# Shanu Raja v. State of U.P

- **Citation:** (2024) 4 ILRA 725
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-02
- **Case number:** Application U/S 482. No. 31760 of 2023
- **Bench:** Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shanu-raja-v-state-of-u-p-51847
- **Pages:** 15

## Headnote

Law
-

Code
of
Criminal
Procedure,1973 -Section 482- Juvenile
Justice (Care and Protection of Children)
Act, 2015 - Section 14(3) - Quashing of
Juvenile Justice Board Order - The applicant
sought to set aside the order dated 19.07.2019
by the Juvenile Justice Board (JJB), Lalitpur,
transferring his case to the Children's Court
under the Juvenile Justice (Care and Protection
of Children) Act, 2015 - Held, the order was set
aside
due
to
non-compliance
with
the
mandatory time limit under Section 14(3) of the
Act, and the case was remanded to the JJB for
trial. (Paras 4, 38, 39)

B. Section 14(3) of JJ Act, 2015 -
Mandatory
Time
Limit
for
Preliminary
Assessment - The JJB conducted a preliminary
assessment under Section 15 for a heinous
offence after a delay of over two years from the
first production of the juvenile, contrary to the
three-month limit prescribed by Section 14(3) -
Held, the provision is mandatory, and noncompliance renders the assessment non-est, as
it prejudices the juvenile's rights. (Paras 12, 25,
34, 36, 37)

C. Section 15 of JJ Act, 2015 - Preliminary
Assessment for Heinous Offences - The JJB
assessed the applicant's mental and physical
capacity to commit murder, concluding he could
understand the consequences - Held, the
assessment was invalid due to the delay beyond
the statutory period, violating the principles of
best interest and non-waiver of rights under
Sections 3 and 8 of the Act. (Paras 4, 29, 34,
35)

D. Best Interest and Non-Waiver of Rights
- The Juvenile Justice Act emphasizes the best
interest of the child and prohibits waiver of
rights - Held, the delay in conducting the
preliminary
assessment
violated
these
principles, causing prejudice to the juvenile and
undermining the Act's objective of child-friendly
justice. (Paras 9, 10, 23, 33, 37)
726 INDIAN LAW REPORTS ALLAHABAD SERIES
E. Mandatory vs. Directory Provisions -
The court analyzed whether Section 14(3) is
mandatory or directory, relying on Bhavnagar
University Vs Palitana Sugar Mills and Sharif-udDin Vs Abdul Gani Lone - Held, the time limit is
mandatory due to its impact on the juvenile's
rights and the legislative intent to ensure timely
justice. (Paras 12, 13, 18, 34)

Application Allowed.

List of Cases cited:

## Text

_Characters 0–39,660 of 49,542. This is a partial read: ask again with offset=39660 for what follows._

4 All. Shanu Raja Vs. State of U.P.
725
and such type of international calls pose a
great threat to the national security as the
international calls remain unmonitored by
the law enforcement agencies and the
public at large is affected by such calls and
which are mostly used for cheating the
public at large and such calls are often
involved in illegal activities and antinational activities and thus, this is a serious
threat to the national security. Therefore, in
the considered view of this Court, the
instant case is of an exceptional nature,
where, though this Court has granted bail to
the other co-accused persons, has rejected
the bail applications of the applicant herein
twice as the case against the applicant
herein was found distinguishable with the
other co-accused persons.

22. Therefore, in the considered view
of this case, the learned Magistrate is
justified in rejecting the bail application
filed by the applicant u/S 437(6) of the
Code,
considering
the
exceptional
circumstances involved in the case against
the applicant herein. Therefore, there is no
illegality in the impugned order dated
19.07.2022,
passed
by
the
learned
Magistrate. Therefore, the application is
devoid of merits and is hereby dismissed.
----------
(2024) 4 ILRA 725
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2024

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Application U/S 482. No. 31760 of 2023

Shanu Raja ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Saurabh Gour, Sri A.B.L. Gour (Sr.
Adv.), Sri Pradeep Kumar Bhardwaj

Counsel for the Opposite Party:
G.A.

