; Som Prakash Rekhi v.
Union of India (1981) 1 SCC 449 : [1981] 2 SCR 111;
Pratap Singh v. State of Jharkhand (2005) 3 SCC
551;[2005] 1 SCR 1019; Salil Bali v. Union of India &
Another (2013) 7SCC 705 : [2013] 13 SCR 1020;
Province of Bombay v. Kusaldas S. Advani [1950] SCR
621; State of Andhra Pradesh v. A.P. Wakf Board 2022
SCC Online SC 159; Superintendent & Remembrancer
of legal affairs West Bengal v. Satyen Bhowmik (1981)
2 SCC 109 : [1981] 2 SCR 661; Nitya Dharamananda
v. Gopal Sheelum Reddy (2018) 2 SCC 93 : [2017] 12
SCR 118; In re: Criminal Trials Guidelines regarding
inadequacies and Deficiencies v. State of Andhra
Pradesh and ors. (2021) 10 SCC 598 : [2011] 2
SCR 1087; Union of India v. IND-Swift Laboratories
Limited (2011) 4 SCC 635 : [2011] 2 SCR 1087;
Mahabir Singh v. State of Haryana (2001) 7 SCC 148
: [2001] 1 Suppl. SCR 37; Opto Circuit India Ltd. v.
Axis Bank (2021) 6 SCC 707; Aloke Nath Dutta & Ors.
v. State of Bengal (2007) 12 SCC 230 :
[2006] 10 Suppl.
SCR 662; Sharat Babu Diguamarti v. NCT of Delhi
(2017) 2 SCC 18 : [2016] 8 SCR 1015; Philips India
Ltd. v. Labour Court (1985) 3 SCC 103 : [1985] 3
SCR 491; Municipal Corporation of Delhi v. Girdharilal
Sapru (1981) 2 SCC 758; Ramgopal Ganpatrai Ruia v.
State of Bombay [1958] SCR 618; Krishnan v.
Krishnaveni (1997) 4SCC 241 : [1997] 1 SCR 511;
Rajeshwar Singh v. Subrata Roy Sahara (2013) 14 SCC
257; Ashok Kumar Gupta v State of U.P. 1994 Supp (1)
SCC 145; Union Carbide Corp. v. Union of India (1991)
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4 SCC 584 : [1991] 1 Suppl. SCR 251; M. Siddiq
(Dead) 
Through Legal Representative 
(Ram
Janmabhumi Temple Case) v. Mahant Suresh Das & Ors.
(2020) 1 SCC 1 : [2019] 18 SCR 1 – referred to.
Kent v. United States (383, US, 541, 1966); Nazir Ahmad
v. King Emperor 1936 ILR 372; The King v. Saw Min
1938 SCC Online Rang 68; Emperor v. N.G. Chatterji
ILR 1946 ALL – referred to.
Case Law Reference
[2016] 8 SCR 557 
referred to
Para 42 (x) (b)
[2005] 4 Suppl. SCR 431 
referred to
Para 42 (x) (c)
(2012) 9 SCC 469
referred to
Para 42 (x) (d)
(2018) 17 SCC 234
referred to
Para 42 (x) (e)
[2010] 3 SCR 353
referred to
Para 42 (x) (f)
[1986] 3 SCR 866
referred to
Para 42 (x) (g)
[1962] Suppl. SCR 973
referred to
Para 42 (x) (h) 
[1982] 2 SCR 146
referred to
Para 42 (x) (i)
[2008] 3 SCR 818 
referred to
Para 42 (x) (j)
[2017] 5 SCR 367
referred to
Para 43 (xiv) (a)
[2020] 2 SCR 478
referred to
Para 43 (xiv) (b)
[2013] 8 SCR 631
referred to
Para 43 (xiv) (c)
[2020] 2 SCR 478
referred to
Para 44 (xviii) (a)
[2008] 2 SCR 424 
referred to
Para 44 (xviii) (b)
[2013] 8 SCR 863
referred to
Para 44 (xviii) (c)
[1982] 1 SCR 338 
referred to
Para 44 (xviii) (d)
[1981] 2 SCR 111
referred to
Para 44 (xviii) (e)
[2005] 1 SCR 1019 
referred to
Para 44 (xviii) (f)
[2013] 13 SCR 1020 
referred to
Para 44 (xviii) (g)
[1950] SCR 621
referred to
Para 44 (xviii) (h)
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[1981] 2 SCR 661 
referred to
Para 44 (xviii) (j)
[2017] 12 SCR 118
referred to
Para 44 (xviii) (k)
[2011] 2 SCR 1087 
referred to
Para 44 (xviii) (l)
[2011] 2 SCR 1087
referred to
Para 44 (xviii) (m)
[2001] 1 Suppl. SCR 37
referred to
Para 44 (xviii) (p)
(2021) 6 SCC 707
referred to
Para 44 (xviii) (q)
[2006] 10 Suppl. SCR 662
referred to
Para 44 (xviii) (r)
[2016] 8 SCR 1015
referred to
Para 44 (xviii) (s)
[1985] 3 SCR 491 
referred to
Para 44 (xviii) (t)
(1981) 2 SCC 758
referred to
Para 44 (xviii) (u)
[1958] SCR 618
referred to
Para 44 (xviii) (v)
[1997] 1 SCR 511
referred to
Para 44 (xviii) (x)
(2013) 14 SCC 257
referred to
Para 44 (xviii) (y)
1994 Supp (1) SCC 145
referred to
Para 44 (xviii) (z)
[1991] 1 Suppl. SCR 251
referred to
Para 44 (xviii) (aa)
[2019] 18 SCR 1
referred to
Para 44 (xviii) (bb)
[2008] 2 SCR 424
relied on
Para 77
[2007] 10 SCR 245
relied on
Para 78
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
950 of 2022.
From the Judgment and Order dated 11.10.2018 of the High Court
of Judicature for the States of Punjab and Haryana at Chandigarh in
CRR No. 2366 of 2018.
With
Criminal Appeal No. 951 of 2022.
Vikramjeet Banerjee, ASG, Sidharth Luthra, Sr. Adv., Sushil K.
Tekriwal, Dr. Mamta Tekriwal, Venkateswara Rao Anumolu, Ms. Supriya
Juneja, Aditya Singla, Ms. Shubhangni Jain, Pankaj Singhal, Ms. Cheshta
Jetley, Ms. A. Sahitya Veena, Yash Giri, Sachin Sharma, Ms. Rukhmini
Bobde, Ms. Swati
Ghildiyal, Om Prakash Shukla, Sughosh Subramanyam,
Arvind Kumar Sharma Advs. for the appearing parties.
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The Judgment of the Court was delivered by
VIKRAM NATH, J.
 Delay condoned.
2. Leave granted.
3. This Court is called upon to examine the proceedings arising
out of preliminary assessment made under section 15 of the Juvenile
Justice (Care and Protection of Children) Act, 20151. In consonance
with the provisions of section 74 of the Act, 2015 following the orders
passed by the Courts below, we have used the name ‘Bholu’ for the
accused and ‘Prince’ for the victim.
4. These two appeals, one filed by the complainant and other by
the CBI, question the correctness of the judgment and order dated
11.10.2018 passed by learned single Judge of Punjab and Haryana High
Court at Chandigarh in Criminal Revision No.2366 of 2018, titled Bholu
versus CBI, whereby the revision was allowed; the order dated
20.12.2017 passed by the Juvenile Justice Board2, Gurugram and the
order dated 21.05.2018 passed by the Additional Sessions Judge/
Children’s Court were set aside and the matter was remanded to the
Board for fresh consideration within a period of six weeks from the date
of receipt of certified copy of the order. Certain other directions were
also issued. The operative portion of the order dated 11.10.2018 is
reproduced below: -
“…In view of the facts and law position as discussed above, the
present petition is allowed and impugned order dated 20.12.2017
passed by the Juvenile Justice Board, Gurugram and order dated
21.05.2018 passed by the Additional Sessions Judge,
Gurugram
are set aside. The case is remanded back to the Board for afresh
consideration after assessing the intelligency, maturity, physical
fitness as to how the juvenile in conflict with law was in a position
to know the consequences of the offence. The necessary exercise
be done within a period of six weeks from the date of receipt of
certified copy of the order. It is also relevant to mention here that
while conducting preliminary assessment, the opinion of
psychologist of the Government hospital be obtained.”
1 The Act, 2015.
2 ‘Board’ for short
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5. Facts relevant for the adjudication of the present appeals are
as follows:
(i)
An unfortunate incident took place on 08.09.2017 in an
institution in Gurugram where a Class II student (Prince)
was found in the toilet with his throat slit in an unconscious
state at about 08.30 am. He was rushed to the hospital but
was declared brought dead. Initially the State Police on
suspicion arrested three persons, a driver of the school
vehicle and two officials of the school, but later on they
were released on bail.
(ii)
In the meantime, the State transferred the investigation to
Central Bureau of Investigation3. The CBI, during its
investigation, interrogated a Class XI student (Bholu) from
the same institution on two-three occasions, thereafter
arrested him on 07.11.2017 (respondent-1, in both the
appeals)4.
(iii)
From the material collected, it was found that the date of
birth of respondent was 03.04.2001. As the date of the
incident was 08.09.2017, he was aged 16 years 05 months
and 05 days as on the relevant date. There is no dispute
about the date of birth of the respondent.
6. As required by section 10 of the Act, 2015, the respondent was
produced before the Board by the CBI on 08.11.2017. The Board directed
for placing the child in a safety home. The parents of the respondent
were informed. Under section 13 of the Act, the Social Investigation
Report5 was prepared by the Legal Probation Officer and submitted on
27.11.2017 in the prescribed Form No. 6.
7. Section 15 of the Act, 2015 mandates that where a child in
conflict with law has committed a heinous offence and is above the age
of 16 years, the Board would make a preliminary assessment and pass
appropriate orders in accordance with the provisions of sub-section (3)
of section 18 of the Act, 2015.
3 “CBI” for short
4 “the respondent” for short
5 Referred to as “SIR”.
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8. In the present case, both the conditions required under section
15 of the Act, 2015 were fulfilled as such the Board undertook the
exercise of making the preliminary assessment. In that process, the Board
called for a report from the expert psychologist, also interacted with the
respondent, considered the SIR as also other material placed before it
and proceeded to pass an order on 20.12.2017 holding that there was
need of trial of respondent as an adult and accordingly, directed for
transfer of papers to the Children’s Court.
9. Against the order dated 20.12.2017, the respondent preferred
an appeal before the Children’s Court under section 101 of the Act,
2015. The Children’s Court, vide judgment and order dated 21.05.2018,
upheld the decision of the Board and dismissed the appeal.
10. Aggrieved by the judgment of the Children’s Court, the
respondent preferred a Criminal Revision under section 102 of the Act,
2015, before the High Court. The learned single Judge vide judgment
and order dated 11.10.2018 allowed the Revision, set aside the orders
passed by the Board as also the Children’s Court and remanded the
matter to the Board for a fresh consideration. It is this order of remand
passed by the High Court, correctness of which has been assailed in the
present two appeals by the CBI and also the complainant.
11. The judgment of the High Court is dated 11.10.2018 and as
per its direction, Board was to decide the matter afresh within six weeks.
Assailing the order of the High Court, two special leave petitions were
filed before this Court. One by the complainant registered as SLP (Crl.)
No. 10123 of 2018 and the other by the CBI registered as SLP (Diary
No. 25451 of 2019). This Court while issuing notice in the first special
leave petition filed by the complainant Barun Chandra Thakur, also passed
an order of status quo on 19.11.2018. The special leave petition filed by
the CBI was clubbed/tagged with the special leave petition of the
complainant. These matters have remained pending for over 3 ½ years.
From the record we do not find any effort on part of the parties for early
hearing or disposal of the two petitions for over 3 years. It was only in
January, 2022 that the counsel for the respondent requested that the
matter may be taken up for hearing as the respondent is in custody for
more than three years and very soon, he will be completing 21 years of
age. The matters were taken up on a number of occasions and the
arguments of both sides were heard at length.
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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12. We have heard Shri Vikramjit Banerjee, learned Additional
Solicitor General for the CBI-appellant, Shri Sushil Tekriwal, learned
counsel for the complainant-appellant and Shri Sidharth Luthra, learned
senior counsel for the respondent and perused the material on record.
13. Before proceeding to deal with the submissions advanced, it
would be appropriate to briefly refer to the statutory provisions, the
scheme of the Act, 2015 and the necessity requiring a preliminary
assessment under section 15 of the Act, 2015. Before coming of the
Act, 2015, the Juvenile Justice (Care and Protection of Children) Act,
20006 was in force. Under the said enactment, all children below 18
years of age were to be treated as juveniles and tried as such by the
Board. It was only after the coming of the Act, 2015, that a further
category was carved out of juveniles between 16 to 18 years involved in
heinous offences. They were subjected to a preliminary assessment to
ascertain whether they are to be tried as a child by the Board or to be
tried as an adult by the Children’s Court. However, for those above the
age of 16 years and below 18 years, if the Board was of the opinion that
the said Juvenile should not be tried as an adult, the Board would continue
with the trial as envisaged under the Act, 2015.
14. The Act, 2000 and the Act, 2015 were enacted with the
following preamble:
“An Act to consolidate and amend the law relating to
children
alleged and found to be in conflict with law and children in need
of care and protection by catering to their basic needs through
proper care, protection, development, treatment, social re-
integration, by adopting a child-friendly approach in the adjudication
and disposal of matters in the best interest of children and for
their rehabilitation through processes provided, and institutions and
bodies established, hereinunder and for matters connected
therewith or incidental thereto…”
Relevant provisions of Act, 2015
15. Chapter I consists of sections 1 and 2 (which is the definition
compendium). Section 2(9) defines the “best interest of the child”; section
2(12) defines a “child” to mean a person who has not completed 18
years of age; section 2(13) defines a “child in conflict with law”; ‘Child
6 Hereinafter referred to as ‘Act, 2000’
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friendly’ is defined under section 2(15); the ‘Children’s Court’ is defined
under section 2(20); ‘Heinous Offences’ is defined under section 2(33)
to include offences for which the minimum punishment is imprisonment
for seven years or more.
16. Chapter II consists of section 3 which provides for the general
principles of care and protection of children to be followed in the
administration of the Act. According to it, the Central Government, the
State Government, the Board and other agencies as the case may be,
while implementing the provisions of the Act shall be guided by the
fundamental principles enumerated in clauses (i) to (xvi). It would be
worthwhile to refer to some of the principles; clause (i) Principle of
presumption of innocence: any child shall be presumed to be an
innocent of any mala fide or criminal intent; clause (iii) Principle of
Participation: every child will have a right to be heard and to participate
in all processes and decisions affecting his interest; clause (iv) Principle
of best interest: primary consideration in all decisions regarding the
child shall be in his best interest; clause (ix) Principle of non-waiver of
rights: it does not permit waiver of any of the right of the child and even
non-exercise of a fundamental right would not amount to waiver; clause
(xvi) Principles of natural justice: standards of fairness shall be
adhered to including the right to fair hearing, rule against bias and right
to review by all persons or
bodies, acting in a judicial capacity under this
Act. 
17. Chapter III consisting of sections 4 to 9 deals with the
constitution of the Board, the procedure in relation to the Board, powers,
functions and responsibilities of the Board. Sub-section (1) of section 4
provides for establishment of a Board in every district which could be
more than one, to exercise powers and discharge functions relating to
children in conflict with law under the Act. Sub-section (2) of section 4
defines the constitution of the Board. Sub-section (3) provides for the
eligibility of the social workers to be appointed to the Board. Sub-sections
(4), (5), (6) and (7) further provide eligibility for selection, disqualification,
term and training as a member of the Board. Section 5 provides that if
during the course of any inquiry by the Board, the child completes the
age of eighteen years then the Board will continue with the inquiry to
pass final orders as if such person has continued to be a child. Section 6
provides that any person who has completed eighteen years of age and
is apprehended for committing an offence when he was below the age
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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of eighteen years, then, subject to the provisions of this section, he would
be treated as a child during the process of the inquiry. Section 7 provides
for sittings of the Board for transacting its businesses. It also refers to
the coram of the Board. Section 8 defines the powers, functions and
responsibilities of the Board. Section 9 provides for the procedure to be
followed by a Magistrate, who has not been empowered to exercise the
powers of Board under the Act, when he is of the opinion that any
alleged offender brought before him is a child. In that case, the Magistrate
would immediately record his opinion and forward the child along with
the record of proceedings to the Board having jurisdiction.
18. Chapter IV comprising of sections 10 to 26 deals with the
procedure in relation to children in conflict with law. Sections 10 and 11
provide for the apprehension of a child in conflict with law and as to how
he should be dealt with. Section 12 deals with bail to a person who is
apparently a child alleged to be in conflict with law. Section 13 provides
that the parents, guardians to be informed forthwith. Section 14 requires
the Board to hold an inquiry regarding a child in conflict with law, such
inquiry to be conducted and appropriate orders passed under sections 17
and 18 of the Act, 2015.
19. Section 15 provides for preliminary assessment where the
alleged offence is heinous and where the child has completed or
is above
the age of 16 years, the Board is required to conduct the 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 after
such assessment, pass an order in accordance with sub-section (3) of
section 18. If the Board is of the opinion that the child needs to be tried
as an adult then the case be transferred to the Children’s Court having
jurisdiction to try such offence. Otherwise, the Board itself will proceed
to try the matter as a summons case under the Code of Criminal
Procedure, 1973.7
20. Section 16 confers power on the Chief Judicial Magistrate or
the Chief Metropolitan Magistrate to review the pendency of cases before
the Board once in three months and may issue necessary directions in
that regard depending upon the pendency. 
7 For short, ‘Cr.P.C.
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21. Section 17 requires the Board to pass appropriate orders where
after inquiry, the Board is satisfied that the child has not committed any
offence. The Board may also pass appropriate orders where the child is
in need of care and protection and refer him to the Child Welfare
Committee.
22. Section 18 requires the Board to pass appropriate orders where
the child is found to be in conflict with law. Different categories are
provided and various powers are conferred on the Board to take care of
such children who are below the age of sixteen years and have committed
heinous offence and for children up to the age of eighteen years who
have committed petty offence or a serious offence. Sub-section (1) of
section 18 and its various clauses from (a) to (g) confer a variety of
powers on the Board for issuing necessary directions. Sub-section (2)
gives additional power to the Board providing for education, training,
counselling, de-addiction programmes and even restricting the movement
of the child, in his interest. Sub-section (3) provides that the Board if
after the preliminary assessment under Section 15 passes an order that
there is a need for trial of the child as an adult, then the Board may order
transfer of the trial of such a case to the Children’s Court having
jurisdiction. 
23. Section 19 deals with the powers conferred on the Children’s
Court. The Children’s Court upon receipt of the preliminary assessment
from the Board will decide whether there is
need for trial of a child as an
adult in accordance with the Cr.P.C. and pass appropriate orders after
trial subject to the provisions of this section as also section 21. However,
if the Children’s Court feels that there is no need for trial of child as an
adult, then, it may conduct an inquiry as a Board and pass appropriate
orders in accordance with provisions of Section 18. Sub-section (2) of
section 19 provides that the Children’s Court will ensure that the final
order with regard to a child in conflict with law will include an individual
care plan for rehabilitation of the child including other directions. Under
sub-section (3), the Children’s Court will ensure that a child in conflict
with law remains in a place of safety till he attains the age of 21 years
and thereafter is transferred to jail. Proviso to sub-section (3) ensures
that reformative services including education, skill development,
counselling, behaviour modification therapy and psychiatric support are
provided during the period the child is in a place of safety. Under sub-
section (4), the Children’s Court is to ensure that there is a periodic
follow up report annually either by the Probation Officer or the District
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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Child Protection Unit or the Social Worker for evaluation of the progress
of the child and also to ensure that there is no ill treatment to the child in
any form. 
24. Section 20(1) deals with the powers of the Children’s Court
with respect to the progress and evaluation of the child even after he
attains the age of 21 years and has not completed the term of stay.
Under sub-section (2) of section 20, the Children’s Court after completing
the procedure provided under sub-section (1) may pass an order either
to release the child on such conditions for the remainder of the prescribed
term of stay and or pass an order that the child will complete the remainder
of his term in jail. 
25. Section 21 prohibits the sentencing of a child in conflict with
law to death or life imprisonment without the possibility of release. 
26. Under section 22 of the Act, it is mandated that Chapter VIII
of Cr.P.C., and any preventive detention law would not be applied against
any child. 
27. Under section 23, there is a bar that a child in conflict with
law would not be tried with the person who is not a child.
28. Under section 24, a protection is provided that a child in conflict
with law will not suffer any disqualification under any such law on account
of offence being established against him. However, this protection will
not be available to the child who has completed or is above the age of 16
years and is found to be in conflict with
law by the Children’s Court
under Section 19(1)(i). Sub-section (2) of section 24 provides for
destruction of records under different situations. 
29. Section 25 provides that all pending proceedings before any
Board or Court on the date of commencement of this Act would continue
in the same Board or Court as if this Act had not been enacted. 
30. Section 26 makes provisions with respect to run away children
in conflict with law. The above takes care of the various provisions
contained in Chapter IV dealing with the procedure in relation to children
in conflict with law. 
31. Under the Juvenile Justice (Care and Protection of Children)
Model Rules, 20168, it is only rule 10(A) which refers to preliminary
8 Hereinafter referred to as the “Model Rules”
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assessment into heinous offences by the Board. Sub-rule (1) mentions
that the first thing to be determined by the Board is the age of the child
as to whether he is below or above the age of 16 years which is to be
done as per section 14 of the Act. Sub-rule (2) mentions that the Board
may take assistance of the experienced psychologists or psycho-social
workers or other experts who have experience of working with children
in difficult circumstances. It also provides that the District Child
Protection Unit would have a panel of such experts to be made available
to the Board for its assistance or otherwise the Board could access such
experts independently. Sub-rule (3) declares that the child shall be
presumed to be innocent unless proved otherwise while making the
preliminary assessment. Sub-rule (4) provides for the consequential order
to be passed by the Board where it holds that the trial of the child is to be
carried out as an adult for which, it is required to assign reasons and
further to provide copy of order to the child forthwith.