Criminal
Law
-

Code
of
Criminal
Procedure,1973 -Section 482- Juvenile
Justice (Care and Protection of Children)
Act, 2015 - Section 14(3) - Quashing of
Juvenile Justice Board Order - The applicant
sought to set aside the order dated 19.07.2019
by the Juvenile Justice Board (JJB), Lalitpur,
transferring his case to the Children's Court
under the Juvenile Justice (Care and Protection
of Children) Act, 2015 - Held, the order was set
aside
due
to
non-compliance
with
the
mandatory time limit under Section 14(3) of the
Act, and the case was remanded to the JJB for
trial. (Paras 4, 38, 39)

B. Section 14(3) of JJ Act, 2015 -
Mandatory
Time
Limit
for
Preliminary
Assessment - The JJB conducted a preliminary
assessment under Section 15 for a heinous
offence after a delay of over two years from the
first production of the juvenile, contrary to the
three-month limit prescribed by Section 14(3) -
Held, the provision is mandatory, and noncompliance renders the assessment non-est, as
it prejudices the juvenile's rights. (Paras 12, 25,
34, 36, 37)

C. Section 15 of JJ Act, 2015 - Preliminary
Assessment for Heinous Offences - The JJB
assessed the applicant's mental and physical
capacity to commit murder, concluding he could
understand the consequences - Held, the
assessment was invalid due to the delay beyond
the statutory period, violating the principles of
best interest and non-waiver of rights under
Sections 3 and 8 of the Act. (Paras 4, 29, 34,
35)

D. Best Interest and Non-Waiver of Rights
- The Juvenile Justice Act emphasizes the best
interest of the child and prohibits waiver of
rights - Held, the delay in conducting the
preliminary
assessment
violated
these
principles, causing prejudice to the juvenile and
undermining the Act's objective of child-friendly
justice. (Paras 9, 10, 23, 33, 37)
726 INDIAN LAW REPORTS ALLAHABAD SERIES
E. Mandatory vs. Directory Provisions -
The court analyzed whether Section 14(3) is
mandatory or directory, relying on Bhavnagar
University Vs Palitana Sugar Mills and Sharif-udDin Vs Abdul Gani Lone - Held, the time limit is
mandatory due to its impact on the juvenile's
rights and the legislative intent to ensure timely
justice. (Paras 12, 13, 18, 34)

Application Allowed.

List of Cases cited:

1. Bhavnagar University Vs Palitana Sugar Mills
Pvt. Ltd., (2003) 2 SCC 111

2. Dattatraya Moreshwar Vs St. of Bombay, AIR
1952 SC 181

3. Sharif-ud-Din Vs Abdul Gani Lone, AIR 1980
SC 303

4. D A Koregaonkar Vs St. of Bombay, AIR 1958
Bom 167

5. Ramkrishnamma Vs Lakshmibayamma, AIR
1958 AP 497

6. Raza Buland Sugar Co. Vs Municipal Board,
Rampur, AIR 1965 SC 895

(Delivered by Hon'ble Vinod Diwakar, J.)

1. This judgment is being structured
in the following conceptual framework to
facilitate the discussion:

I
Prosecution Case in Brief
II
Issue before this Court
III Submissions
IV Broad Reasons and Objectives for the Enactment of
the Juvenile Justice (Care and Protection of
Children) Act, 2015
V
Factual Analysis of the Case
VI Conclusion

2. I heard Shri A.B.L. Gour, learned
Senior Counsel, assisted by Shri Pradeep
Kumar Bhardwaj, learned counsel for the
applicant, and Shri Vaibhav Anand Singh,
learned A.G.A. for the State Respondent
and perused the record.

I. Prosecution Case in Brief

3. As per the prosecution's case,
while the complainant party was sowing in
the field, the accused party attacked them
with a sharp-edged weapon and also
resorted to fire. One of the injured died in
hospital, whereas three victims sustained
serious injuries. The petitioner is also
arrayed one of the accused along with six
others. On reporting to the police on
11.10.2016, an FIR No.0484 of 2016 under
sections 302, 147, 148, 149, 307, 504 &
506 IPC was registered at P.S. Pali, District
Lalitpur.
After
concluding
the
investigation, the police filed a charge sheet
in the instant case on 21.7.2017 before the
Juvenile Justice Board qua petitioner.