32. We are not quoting all the provisions referred to above but
only the provisions which are relevant, that are sections 4, 14, 15, 18 and
19 of the Act, 2015, as also rule 10A of the Model Rules. The same are
reproduced below:
“Section 4: Juvenile Justice Board
(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, the State Government shall, constitute for every
district, one or more Juvenile
Justice Boards for exercising the
powers and discharging its functions relating to children in conflict
with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial
Magistrate of First Class not being Chief Metropolitan Magistrate
or Chief Judicial Magistrate (hereinafter referred to as Principal
Magistrate) with at least three years experience and two social
workers selected in such manner as may be prescribed, of whom
at least one shall be a woman, forming a Bench and every such
Bench shall have the powers conferred by the Code of Criminal
Procedure, 1973 on a Metropolitan Magistrate or, as the case
may be, a Judicial Magistrate of First Class.
(3) No social worker shall be appointed as a member of the Board
unless such person has been actively involved in health, education,
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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or welfare activities pertaining to children for atleast seven years
or a practicing professional with a degree in child psychology,
psychiatry, sociology or law.
(4) No person shall be eligible for selection as a member of the
Board, if he –– (i) has any past record of violation of human
rights or child rights; (ii) has been convicted of an offence involving
moral turpitude, and such conviction has not been reversed or has
not been granted full pardon in respect of such offence; (iii) has
been removed or dismissed from service of the Central
Government or a State Government or an undertaking or
corporation owned or controlled by the Central Government or a
State Government; (iv) has ever indulged in child abuse or
employment of child labour or any other violation of human rights
or immoral act.
(5) The State Government shall ensure that induction training and
sensitisation of all members including Principal Magistrate of the
Board on care, protection, rehabilitation, legal provisions and justice
for children, as may be prescribed, is provided within a period of
sixty days from the date of appointment.
(6) The term of office of the members of the Board and the manner
in which such member may resign shall be such, as may be
prescribed.
(7) The appointment of any member of the Board, except the
Principal Magistrate, may be terminated after holding an inquiry
by the State Government, if he ––
(i) has been found guilty
of misuse of power vested under this
Act; or
(ii) fails to attend the proceedings of the Board consecutively
for three months without any valid reason; or
(iii) fails to attend less than three-fourths of the sittings in a
year; or
(iv) becomes ineligible under sub-section (4) during his term
as a member.
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Section 14. Inquiry by Board regarding child in conflict with
law.
(1) Where a child alleged to be in conflict with law is produced
before Board, the Board shall hold an inquiry in accordance with
the provisions of this Act and may pass such orders in relation to
such child as it deems fit under sections 17 and 18 of this Act.
(2) The inquiry under this section shall be completed within a
period of four months from the date of first production of the child
before the Board, unless the period is extended, for a maximum
period of two more months by the Board, having regard to the
circumstances of the case and after recording the reasons in writing
for such extension.
(3) A preliminary assessment in case of heinous offences under
section 15 shall be disposed of by the Board within a period of
three months from the date of first production of the child before
the Board.
(4) If inquiry by the Board under sub-section (2) for petty offences
remains inconclusive even after the extended period, the
proceedings shall stand terminated:
Provided that for serious or heinous offences, in case the Board
requires further extension of time for completion of inquiry, the
same shall be granted by the Chief Judicial Magistrate or, as the
case may be, the Chief Metropolitan Magistrate, for reasons to
be recorded in writing.
(5) The Board shall take the following steps to ensure fair and
speedy inquiry, namely:
(a) at the time of initiating the inquiry, the Board shall satisfy
itself that the child in conflict with law has not been subjected to
any ill-treatment by the police or by any other person, including a
lawyer or probation officer and take corrective steps in case of
such ill-treatment;
(b) in all cases under the Act, the proceedings shall be conducted
in simple manner as possible and care shall be taken to ensure
that the child, against whom the proceedings have been instituted,
is given child-friendly atmosphere during the proceedings;
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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(c) every child brought before the Board shall be given the
opportunity of being heard and participate in the inquiry;
(d) cases of petty offences, shall be disposed of by the Board
through summary proceedings, as per the procedure prescribed
under the Code of Criminal Procedure, 1973;
(e) inquiry of serious offences shall be disposed of by the Board,
by following the procedure, for trial in summons cases under the
Code of Criminal Procedure, 1973;
(f) inquiry of heinous offences -
(i) for child below the age of sixteen years as on the date of
commission of an offence shall be disposed of by the Board
under clause (e);
(ii) for child above the age of sixteen years as on the date of
commission of an offence shall be dealt with in the manner
prescribed under 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:
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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.
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Section 18: Orders regarding child found to be in conflict
with law.
(1) Where a Board is satisfied on inquiry that a child irrespective
of age has committed a petty offence, or a serious offence, or a
child below the age of sixteen years has committed a heinous
offence, then, notwithstanding anything contrary contained in any
other law for the time being in force, and based on the nature of
offence, specific need for supervision or intervention,
circumstances as brought out in the social investigation report
and past conduct of the child, the Board may, if it so thinks fit,—
(a) allow the child to go home after advice or admonition by
following appropriate inquiry and counselling to such child and to
his parents or the guardian;
(b) direct the child to participate in group counselling and similar
activities;
(c) order the child to perform community service under the
supervision of an organisation or institution, or a specified person,
persons or group of persons identified by the Board;
(d) order the child or parents or the guardian of the child to pay
fine: Provided that, in case the child is working, it may be ensured
that the provisions of any labour law for the time being in force
are not violated;
(e)
direct the child to be released on probation of good conduct
and placed under the care of any parent, guardian or fit person,
on such parent, guardian or fit person executing a bond, with or
without surety, as the Board may require, for the good behaviour
and child’s well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct
and placed under the care and supervision of any fit facility for
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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ensuring the good behaviour and child’s well-being for any period
not exceeding three years;
(g) direct the child to be sent to a special home, for such period,
not exceeding three years, as it thinks fit, for providing reformative
services including education, skill development, counselling,
behaviour modification therapy, and psychiatric support during the
period of stay in the special home:
Provided that if the conduct and behaviour of the child has
been such that, it would not be in the child’s interest, or in the
interest of other children housed in a special home, the Board
may send such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-section
(1), the Board may, in addition pass orders to—
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at
a specified place; or
(v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section
15 pass an order that there is a need for trial of the said child as
an adult, then the Board may order transfer of the trial of the case
to the Children’s Court having jurisdiction to try such offences.
Section 19:Powers of Children’s Court.
(1) After the receipt of preliminary assessment from the Board
under section 15, the Children´s Court may decide that—
(i) there is a need for trial of the
child as an adult as per the
provisions of the Code of Criminal Procedure, 1973 and pass
appropriate orders after trial subject to the provisions of this
section and section 21, considering the special needs of the
child, the tenets of fair trial and maintaining a child friendly
atmosphere;
(ii) there is no need for trial of the child as an adult and may
conduct an inquiry as a Board and pass appropriate orders in
accordance with the provisions of section 18.
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(2) The Children’s Court shall ensure that the final order, with
regard to a child in conflict with law, shall include an individual
care plan for the rehabilitation of child, including follow up by the
probation officer or the District Child Protection Unit or a social
worker.
(3) The Children’s Court shall ensure that the child who is found
to be in conflict with law is sent to a place of safety till he attains
the age of twenty-one years and thereafter, the person shall be
transferred to a jail:
Provided that the reformative services including educational
services, skill development, alternative therapy such as counselling,
behaviour modification therapy, and psychiatric support shall be
provided to the child during the period of his stay in the place of
safety.
(4) The Children’s Court shall ensure that there is a periodic follow
up report every year by the probation officer or the District Child
Protection Unit or a social worker, as required, to evaluate the
progress of the child in the place of safety and to ensure that
there is no ill-treatment to the child in any form.
(5) The reports under sub-section (4) shall be forwarded to the
Children´s Court for record and follow up, as may be required.
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Rule 10A. Preliminary assessment into heinous offences
by Board -
(1) The Board shall in the first instance determine whether the
child is of sixteen years of age or above; if not, it shall proceed as
per provisions of section 14 of the Act.
(2)
For the purpose of conducting a preliminary assessment in
case of heinous offences, the Board may take the assistance of
psychologists or psycho-social workers or other experts who have
experience of working with children in difficult circumstances. A
panel of such experts may be made available by the District Child
Protection Unit, whose assistance can be taken by the Board or
could be accessed independently.
(3) While making the preliminary assessment, the child shall be
presumed to be innocent unless proved otherwise.
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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(4) Where the Board, after preliminary assessment under section
15 of the Act, passes an order that there is a need for trial of the
said child as an adult, it shall assign reasons for the same and the
copy of the order shall be provided to the child forthwith.”
PROCEEDINGS BEFORE THE BOARD
33. In the present case, it is the preliminary assessment made by
the Board under section 15 of the Act, 2015, that the respondent be tried
as an adult, is under consideration.
34. The Board on record had the SIR submitted by the Probation
Officer in the prescribed format. It had also interacted with the respondent
on two occasions, firstly, when he was produced after being apprehended
before the Board and secondly, at the time when it was conducting
preliminary assessment and allowed the respondent to address the Board.
The Board on 22.11.2017 had also called for report from one expert
psychologist.
35. On behalf of the respondent, applications were filed before
the Board, to comply with the provision of section 74 of the Act, 2015;
another application was filed to provide the copy of the SIR, a copy of
the psychologist report and to lead evidence in rebuttal; and a third
application was filed praying for deferment of the preliminary assessment
till such time the investigating agency submits its report under rule 10(5)
of the Model Rules. The Board vide order dated 13.12.2017 passed
separate orders on these applications. Firstly,
it allowed the application
under section 74 to protect the identity of the child. Secondly, it rejected
the other two applications. In so far as the application for providing
documents was concerned, the Board observed that access to the same
would be given during the time of hearing for 30 minutes. The third
application for deferment of the proceedings was rejected simpliciter.
The Board thereafter proceeded to pass the order of preliminary
assessment on 20.12.2017.
36. Before the Board, the counsel for the respondent had raised
the following arguments:
(i)
The intent of legislature was never to send all Juveniles
above the age of 16 years involved in heinous offences to
be tried as adults.
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(ii)
The Investigating agency had not completed the
investigation and no interim report or final report had been
placed before the Board.
(iii)
There was no compliance of rule 10(5) of the Model Rules,
as such the Board could not proceed with the preliminary
assessment under section 15 as it would be incapacitated
to make an assessment.
(iv)
Due and adequate opportunity was not provided as copies
of the SIR and reports of the expert psychologists were not
supplied to the respondent or his guardian or counsel.
(v)
There was no previous history or criminal antecedents of
the respondent. There was no report of any previous violence
by the respondent.
(vi)
Even the reports of the experts were not complete and the
recommendation given for further assessment by superior
organization was not resorted to by the Board.
(vii)
The expert reports were not conclusive.
(viii) The SIR reflected that the respondent had good behavior
with friends, teachers and neighbors.
(ix)
Lastly, it was argued that the theory propounded by the
CBI that the crime was committed to get the examinations
postponed could not have been a probable reason.
37. The Board considered all the submissions and after discussing
all the four aspects of section 15 regarding mental capacity and physical
capacity to commit the offence, ability to understand the consequences
of the offence and the circumstances under which allegedly the offence
was committed, came to the conclusion that respondent should
be tried
as an adult and, accordingly, passed an order under section 18(3).
Relevant portion of the Juvenile Justice Board’s order dated 20.12.2017
is reproduced below:
“13. It is alleged that on dated 08.09.2017, Juvenile in conflict
with law Bholu in the area of P.S. Bhondsi committed the Murder
of Master Prince in the premises of Ryan International School,
Bhondsi. On the day of commission of alleged Act age of Juvenile
in conflict with law was above 16 years. It is relevant to mention
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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here that for the purpose of preliminary assessment of Juvenile
and to find out what is the physical and mental capacity of juvenile,
ability to understand the consequences of offence by juvenile and
the circumstances in which he committed the alleged offence, the
juvenile has been heard personally by the board on 22.11.2017
and various questions have been put to him in order to assess his
capacity to commit and understand the consequences of the acts
which culminated in to registration of present F.I.R. against and
juvenile in conflict with law Bholu gave answer to all questions
very confidently. This board can well recall the time when juvenile
in conflict with law produced before it during personal hearing of
juvenile in conflict with law, he fairly explained the circumstances
in which he committed the acts resulted in to present inquiry along
with the manner of commission thereof and now during the time
of recording his statement for preliminary assessment when
juvenile in conflict with law narrated a different story excluding
his role in the alleged incident well indicates that juvenile in conflict
with law also knows to cook up a story in order to save himself
which in turn goes to show that he has adequate mental capacity.
***
16. Over all conclusion of Social Investigation report of Juvenile
in conflict with law shows that he is below average student in
studies but good in music especially in piano. He is
aggressive in
nature and also shouted over other students. He used to consume
liquor and also used mobile phone in school premises. He is very
short tempered, restless boy and also lacks stability. Just after
alleged incident he appeared in exam but was upset and not writing
anything in exam and on asking by teacher Deepshikha he disclosed
to her that he saw a child was fallen and blood was coming from
his body and due to that reason he was upset. Juvenile also remain
upset due to quarrel between his parents.
17. As per section 15 of the act in order to preliminary assessment
of juvenile in conflict with law the board can take the assistance
of any psychologist or any other expert. This board was of the
opinion that in this matter there is need of assistance of a
psychologist for the preliminary assessment of juvenile in conflict
with law so report of psychologist also sought in this matter. Dr.
Joginder Kairo Clinical Psychologist, P.G.I.M.S., Rohtak in his
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report conducted two tests on juvenile in conflict with law to
prepare his report. After both tests he give his finding that IQ of
juvenile in conflict with law noted to be 95 in the category of
average intellectual functioning. I.Q-95 showing average
intelligence. This report also shows that it is suggested by the
expert that if require further assessment the juvenile in conflict
with law may be sent to Institute of Mental Health, University of
Health Sciences, Rohtak. This boards feels it not necessary to
sent the juvenile to Institute of Mental Health, University of Health
Sciences, Rohtak for any further assessment because from the
report of psychologist it is clear that I.Q. level of juvenile in conflict
with law is average.
18. After having considered all the record and having heard both
the sides and the juvenile personally, this board is of the considered
opinion that juvenile in conflict with law Bholu had sufficient mental
and physical capacity to commit the offence alleged against him
and also he had the adequate ability to understand the consequences
of the acts committed by him.
19. Bholu is well built boy and is studied in 11th class. Juvenile
himself stated before this board that he is physically and mentally
fit and not suffering from any kind of disease. His I.Q. level
shows that he is mentally fit so it can not be said that he did
not know the consequences of acts alleged to be committed
by him. During the personal hearing, juvenile
admitted that he
confessed before this board but same was under pressure of CBI.
During his statement he was asked a specific question that he
requested from this board that he wants to reside with CBI but he
answered that he requested as CBI asked him to do so. It is not
possible that CBI tortured him, beaten him but despite that he
requested to stay with CBI just on their asking. He also stated
that he knew very well that present case registered upon him
regarding the murder of a child, he do not knew this name despite
the fact that child also learn music with him. He also stated that
he was the witness of this incident as he saw Prince first in injured
condition. From the statement of juvenile recorded during
his personal assessment, it indicates that he is mature
enough and all these facts satisfied this board to conclude
that juvenile Bholu was having sufficient maturity and ability
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
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to understand the consequences of action on the day of
alleged occurrence.
20. In view of the above discussion, this board of the considered
opinion that there is a need of trial of juvenile in conflict with law
Bholu as an adult. Consequently, in view of Section 18(3) of
Juvenile Justice (Care & Protection of Children) Act, 2015 the
case stands transferred to the Ld. Special Children’s Court,
Gurugram. Case file be put up before Ld. District & Sessions
Judge, Gurugram with a request to transfer the same to Ld.
Children Court having jurisdiction to try the matter. Juvenile in
conflict with law Bholu Singh… Raghav is also directed to produce
before the Ld. District & Sessions Judge, Gurugram on 22.12.2017.
File complete in all respect be sent to the court of Ld. District &
Sessions Judge, Gurugram well in time.
(emphasis supplied)”
38. In appeal, on behalf of the respondent, similar arguments were
raised before the Children’s Court which also dealt with the same in
detail and approved the decision taken by the Board. Relevant portion of
Children’s Court’s order dated 21.05.2018 is reproduced below:
“17…………So impugned order cannot be said as having been
passed without any application of mind and contrary to the statutory
provisions. The statement of the ‘JCL’ before the Board recorded
for the purposes of preliminary assessment, the Expert Reports,
the sequence of the occurrence running narrated by the
investigating
agency all are well reflecting the mental and physical
capacity of the ‘JCL’ and the circumstances in which he allegedly
committed the murder of ‘Prince’ and his ability to understand the
consequences of said offence and these all are straightaway
running against the appellant.
18. It is not out of place to mention here that an order qua need
for trial of child as an adult required to be passed by the Board as
per provisions contained under Section 18(3) of the Act after
making a preliminary assessment in case of heinous offences is
only on the basis of satisfaction of the Board by exercising its
judicious acumen for which calling of expert opinion is also left at
his discretion. By adding explanation to Section 15(1) it is clarified
that preliminary assessment is not a trial. No right to second appeal
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is provided under the Act against such an order. It all indicated
that intention of legislation is to recognize the wisdom of the Board
regarding forum of trial of a child falling in the age of 16-18 years
running charged with heinous offence. If there is no blatant misuse
of said authority and no irregularity going to the depth of the matter
the discretion exercised by the Board is required to be honoured.
19. Before concluding, this court would also like to comment
regarding statutory provisions contained under Sections 3(x) &
99 of the Act as learned defence counsel have argued at length
for said provision. As per clause (I) of Section 99, all reports
related to child and considered by the Committee or the Board
shall be treated as confidential. The proviso attached to this clause
prescribes that Committee or the Board, as the case may be,
may, if it so thinks fit, communicate the substance thereof to
another Committee, or Board or to the child or to the child’s parent
or guardian, and may give such Committee or the Board or the
child or parent or guardian, an opportunity of producing evidence
as may be relevant to the matter stated in the report. Clause (II)
of Section 99 then prescribes that notwithstanding anything
contained in this Act, the victim shall not be denied access to their
case record, orders and relevant papers. Learned defence counsel
has gone making much stress over the clause(II) and has gone
asserting that since victim shall not be
denied access to the case
record and relevant papers as Section 3(x) while prescribing
general principles to be followed in administration of Act recognizes
the principle of equality and postulates that there shall be no
discrimination against a child on any grounds including sex, caste
and equality of access, opportunity and treatment, so child/’JCL’
should also be given a right of access to the confidential reports
also at par with the victim which Juvenile Justice Board has denied
to the appellant. This court finds no discrimination with the child/
’JCL’ by the provisions of Section 99. Once Section 99 declares
all reports to be treated as confidential, then they are confidential
for both the parties and even victim would not be having a right to
obtain the certified copy of such a report in the name that victim
shall not be denied access to the case record, orders and relevant
papers. The access to the victim to confidential reports is not
permitted in very words while granting him access to all other
relevant papers and the case record under clause (II) of Section
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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99, so clause (I) of Section 99 will prevail which restricts said
access to all and sundry. Since in the present matter no copy of
confidential report has ever been supplied to victim, so it does lie
in the mouth of appellant/’JCL’ that he is being discriminated so
far the right to access to confidential reports is concerned.
20. In view of the above discussions, the impugned order show
that the Juvenile Justice Board has considered the correctness,
legality and propriety of the matter and did not act with any
irregularity at the time giving findings of fact relating to appellant.
There is no illegality, perversity or infirmity in the impugned order.
The appeal lacks merits and is liable to be dismissed. The appeal
is, accordingly, dismissed. Papers be tagged with the main case
file of the trial titled as “State Vs. Bholu” running fixed for
04.07.2018 for hearing the parties on the aspect of charge.”
39. The order of the Children’s Court dated 21.05.2018 was
challenged by way of criminal revision before the High Court. The High
Court allowed the criminal revision and after setting aside both the
impugned orders passed by the Additional Sessions Judge as also the
Board, remanded the matter to the Board for fresh consideration after
assessing the intelligence, maturity and physical fitness as to how the
child in conflict with law was in a position to know the consequences. It
also provided that the necessary exercise
be taken within a period of six
weeks and further that while conducting the preliminary assessment the
certificate of the psychologist of the Government hospital be obtained.
40. What weighed before the High Court was:
(i)
There was violation of principles of natural justice and fair
play as adequate opportunity was not provided;
(ii)
Copies of documents relied upon by the Board were not
provided to the respondent;
(iii)
The reports of the experts were incomplete;
(iv)
The recommendation by the expert to refer the child to
higher organization for assessment was not acted upon by
the Board;
(v)
The two tests conducted by the experts were apparently
not relevant and related to children of different ages;
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(vi)
That the Board and the Children’s Court had no material
before them to assess as to how the respondent knew the
consequences of the offence and also the circumstances in
which he allegedly committed the offence; and
(vii)
The findings by the Board and the Children’s Court were
without any material and reasoning.
41. Relevant extracts from the judgment of the High Court are as
under:
“…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 5-11½ and 5-15
has been taken as the basis for the determination of the mental
capacity of a child of 16½ 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
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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 so
called 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….
xxxx
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.
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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.
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.
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.
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
vs Ramayan Singh 2002(2) RCR (Criminal) 813 and Rajinder Singh
vs Vishal Dingra 2015(8) RCR (Criminal) 453.