4. The petitioner claims to be minor at
the time of the offence and placed reliance
on the High School Certificate dated
15.5.2016 issued by the Board of High
School and Intermediate Education, Uttar
Pradesh, in which the applicant's date of
birth is mentioned as 19.9.1999. The
petitioner was 17 years and 22 days old at
the time of the incident. In essence, the
petitioner was over sixteen years old but
less than eighteen years of age; therefore,
claim rescue of section 15 read with section
14(3) of the Juvenile Justice (Care and
Protection of Children) Act, 2015. The core
argument of the petitioner is that the order
dated 19.7.2019 passed by the Juvenile
Justice Board, Lalitpur, is defective in law
and, thus, has no legal sanctity, therefore,
the Children's Court, has no competent
jurisdiction. Notably, the Juvenile Justice
Board, Lalitpur, initially tried the matter,
and after it, vide impugned order dated
4 All. Shanu Raja Vs. State of U.P.
727
19.7.2019, holding the juvenile (petitioner)
has the physical capacity to commit the
murder
and
could
understand
the
consequence of the offence and the
circumstances in which the murder has
been committed referred the matter to the
Children's Court (POCSO Act), Lalitpur for
further trial

II. Issue before this Court

5. Aggrieved by the impugned order
dated
19.7.2019,
the
petitioner
has
preferred the instant petition to transfer the
case to the Juvenile Justice Board, Lalitpur,
for further trial in accordance with the
provisions of the Act1. In essence, whether
the Board was right to invoke the provision
of section 15 of the Act in utter disregard of
section 14(3) of the Act1 and justified in
transferring the case in question for further
trial to the Children's Court having
jurisdiction to try such offences.

III. Submissions

6. In this background, Shri A.B.L.
Gour, learned Senior Counsel assisted by
Shri Pradeep Kumar Bhardwaj, learned
counsel for the petitioner, outlined his
arguments as under:

6.1
On
completion
of
the
investigation, when it was revealed that the
applicant was less than 18 years of age at
the time of the incident, the Investigating
Officer submitted the charge sheet before
the Juvenile Justice Board qua petitioner
and Chief Judicial Magistrate qua other
accused persons.

6.2 The petitioner was a juvenile
at the time of occurrence of the crime, and
therefore, his case shall be tried before the
Juvenile Justice Board.

6.3 On 2.2.2017, the petitioner filed
an application before the Juvenile Justice
Board, Lalitpur, to declare him a juvenile, and
therefore, vide order dated 13.4.2017, the
Juvenile Justice Board, after considering; a)
the
petitioner's
mother's
statement,
b)
statement of the Principal of Thakur Raghubir
Singh Inter College, Lalitpur, c) the record
brought by the Principal containing the 10th
Class Mark-sheet, and d) Transfer Certificate
declared the petitioner as a juvenile in
accordance with the Act.

6.4 Almost after a delay of two and
half years, by the time the petitioner had
completed 18 years, taking recourse of
section 14 of the Act1 on the application of
the prosecution, the Juvenile Justice Board
held an inquiry and based on the primary
assessment with regard to the petitioner's
mental and physical capacity to commit
murder observed that the petitioner had the
ability to understand the consequences of the
offence and circumstances in which the
murder was committed. The preliminary
assessment of the Board is in defiance of
section 14(3) of the Act1, which mandates
the preliminary assessment in cases of
heinous offences within a period of three
months from the date of the first production
of the child before the Board. In the instant
case, the child was first produced before the
Board on 23.11.2016, and the impugned
order was passed on 19.7.2019, after a delay
of two years, seven months and twenty seven
days. Therefore, the preliminary assessment
is erroneous and is bad in law.

6.5 The impugned order is passed
mechanically without the application of the
judicial mind.

6.6 The mandatory requirement
of section 14(3) must be addressed
harmoniously with section 15 of the Act1.
728 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Per contra, learned AGA states that
the petitioner is facing a trial in a case in
which one person has been brutally
murdered in broad daylight, and the
assailant party has seriously injured three
persons. The preliminary inquiry conducted
in pursuance to section 14 of the Act1 is
infallible, and the Board has taken all
necessary steps to ensure a fair and speedy
inquiry. He next contends that the provision
of section 14(5) of the Act1 has been
followed in letter and spirit, and the
preliminary
assessment
into
heinous
offences by the Board as contemplated
under section 15 of the Act1 has no legally
sustainable flaw.