In view of the facts and law position as discussed above, the
present petition is allowed and impugned order dated 20.12.2017
passed by the Juvenile Justice Board, Gurugram and order dated
21.05.2018 passed by the Additional Sessions Judge, Gurugram
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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are set aside. The case is remanded back to the Board for afresh
consideration after assessing the intelligency, maturity, physical
fitness as to how the juvenile in conflict with law was in a position
to know the consequences of the offence. The necessary exercise
be done within a period of six weeks from the date of receipt of
certified copy of the order. It is also relevant to mention here that
while conducting preliminary assessment, the opinion of
psychologist of the Government hospital be obtained.”
ARGUMENTS ON BEHALF OF COMPLAINANT-
APPELLANT:
42. The arguments of Mr. Sushil Tekriwal, learned counsel on
behalf of the complainant-appellant are summarised below:
(i)
‘Best interest of child’ or ‘presumption of innocence’ etc.
does not mean immunity from criminal charges. Intent of
the act is to reform the child in conflict with law and also to
subject them to penal consequences.
(ii)
Children aged 16-18, prosecuted for heinous crimes have
been assigned a separate class by legislature, therefore,
they may be denied the protective cover. The purpose of
this Act is not to give shelter to accused of heinous offences.
(iii)
The respondent fulfils all the conditions laid down under
section 15 of the Act, 2015 and the Board had rightly held
that he should be tried as an adult.
(iv)
Law is clear that the Board ‘may’ take help of experienced
psychologists, psycho-social workers or other experts. The
word ‘may’ has to be
read as ‘may’ only and the legislative
competency to make the enactment in question is not in
controversy. Even section 101(2) of the Act, 2015 uses the
word ‘may’ with respect to opinion of medical expert.
(v)
Findings of the Medical Board should have been left to
medical experts as Courts have no expertise in such matters.
The opinion of the Medical Board is final and cannot be
questioned before the Court.
(vi)
Social and medical report was provided to all the
stakeholders. However, the request for cross-examination
was declined on the ground that section 15 is only a
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preliminary assessment and not a trial. Further, according
to section 99 of the Act, 2015 all the reports related to the
child considered by the Board be treated as confidential.
(vii)
Revisional jurisdiction of the High Court under section 102
is limited with regard to the power to call for and examine
the records of an inferior Court in order to satisfy itself of
the legality and propriety of proceedings or orders made in
cases.
(viii) There is no illegality in concurrent findings of the two Courts
below. The High Court broadened its jurisdiction too far,
going into correctness of the medical board report and the
correctness of various other factual aspects.
(ix)
The issue of remanding the case for fresh consideration is
redundant now in terms of its impossibility of performance.
(x)
In support of the above submissions, Mr. Tekriwal has placed
reliance on the following judgments:
(a)
Kishan Paswan v. UOI (Civil Misc. W.P. No. 5044
of 2020){paras 28(97) and 35 (v)},
(b)
Mukarrab v. State of UP, (2017) 2 SCC 210 (para
27),
(c)
Controller of Defense Accounts (Pension) and ors.
v. S. Balachandran Nair (2005) 13 SCC 128,
(d)
Amit Kapoor v. Ramesh Chander & Anr (2012)
9 SCC 469 (paras 12 and 13),
(e)
Rajendra Rajoriya v. Jagat Narain Thapak and
Anr (2018) 17 SCC 234,
(f)
Jabar Singh v. Dinesh (2010) 3 SCC 757,
(g)
Chandavarkar Sita Ratna Rao v. Ashalata S.
Guram (1986) 4 SCC 447,
(h)
Madanlal Fakirchand Dudheya v. S. Changdeo
Sugar Mills, 1962 AIR 1543,
(i)
Chinnamar Kathiam v. Ayyavoo, AIR 1982 SC
137,
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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(j)
Jyoti Prakash Rai @ Jyoti Prakash v. State of
Bihar, (2008) 15 SCC 223 and
(k)
Kent v. United States (383, US, 541, 1966).
ARGUMENTS ON BEHALF OF CBI-APPELLANT:
43. The arguments of Shri Vikramjit Banerjee, learned Additional
Solicitor General on behalf of the CBI-appellant are summarised below:
(i)
The counsel for the CBI drew attention to the Statement of
Objects and Reasons of the Act, 2015, wherein the systems
under the Act, 2000 are deemed as ill-equipped to tackle
16-18 year old offenders, and an observation about a rapid
increase in heinous child offenders of the said age is also
elucidated upon.
(ii)
The counsel also highlighted the provisions under section
15 of the said Act which provide for preliminary assessment
on commission of heinous crimes by children above 16 years
to be conducted by the Board, which ‘may’ take the
assistance of experienced psychologists, psycho-social
workers, or other experts.
(iii)
It was also submitted that this preliminary assessment is
distinct from a trial.
(iv)
The counsel also referred to section 103 of the Act, 2015,
which lays down the requirement to follow as far as possible,
procedure laid down by the Cr.P.C., during Board inquiries
for trials of summons cases.
(v)
The counsel accentuated rules 10 and 10A of the Model
Rules. Rule 10A permits the Board to take assistance from
psychological experts and social workers while making the
preliminary assessment which has
been followed by the
Board.
(vi)
Rule 10(5) which mandates the Child Welfare Police Officer
to produce the statements of witnesses recorded by him
and other documents produced during the course of
investigation within a month from the date of the child’s
first production before the Board. Copies of the same to be
given to the child or his parent/guardian, were also brought
forth and highlighted.
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(vii)
There is no requirement under the Act, 2015 for the final
investigation to be completed before the preliminary
assessment takes place. Moreover, the Act, 2015
necessitates abidance by the Cr.P.C. to the maximum extent,
therefore, in line with the same, the accused cannot be
provided with the case diary during investigation. Reference
is also made to section 99 of the Act, 2015 regarding
confidentiality. Hence, the counsel contends that rule 10(5)
of the Model Rules must be read down. The High Court
committed an error in holding otherwise.
(viii) For the preliminary assessment, the Board must consider
the mental and physical capacity of the child to commit the
offence, and this assessment has to be completed within
three months of the child’s first production before the Board
after which, a re-assessment is impermissible.
(ix)
The judgement of the High Court was also attacked by
asserting that the requirement for cross-examination of the
psychologist, and supply of the expert’s reports to the
respondent or his guardians prior to the passing of the
preliminary assessment was erroneous.
(x)
The requirement to complete the investigation within a month
from the first date of production of the child before the
Board and to supply a copy of the final report to the child or
his parents, prior to the making of the preliminary assessment
was also called into doubt.
(xi)
The CBI attempted to prove its proper conduct by asserting
that Bholu was treated in a
child-friendly manner, and
examined in line with the Act, 2015 and was apprehended
in the presence of his father and other requisite authorities.
(xii)
The CBI claims that Bholu was interviewed in a cautious
and friendly manner, in the presence of the Probation and
Child Welfare Officer, along with independent witnesses.
Moreover, he voluntarily admitted his involvement in the
murder of Prince, and was sent to an Observation Home,
post his apprehension, instead of being held in a lock up.
(xiii) Since the CBI was not able to satisfactorily complete its
investigation, the Board granted three days of judicial custody
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of Bholu, wherein he was to be accompanied by a Board
member, and placed at Seva Kutir (Observation Home),
post his custody.
(xiv) In support of the above submissions, Mr. Vikramjit Bannerji
has placed reliance on the following judgments:
(a)
Balkaram v. State of Uttarakhand & Ors. (2017)
7SCC 668,
(b)
Shilpa Mittal v. State of NCT & Another, Crl.
Appeal No. 34 of 2020,
(c)
G. Sundarrajan v. Union of India & Ors. (2013)
6 SCC 620.
ARGUMENTS ON BEHALF OF RESPONDENT-
BHOLU:
44. The arguments of Mr. Siddharth Luthra, learned Senior
Advocate on behalf of the respondent are summarised below:
(i)
The essential modification in the Act, 2015 is the exception
created for the age of 16 to 18 years. In cases of heinous
offences, as defined under section 2(33) of the Act, 2015, a
child can be treated as an adult subject to the inquiry to be
carried out in terms of sections 14 and 15. This Court held
that, while interpreting the scheme of the Act, the interests
of children should be protected and to treat them as adults
is an exception to the rule.
(ii)
While conducting an inquiry under the Act, the Board has
to keep in mind the overall scheme of the Act.
(iii)
The Act, 2015 provides that the Investigating Officer must
be a trained Police Officer, capable of dealing with children
and designated as a Child Welfare Police Officer (CWPO).
However, in this case the IO was not a designated CWPO
under the Act. Section 107 further
requires the creation of
a special juvenile police unit to “exclusively deal with the
children” and with “aptitude, appropriate training and
orientation”.
(iv)
The child was kept in police lock-up and subsequently a
confession was extracted from him which was relied upon
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by the Board. The same is contrary to rule 8(3)(v) and to
the principle of presumption of innocence enshrined under
section 3(i) of the Act, 2015 read with rule 10 A (3) of the
Model Rules.
(v)
Due to the non-submission of documents to the child prior
to the hearing, sections 8(3)(a) and 8(3)(b), section 14(5)(c)
as well as section 3 of the Act, 2015 were violated.
Additionally, granting only 30 minutes was insufficient to
peruse and scan through the record.
(vi)
On the date of the psychological assessment, the respondent
was aged 16 years and 7 months. However, the tests
administered to him were appropriate for children upto 11
years (CPM) and 15 years (Malins). According to the
psychologist, Dr Kairo, the respondent was found to be
cooperative and communicative. On the basis of the tests
administered his IQ was noted to be 95, and it was further
noted “If required further assessment, he may be sent to
Institute of Mental Health, University of Health Sciences,
Rohtak.”
(vii)
The entitlement of respondent to access the records before
the preliminary assessment takes place, is challenged by
the appellants under section 99 of the Act, 2015. Section
14(5)(c) provides that every child brought before the Board
shall be heard and permitted to participate in the inquiry
and rule 10(5) states that a copy of the statement of witnesses
recorded by him shall also be given to the child or parent or
guardian of the child.
(viii) Reliance has been placed on the
statement of the Hon’ble
Minister for Women and Child Development in the Lok
Sabha during the discussion on the Juvenile Justice (Care
and Protection of Children) Bill, 2014 stating that the
assessment of the Board is not one-sided and the Board
will take due notice of the views of the child.
(ix)
With respect to the plea of CBI to read down rule 10(5) of
the Model Rules, the counsel submitted that reading down
the said rule was not raised before the High Court or this
Court before filing of the written submissions. Alternatively,
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
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a provision can be read down to save it from being declared
unconstitutional or illegal, which is not so in the present
case. There being no challenge towards constitutionality,
any attempt towards this would be in conflict with the objects
of the Act.
(x)
By using words such as “clever” and reading the alleged
confession against him being a complete violation of Article
20(3), the Board has clearly gone contrary to the principle
of presumption of innocence provided under section 3(i) of
the Act, 2015 read with rule 10A(3) Model Rules and section
3(viii) which mandates that there shall be no adversarial or
accusatory words used in involving a child.
(xi)
The Board failed to take into account the statement of the
respondent that CBI called him inside, beat him up and asked
him to speak and erroneously concluded that the respondent
had sufficient mental and physical capacity to commit the
offence.
(xii)
In the order dated 20.12.2017, the Board read the confession
of the respondent against him but later the Board stated
that at this stage it is not to be seen “whether juvenile in
conflict with law is guilty or not, he confessed or not, if
confessed then it was voluntary or under pressure.”
(xiii) The circumstances in which the child allegedly committed
the offence were not put before the Board nor was the
charge-sheet placed to enable it to form its opinion.
(xiv) The word “may’’ occurring in section 15 and section
101(2) has to be construed as “shall”.
(xv)
It is to be noted that neither the SIR nor the report of Dr.
Joginder Kairo indicate the mental age of the child. Dr.
Kairo had advised a further assessment but the same was
not done and the Board went ahead with determining the
age of the child.
(xvi) Section 102 of the Act allows for exercise of revisional
jurisdiction on the grounds of legality and propriety. The
High Court correctly noted the perversity in reasoning of
the Board and the Sessions Court, consequently it rightly
set aside the aforementioned orders.
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(xvii) Respondent continues to remain in the observation home
and has completed 4.5 years in custody. During his stay he
has interacted with people from all walks of life and was
accused of different heinous offences. It would not be
possible to assess his mental and physical capacity and
understanding at this stage. It would be in the interest of
justice that he may be treated as a child and not as an adult,
since he has lost his valuable right under sections 14 and 15
of the Act, 2015.
(xviii) In support of the above submissions, Mr. Luthra has placed
reliance on the following judgments: -
(a)
Shilpa Mittal v. State of NCT & Another, Crl.
Appeal No. 34 of 2020(paras 1, 30, 31 and 34),
(b)
Bachahan Devi & Anr. v. Nagar Nigam,
Gorakhpur, (2008) 12 SCC 372),
(c)
Ankush Shivaji Gaikwad v. State of Maharashtra
(2013) 6SCC 770 (paras 52 and 53),
(d)
State of Bank of Travancore v. Mohammed
Mohammed Khan (1981) 4 SCC 82 (paras 19 to
23)
(e)
Som Prakash Rekhi v. Union of India (1981) 1
SCC 449 (para 63)
(f)
Pratap Singh v. State of Jharkhand, (2005) 3 SCC
551 (Paras 7 and 10),
(g)
Salil Bali v. Union of India & Another, (2013)
7SCC 705 (paras 43 and 63),
(h)
Province of Bombay v. Kusaldas S. Advani, 1950
SCR 621 (para 16)
(i)
State of Andhra Pradesh v. A.P. Wakf Board, 2022
SCC Online SC159 (para 143),
(j)
Superintendent & Remembrancer of legal affairs
West Bengal v. Satyen Bhowmik, (1981) 2SCC
109 (paras 20 to 22),
(k)
Nitya Dharamananda v. Gopal Sheelum Reddy,
(2018) 2SCC 93 (paras 5 to 9),
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]

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(l)
In re: Criminal Trials Guidelines regarding
inadequacies and Deficiencies v. State of Andhra
Pradesh and ors. (2021) 10 SCC 598 (para 11),
(m)
Union of India v. IND-Swift Laboratories Limited
(2011) 4SCC 635,
(n)
Nazir Ahmad v. King Emperor 1936 ILR 372 (pg.
378 to 383)
(o)
The King v. Saw Min, 1938 SCC Online Rang 68
(pg. 1,10)
(p)
Mahabir Singh v. State of Haryana (2001) 7scc
148 (pg. 19,21,22)
(q)
Opto Circuit India Ltd. v. Axis Bank (2021) 6SCC
707 (para 14)
(r)
Aloke Nath Dutta & Ors. v. State of Bengal, (2007)
12 SCC 230 (para 104)
(s)
Sharat Babu Diguamarti v. NCT of Delhi, (2017)
2 SCC 18 (para 37),
(t)
Philips India Ltd. v. Labour Court (1985) 3SCC
103 (paras 15 to17)
(u)
Municipal Corporation of Delhi v. Girdharilal
Sapru, (1981) 2 SCC 758 (para 5)
(v)
Ramgopal Ganpatrai Ruia v. State of Bombay,
1958 SCR 618 (para 15)
(w)
Emperor v. N.G. Chatterji, ILR 1946 ALL 553
(paras 5 to 8, 10, 14),
(x)
Krishnan v. Krishnaveni (1997) 4SCC 241 (para
8)
(y)
Rajeshwar Singh v. Subrata Roy Sahara (2013)
14 SCC 257 (Para 26);
(z)
Ashok Kumar Gupta v State of U.P. 1994 Supp
(1) SCC 145 (Paras 58-60);
(aa) Union Carbide Corp. v. Union of India (1991) 4
SCC 584 (Para 83) and;
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(bb)
On molding of relief – M. Siddiq (Dead) Through
Legal Representative (Ram Janmabhumi Temple
Case) v. Mahant Suresh Das & Ors. (2020) 1 SCC
1 (Para 1024, 1026)
ANALYSIS:
EFFECT OF AN ORDER OF PRELIMINARY
ASSESSMENT
45. The order of preliminary assessment decides whether the child
in conflict with law, falling in the age bracket of 16-18 years and having
committed heinous offence, is to be tried as an adult by the Children’s
Court or by the Board itself, treating him to be a child. There are two
major consequences provided in the Act, 2015, if the child is tried as an
adult by the Children’s Court. First, that the sentence or the punishment
can go up to life imprisonment if the child is tried as an adult by the
Children’s Court, whereas if the child is tried by the Board as a child, the
maximum sentence that can be awarded is 3 years. The second major
consequence is that where the child is tried as a child by the Board, then
under section 24(1), he would not suffer any disqualification attached to
the conviction of an offence, whereas the said removal of disqualification
would not be available to a child who is tried as an adult by the Children’s
Court, as per the proviso to section 24(1). Another consequence, which
may also have serious repercussions, is that as per section 24(2), where
the Board or the Children’s Court, after the case is over, may direct the
police or the registry that relevant records of such conviction may be
destroyed after the
period of expiry of appeal or a reasonable period as
may be prescribed. Whereas, when a child is tried as an adult, the relevant
records shall be retained by the relevant Court, as per the proviso to
section 24(2).
46. These consequences are serious in nature and have a lasting
effect for the entire life of the child. It is well settled that any order that
has serious civil consequences, reasonable opportunity must be afforded.
The question is of what would be a reasonable opportunity in a case
where a preliminary assessment is to be made by the Board under section
15.
SOCIAL INVESTIGATION REPORT (SIR)
47. Preparation of SIR is a statutory requirement for every child
in conflict with law, which is to be prepared by the Probation Officer or
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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any other agency as may be directed by the Board. Its format is also
provided in Form 6 to the Model Rules. The object of getting an SIR
prepared is to obtain as much as possible information about the background
of the child. It has as many as 48 columns to be filled up and thereafter,
the Probation Officer is to submit his opinion also. In the present case,
the SIR was submitted by the Legal Probation Officer on 27.11.2017.
The SIR is a relevant material to be considered by the Board to take a
decision while passing any orders regarding bail or after inquiry or
preliminary assessment.
PSYCHOLOGIST’S REPORT
48. The report of the psychologist dated 05.12.2017 only spells
out the IQ of the child to be 95 and also that further assessment, if
required, could be made. The relevant extracts from the aforementioned
report are reproduced hereunder.
“xxx
xxx
xxx
For assessment of his mental capacity, assessment was
carried out.
Impression: IQ - 95, average intelligence.
xxx
xxx
xxx
If required further assessment, he may be sent to the
Institute of Mental Health, University of Health Sciences,
Rohtak.
xxx
xxx
xxx”
49. A perusal of the above report clearly mentions that it was only
for the purpose of assessing the mental capacity of the child. The report
did not mention anything about the child’s knowledge of the consequences
of committing the alleged offence, nor did it mention about the
circumstances leading to the alleged
offence. No such assessment was
carried out as, apparently the Board only required the opinion on the
mental capacity of the child.
NATURAL JUSTICE/REASONABLE OPPURTUNITY
50. The Board and the Children’s Court have relied upon section
99 of the Act, 2015 to hold that they were not required to provide the
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copies of the material on record available in the form of SIR, the report
of the psychologist, and other material. On the other hand, the High
Court relied upon rule 10(5) of the Model Rules to hold that the documents
ought to have been provided to the child or his guardian or his lawyer as
the case may be, and this having not been done, it was a case where
reasonable opportunity had been denied.
51. Section 99 provides that all reports relating to the child and
considered by the Committee or the Board are to be treated as
confidential. The proviso to section 99(1) gives the power to the
Committee or the Board to communicate the substance thereof to another
Committee or Board or the child, his parents or guardian, and may also
give such Committee or Board or the child or parent or guardian, an
opportunity to produce evidence as may be relevant to the matter stated
in the report. Section 99(2) states that the victim would not be denied
access to the case record, relevant documents and papers.
52. Maintaining confidentiality has a different purpose but in no
case can it be said that to maintain confidentiality, the relevant material
would not be provided to the child or his guardian or parents. It would be
in complete contravention of the settled principles of criminal
jurisprudence. Concept of confidentiality used in section 99 is to prevent
the reports from coming in public domain or shared in public. Its availability
will be confined to the parties to
the proceedings and the parties should
also refrain from sharing it with third parties. Section 99(2) begins with
the non obstante clause and proceeds to direct that the victim should
not be denied access to the case report, orders and relevant papers.
Once the legislature’s intention is to provide material to the victim there
could never be an intention in the name of confidentiality to deny such
access to the records to the child or his parents or guardians. The Board
and the Children’s Court committed an illegality in not providing the
documents as demanded by misinterpreting section 99 of the Act, 2015.
53. In the present case, the SIR and the report of the expert
psychologist was not provided to the respondent or his parents or
guardians. An application was filed on behalf of the respondent for
supplying such material which was denied by the Board by a detailed
order dated 13.12.2017. The Board only extended the liberty to the counsel
and the parent or the guardian to look into these reports for 30 minutes
before the hearing commenced.
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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54. It has been argued on behalf of the respondent that firstly,
these documents ought to have been provided to them; and secondly,
half an hour was too little a time to go through the contents of the
voluminous SIR (running into 35 pages) which contained several
statements; and thirdly, they had no opportunity to lead evidence in rebuttal
by way of cross-examination or submitting documents.
55. Another violation of principles of natural justice/opportunity
addressed on behalf of the respondent was on the report of the
psychologist, which only provided the IQ level of the child and nothing
more. An application was also filed on behalf of the respondent to lead
evidence in rebuttal to the report of the psychologist and to cross-examine
the psychologist as the tests applied by the psychologist in his report
were not the relevant tests for a child aged 16.5 years. The tests applied
were applicable to children up to the age of 15 years. This request made
on behalf of the respondent was also denied by the Board by a detailed
order dated 13.12.2017.
56. Another aspect urged on behalf of the respondent was to the
effect that the report of the psychologist suggested/recommended that
the child may be got examined further by the Institute of Mental Health,
University of Health Sciences, Rohtak. According to the learned counsel
for the respondent, the Board committed an error by not getting further
examination carried out by a
superior institution. Once the psychologist
carrying out the tests had given a report and he was himself not sure of
his own report and had suggested for assessment by a superior institution,
the Board ought to have obtained further report.
57. Yet another aspect which goes to violation of a fair opportunity
was, rejection of the application filed on behalf of the respondent before
the Board to defer the proceedings of preliminary assessment till such
time the compliance of rule 10(5) of the Model Rules is not made. The
material collected by the Child Welfare Police Officer in the form of
statement of witnesses and other documents during the course of
investigation which was to be made within a period of one month, ought
to have been awaited and a copy of the same should have been provided
to the respondent or his parents or guardian as this would be relevant for
preliminary assessment.
58. In view of the above, the argument of Mr. Vikramjit Banerjee,
learned counsel for CBI, on two counts needs to be rejected. Firstly, rule
10(5) of the Model rules should be read down as being in conflict with
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section 99 of the Act, 2015 and secondly, that no material collected during
investigation could be provided to the accused till such time the police
report under section 173(2) Cr.P.C. is filed and the cognizance is taken
by the Magistrate under section 190 and the stage of section 207/208
Cr.P.C. is reached. The Act, 2015, being a special Act, will have an
overriding effect over general procedure prescribed under the Cr.P.C..
The provisions of the Cr.P.C. would be applicable so long and so far as
they are not in conflict with the special provisions contained in the Act,
2015. 
TIMELINE
59. There is a timeline provided for the inquiry, submission of the
SIR, preliminary assessment and the investigation under the Act, 2015
and the Model Rules:
i.
The inquiry by the Board under section 14(1) is to be
completed within a period of four months from the date of
first production of the child before the Board, and it could
be extended by a period of two more months by the Board
for the reasons to be recorded as per section 14(2).
ii.
Section 14(3) provides that a preliminary assessment under
section 15 should be disposed of by the Board within a
period of three months from the date of first production of
the child before the Board.
iii.
Under section 14(4) it is provided that if the inquiry by the
Board under section 15 for petty offences remains
inconclusive even after the extended period, the proceedings
shall stand terminated.
iv.
Under the proviso to section
14(4) dealing with the serious
or heinous offences, in case the Board requires further
period of time for completion of inquiry, the same may be
granted by the Chief Judicial Magistrate or, as the case
may be, the Chief Metropolitan Magistrate, for reasons to
be recorded.
v.
Under section 8(3)(e), SIR is to be submitted by the
Probation Officer or the Child Welfare Officer or a social
worker within a period of fifteen days from the date of first
production of the child before the Board.
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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vi.
In rule 10(5) of the Model Rules, in case of heinous offences
committed by a child between the age of 16 to 18 years,
the Child Welfare Police Officer shall produce the statement
of witnesses recorded by him and other documents prepared
during the course of investigation within a period of one
month from the date of first production of the child before
the Board.
60. The timeline given under the various provisions as referred to
above, has a rationale. The SIR to be submitted within fifteen days would
facilitate the Board in taking a decision on the request for bail at the
earliest. The period of one month given under rule 10(5) is to facilitate
the Board to take a decision may be on a pending bail matter or for
preliminary assessment for which three months’ time is provided. The
completion of inquiry within four months or any extended period is to
ensure that a child is not subjected to unnecessary long and lengthy
processes of trials and inquiries and that the matter is taken to its logical
conclusion at the earliest.
61. In the present case, despite request of the respondent to defer
the preliminary assessment till such time as the material under rule 10(5)
was provided, was rejected by the Board on 13.12.2017 and the Board
proceeded to make an order of preliminary assessment within a week
thereafter on 20.12.2017. The child had been taken into custody and
was produced before the Board for the first time on
08.11.2017. The
three months’ period for preliminary assessment would have continued
till 07.02.2018. The Board could have, rather ought to have, waited for
the report and material under rule 10(5) of the Model Rules. Similarly,
once the report of the psychologist suggested that if further examination
is required then the respondent ought to have been referred to a
specialised institute in Rohtak but this suggestion was also not accepted
by the Board without cogent reason.
PRELIMINARY ASSESSMENT
62. The obligation of the Board in making the preliminary
assessment on the four counts mentioned in section 15 of the Act is
largely dependent upon the wisdom of the Board without there being
any guidelines as to how the Board would conduct such preliminary
assessment. In the absence of any such framework or guidelines, the
Board has to use its discretion in taking into consideration whatever
material it deems fit for assessing the four attributes.
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(a)
In the present case, the Board and the Children’s Court,
relying upon the statement given by the child at the time of
first appearance before the Board, the second statement
given by the child at a later stage, the SIR and the report of
the psychologist indicating an IQ level of 95, have held that
the respondent had the mental capacity to commit the
offence.
(b)
Insofar as the physical capacity is concerned, the Board
and the Children’s Court have taken into consideration the
built of the child and his age to hold that he had the physical
capacity to commit the nature of the alleged assault.
(c)
The Board relied upon the fact that the respondent was
studying in class 11th; he had stated that he is physically
and mentally fit and not suffering from any disease; his IQ
level shows that he is mentally fit and as such it cannot be
said that he did not know the consequences of the
alleged offence to be committed by him. From the
statement of the respondent recorded during his personal
assessment, it was indicated that he was mature enough.
All these facts satisfied the Board that the respondent
was having sufficient maturity and ability to understand
the consequences of his action.
(d)
The order of the Board does not anywhere refer to its
assessment regarding the circumstances in which the
respondent allegedly committed the offence. However, what
appears is that the Board relied upon the SIR.
63. In the present case, the Board and the Children’s Court
relied
heavily on the psychologist’s report which only reflected the IQ of the
respondent to be of average level bearing a score of 95 to hold that the
respondent had the mental capacity to commit the offence and also ability
to know the consequences of the offence. The Board and the Children’s
Court both have also recorded that the recommendation of the psychologist
to send the respondent for further assessment to the Institute of Mental
Health, University of Health Sciences, Rohtak was not necessary as,
according to them, the IQ findings were sufficient for them to arrive at
the preliminary assessment.
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]
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64. Section 15 and rule 10A provide that the Board may take the
assistance of psychologists, psycho-social workers, or other experts who
had experience of working with children in difficult circumstances.
According to the learned counsel for the appellants, the word ‘may’
should be read as ‘may’ only i.e., the Board in its discretion may or may
not take the assistance of such experts whereas on behalf of the
respondent, it has been strenuously contended that the word ‘may’ should
be read as ‘shall’ and it should be mandatory for the Board to take
opinion or assistance from such experts before passing an order of
preliminary assessment. This aspect is dealt with at a later stage.
65. While considering a child as an adult one needs to look at his/
her physical maturity, cognitive abilities, social and emotional
competencies. It must be mentioned here that from a neurobiological
perspective, the development of cognitive, behavioural attributes like the
ability to delay gratification, decision making, risk taking, impulsivity,
judgement, etc. continues until the early 20s. It is, therefore, all the more
important that such assessment is made to distinguish such attributes
between a child and an adult.
66. Cognitive maturation is highly dependent on hereditary factors.
Emotional development is less likely to affect cognitive maturation.
However, if emotions are too intense and the child is unable to regulate
emotions
effectively, then intellectual insight/knowledge may take a back
seat.
67. We are in agreement with the reasoning given by the High
Court that further assessment ought to have been carried out once the
psychologist had recommended so and had also suggested the name of
the institute. The Board and the Children’s Court apparently were of the
view that the mental capacity and the ability to understand the
consequences of the offence were one and the same, that is to say that
if the child had the mental capacity to commit the offence, then he
automatically had the capacity to understand the consequences of the
offence. This, in our considered opinion, is a grave error committed by
them.
68. The language used in section 15 is “the ability to understand
the consequences of the offence”. The expression used is in plurality
i.e., “consequences” of the offence and, therefore, would not just be
confined to the immediate consequence of the offence or that the
occurrence of the offence would only have its consequence upon the
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victim but it would also take within its ambit the consequences which
may fall upon not only the victim as a result of the assault, but also on the
family of the victim, on the child, his family, and that too not only immediate
consequences but also the far-reaching consequences in future.
Consequences could be in material/physical form but also affecting the
mind and the psychology of the child for all times to come. 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 consciously analysed by the Board.
69. Consequences for the victim could be his death, or permanent
physical disability, or an injury which could be repaired or recovered; the
impact of the offence on the mind of the victim may be prolonged and
continue for his lifetime; the impact on the family and friends of the
victim, both mental and financial; consequence on the child going into
incarceration; mental impact on the child, it could be repentance or
remorse for life, the social stigma cast on the child and his family
members; the consequences of litigating and so many other things which
would be difficult to adumbrate.
70. A child with average intelligence/IQ will have the intellectual
knowledge of the consequences of his actions. But whether or not he is
able to control himself or his actions will depend
on his level of emotional
competence. For example, risky driving may result in an accident. But if
emotional competence is not high, the urge for thrill seeking may get the
better of his intellectual understanding.
71. Children may be geared towards more instant gratification
and may not be able to deeply understand the long-term consequences
of their actions. They are also more likely to be influenced by emotion
rather than reason. Research shows that young people do know risks to
themselves. Despite this knowledge, adolescents engage in riskier
behaviour than adults (such as drug and alcohol use, unsafe sexual
activity, dangerous driving and/or delinquent behaviour). While they do
consider risks cognitively (by weighing up the potential risks and rewards
of a particular act), their decisions / actions may be more heavily
influenced by social (e.g. peer influences) and/or emotional (e.g.
impulsive) tendencies. In addition, the lack of experience coupled with
the child’s limited ability to deeply understand the long-term consequences
of their actions can lead to impulsive / reckless decision making.
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[VIKRAM NATH, J.]
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72. Coming to the last count, i.e., the assessment regarding the
circumstances in which the offence is alleged to be committed is again
an attribute which could have many factors to be considered before
such an assessment could be made. There could be a number of reasons
for a person to commit a crime. It could be enmity, it could be poverty, it
could be greed, it could be perversity in mind and many others. There
could be coercion. There could be threat to one’s life and property. There
could be allurement in terms of the material and physical gains. Crime
could be committed on account of stress or depression also. It could be
on account of the company that one keeps. One could commit crime in
order to help his family and friends. All these and many more could be
termed as circumstances leading to the commission of crime.
73. The preliminary assessment has been a question of debates,
analysis and research. The National Law University, Orissa, in
collaboration with UNICEF, made a detailed study on the practice of
preliminary assessment under the Act, 2015. To the said report is annexed
as Annexure 4, the Guidance Notes on Preliminary Assessment Reports
for Children in Conflict in Law developed by the Department of Child
and Adolescent Psychiatry, NIMHANS9, Bengaluru. It would be
worthwhile to mention here that NIMHANS, Bengaluru is one of the
premier institutions involved in the research and study of psychology,
and
is a world-renowned centre for mental health, neurosciences and
allied fields. The contents of the Guidance Notes referred to above are
reproduced below-
“Guidance Notes on
Preliminary Assessment Report for Children in Conflict with Law
Department of Child & Adolescent Psychiatry, NIMHANS,
Bengaluru
The preliminary assessment uses information from the detailed
psychosocial and mental health assessment (that is done first) and
presents that information as outlined below.
A. Mental & Physical Capacity to Commit Alleged Offence
The child’s ability to make social decisions and judgments
are compromised due to:
9 National Institute of Mental Health and Neurosciences.

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(i)
Life skills deficits (emotional dysregulation/ difficulty
coping with peer pressure/ assertiveness & negotiation
skills /problem-solving/ conflict-resolution/ decision-
making).
(ii)
Neglect / poor supervision by family/poor family role
models
(iii)
Experiences of abuse and trauma
(iv)
Substance abuse problems
(v)
Intellectual disability
(vi)
Mental health disorder/ developmental disability
(vii)
Treatment/ interventions provided so far
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B. Circumstances of Alleged Offence
(i)
Family history and relationships (child’s living
arrangements, parental relationships, child’s emotional
relationship & attachment to parents, illness &
alcoholism in the family, domestic violence and marital
discord if any).
(ii)
School and education (child’s school attendance, Last
grade attended, reasons for child not attending school-
whether it is due to financial issues or lack of
motivation, school refusal, corporal punishment).
(iii)
Work experience/ Child labour (why the child had to
work/ how child found the place of work, where he was
working / hours of work and amount of remuneration
received, was there any physical/emotional abuse by
the employer and also regarding negative influence the
child may have encountered in the workplace regarding
substance abuse etc).
(iv)
Peer relationships (adverse peer influence in the
context of substance use/ rule-breaking/inappropriate
sexual behaviour/school attendance)
(iv)
Experiences of trauma and abuse (physical, sexual &
emotional Abuse experiences) 3 (vi) Mental health
disorders and developmental disabilities: (Mental health
disorders and developmental disabilities that the child
may have).
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C. Child’sKnowledge of Consequences of Committing the
Alleged Offence
(A brief about the child’s understanding of social/
interpersonal and legal consequences of committing offence along
with the child’s insights regarding committing such an offence).

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D. Other Observations & Issues
E. Recommendations
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PROVISO TO SECTION 15(1) DIRECTORY OR
MANDATORY:
74. The world acknowledges that children in conflict with law
should be treated differently than adults in conflict with law. The reason
is that the mind of the child has not attained maturity and it is still
developing. Therefore, the child should be tested on different parameters
and should be given an opportunity of being brought into the main stream
if, during his juvenility, has acted in conflict with law. To understand
psychology of the child, huge rounds of studies have been made not only
recently but from age old times and child psychology is a subject which
is being studied world over and there are institutes specifically dealing
with the developments and research on the said subject. The enactments
dealing with children are enacted world over.
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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76. As already noticed, the Board consists of three members, one
is a Judicial Officer First Class and two social workers, one being a
woman. The social worker appointed as a member could be having a
degree in child psychology or psychiatry but it is not necessary. As such,
the constitution of the Board may not necessarily be having an expert
child psychologist. It is for all the above reasons that it has been provided
not only in sections 15 and 101(2) but also under the Model Rules that
assistance may be taken from an expert psychologist. Having regard to
the framework of the Act, 2015 and the Model Rules and the purpose of
preliminary assessment in terms of Section 15 as also looking to the
varied composition of the Board, we are of the view that where the
Board is not comprising of a practicing professional with a degree in
child psychology or child psychiatry, the expression “may” in the proviso
to section 15(1) would operate in mandatory form and the Board would
be obliged to take assistance of experienced psychologists or psycho-
social workers or other experts. However, in case the Board comprises
of at least one such member, who has been a practicing professional
with a degree in child psychology or child psychiatry, the Board may
take such assistance as may be considered proper by it; and in case the
Board chooses not to take such assistance, it would be required of the
Board to state specific reasons therefor.
77. It is a well settled principle
of interpretation that the word
‘may’ when used in a legislation by itself does not connote a directory
meaning. If in a particular case, in the interests of equity and justice it
appears to the court that the intent of the legislature is to convey a
statutory duty, then the use of the word “may” will not prevent the Court
from giving it a mandatory colour. This Court in Bachahan Devi v.
Nagar Nigam, Gorakhpur10, held as under:
“18. It is well settled that the use of the word “may” in a
statutory provision would not by itself show that the provision
is directory in nature. In some cases, the legislature may use
the word “may” as a matter of pure conventional courtesy
and yet intend a mandatory force. In order, therefore, to
interpret the legal import of the word “may”, the court has to
consider various factors, namely, the object and the scheme
of the Act, the context and the background against which the
10 (2008) 12 SCC 372
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words have been used, the purpose and the advantages sought
to be achieved by the use of this word, and the like. It is
equally well settled that where the word “may” involves a
discretion coupled with an obligation or where it confers a
positive benefit to a general class of subjects in a utility Act,
or where the court advances a remedy and suppresses the
mischief, or where giving the words directory significance
would defeat the very object of the Act, the word “may” should
be interpreted to convey a mandatory force. As a general rule,
the word “may” is permissive and operative to confer
discretion and especially so, where it is used in juxtaposition
to the word “shall”, which ordinarily is imperative as it
imposes a duty. Cases, however, are not wanting where the
words “may”, “shall” and “must” are used interchangeably.
In order to find out whether these words are being used in a
directory or in a mandatory sense, the intent of the legislature
should be looked into along with the pertinent circumstances.”
78. Similarly, this Court in Dhampur Sugar Mills Ltd. v. State of
U.P.11, held:
“36. ….In our judgment, mere use of word “may” or “shall”
is not conclusive. The question whether a particular provision
of a statute is directory or mandatory cannot be resolved by
laying down any general rule of universal application. Such
controversy has to be decided by ascertaining the intention
of the legislature and not by
looking at the language in which
the provision is clothed. And for finding out the legislative
intent, the court must examine the scheme of the Act, purpose
and object underlying the provision, consequences likely to
ensue or inconvenience likely to result if the provision is read
one way or the other and many more considerations relevant
to the issue.”
79. 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 psycho-social workers or other experts would operate as mandatory
11 (2007) 8 SCC 338
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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 therefor.
80. Before we close, it would be pertinent to mention that the
case laws relied upon by the learned counsel for the parties do not require
deliberation in view of the findings recorded by us on various issues.
CONCLUSION
81. We are conscious of the fact that the power to make the
preliminary assessment is vested in the Board and also the Children’s
Court under sections 15 and 19 respectively. The Children’s Court, on
its own, upon a matter being referred to under section 18(3), would still
examine whether the child is to be tried as an adult or not, and if it would
come to the conclusion that the child was not to be tried as an adult then
it would itself conduct an inquiry as a Board and pass appropriate orders
under section 18. Thus, the power to carry out the preliminary assessment
rests with the Board and the Children’s Court. This Court cannot delve
upon the exercise of preliminary assessment. This Court will only examine
as to whether the preliminary assessment has been carried out as required
under law or not. Even the High Court, exercising revisionary
power
under section 102, would test the decision of the Board or the Children’s
Court with respect to its legality or propriety only. In the present case,
the High Court has, after considering limited material on record, arrived
at a conclusion that the matter required reconsideration and for which, it
has remanded the matter to the Board with further directions to take
additional evidence and also to afford adequate opportunity to the child
before taking a fresh decision.
82. In arriving at the conclusion, the High Court firstly held that
there was denial of adequate opportunity to the respondent. The list of
documents, copies of the documents, copies of the statement, the SIR
not being provided to the respondent, was in clear violation of rule 10(5)
of the Model Rules.
83. Despite specific request for cross-examining the experts who
had given the report, the same was not provided to the respondent. The
tests conducted by the expert psychologists were not applicable or could
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not have been applied to a child above the age of 15 years. It could have
been applied only for children below the age of up to 15 years in one test
and up to 11.5 years in the other test. The psychologist had suggested
for further assessment by a superior facility, which was not accepted by
the Board without cogent reason.
84. The mental age as per the applicable formula based on the IQ
of the child would be less than 16 years. The Board, provided only 30
minutes time to the child, his lawyer, his father and also to the counsel
for CBI to peruse the 35 pages of the report, which was too little to
peruse and comprehend and give any evidence in rebuttal. The CBI
counsel had admitted that it did not have officers or the required
infrastructure to conduct the investigation under the Act, 2015. For all
the above reasons, the High Court remitted the matter to the Board
after setting aside both the orders of the Board and the Children’s Court
to consider afresh and assess the intelligence, maturity, physical fitness
and as to how the child in conflict with law was in a position to know the
consequences of the offence. The exercise was to be undertaken within
a period of six weeks. The High Court further directed that while
conducting the preliminary assessment afresh, opinion of the psychologist
of the Government Hospital (Institute of Mental Health, University of
Health Sciences, Rohtak) be obtained. This Court may not
agree with
the reasoning given by the High Court on all counts and also the direction
given for conducting further tests. However, we have no hesitation in
agreeing with the ultimate result of the High Court in remanding the
matter for a fresh consideration after rectifying the errors on lack of
adequate opportunity.
85. The High court taking into consideration all these aspects set
aside the order of the Board, and remanded the matter and also directed
for getting further examination of the child, and this exercise was to be
undertaken within 6 weeks. Today, after 3½ years, we are not in a position
to give an opinion as to whether any further test can be carried out at
this stage as the age of the child is now more than 21 years. However,
we leave it to the discretion of the Board or the psychologist who may
be consulted as to whether any fresh examination would be of any
relevance/assistance or not. We have already referred to in detail the
kind of analysis or assessment required to be made under section 15.
The Act, 2015 or the Model Rules do not lay down any guidelines or
framework to facilitate the Board in making a proper preliminary
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assessment on the relevant aspects. The only liberty given to the Board
is to obtain assistance of an experienced psychologist or a psycho-social
worker or other expert. In the present case, the only assistance taken is
to get the mental IQ of the child. Beyond that, regarding the ability to
understand the consequences and also the circumstances in which the
alleged offence was committed, no report was called for from any
psychologist.
86. In view of the above, both the appeals are dismissed.
87. Before concluding, we may indicate that the task of preliminary
assessment under section 15 of the Act, 2015 is a delicate task with
requirement of expertise and has its own implications as regards trial of
the case. In this view of the matter, it appears expedient that appropriate
and specific guidelines in this regard are put in place. Without much
elaboration, we leave it open for the Central Government and the National
Commission for Protection of Child Rights and the State Commission
for Protection of Child Rights to consider issuing guidelines or directions
in this regard which may assist and facilitate the Board in making the
preliminary assessment under section 15 of the Act, 2015.
88. We also make it clear that any observations made in our order
which may be touching the merits of the case was only for the purpose
of deciding these appeals and the same would in no way influence the
Board or the Children’s Court or the High Court. They may proceed to
decide the matters objectively on merits in accordance with law.
Bibhuti Bhushan Bose
Appeals dismissed.
(Assisted by : Shubhanshu Das, LCRA)
BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR.
[VIKRAM NATH, J.]