IV.
Broad
Reasons
and
Objectives for the Enactment of the
Juvenile Justice (Care and Protection of
Children) Act, 2015

8. It is judicious to take a
comprehensive overview of the statement
of objectives and reasons, in addition to the
relevant provision of the Act1, before
dealing with the facts of the case, which are
delineated hereafter in the succeeding
paragraphs.

8.1 It was opportune by the
parliament to re-enact the Juvenile Justice
(Care and Protection of Children) Act,
2000
(56
of
2000)
to
formulate
comprehensive regulations for children
entangled in legal conflicts and those
requiring
care
and
protection.
This
initiative
meticulously
considered
the
standards delineated in the Convention on
the Rights of the Child, the United Nations
Standard
Minimum
Rules
for
the
Administration of Juvenile Justice (the
Beijing Rules), the United Nations Rules
for the Protection of Juveniles Deprived of
their Liberty (1990), and the Hague
Convention on Protection of Children and
Co-operation in Respect of Intercountry
Adoption
(1993)
additionally
the
constitutional scheme guaranteed in Article
15 of the Constitution, besides other
provisions, empowers the State to enact
specific measures for children under
Articles 39(e) and (f), 45, and 47 further
ensuring the fulfilment of all children's
needs
and
the
protection
of
their
fundamental human rights.

8.2 India's ratification of the
United Nations Convention on the Rights
of Children on 11th December 1992
obligates
state
parties
to
undertake
appropriate measures when a child is
alleged or accused of violating any penal
law. These measures include treating the
child
in
a
manner
consistent
with
promoting their sense of dignity and worth,
reinforcing respect for the human rights of
others, and considering the child's age and
the
desirability
of
promoting
their
reintegration into society.

8.3 The enactment of the Juvenile
Justice (Care and Protection of Children)
Act in 2000 aimed to safeguard children,
subsequently amended in 2006 and 2011 to
address implementation gaps and enhance
child-friendliness.
However,
challenges
emerged during its implementation, such as
increasing incidents of institutional abuse,
inadequate
facilities,
rehabilitation
shortcomings, delays in adoption, and
ambiguity in roles and responsibilities.
These issues underscore the imperative to
review the existing law.

8.4 Furthermore, the surge in
crimes committed by children aged 16-18
highlights the inadequacy of current
provisions under the Juvenile Justice (Care
and Protection of Children) Act, 2000.
4 All. Shanu Raja Vs. State of U.P.
729
National Crime Records Bureau data
reveals a notable increase in such offences,
particularly in heinous categories.

8.5 Addressing the above issues
necessitates substantial amendments to the
Juvenile Justice (Care and Protection of
Children) Act, 2000. Consequently, Act of
2000 was re-enacted and the Juvenile
Justice Act, 2015 came into existence.
This legislation is designed to encompass
general principles for the care and
protection of children, procedures for
those in need of care and protection or in
conflict
with
the
law,
rehabilitation
measures, social reintegration strategies,
adoption
processes
for
orphaned,
abandoned, and surrendered children, and
provisions
against
offences
targeting
children. The overarching goal is to ensure
children's
proper
care,
protection,
development,
treatment,
and
social
reintegration
in
challenging
circumstances, adopting a child-friendly
approach with the child's best interest at
its core.

9. Section 2 (9) of the Act1 espouses
the definition of the "best interest of the
child" means the basis for any decision
taken regarding the child to ensure the
fulfilment of the child's fundamental rights
and needs, identity, social well-being and
physical,
emotional
and
intellectual
development who is alleged or found to
have committed an offence and who has
not completed eighteen years of age on the
date of commission of such offence.

10. Section 3 of the Act1 addresses
the inclusive general principles governing
the administration of the Act. The relevant
excerpt of the general principles which
shall have a bearing on the facts of the
instant case are reproduced hereinafter,
namely (i) Principle of presumption of
innocence.- Any child shall be presumed to
be innocent of any mala fide or criminal
intent up to the age of eighteen years; (ii)
Principle of best interest.- All decisions
regarding the child shall be based on the
primary consideration that they are in the
best interest of the child and to help the
child to develop full potential; (iii) Positive
measures.- All resources are to be
mobilised, including those of family and
community, for promoting the well-being,
facilitating the development of identity and
providing
an
inclusive
and
enabling
environment to reduce vulnerabilities of
children and the need for intervention
under this Act; (iv) Principle of nonstigmatising semantics.- Adversarial or
accusatory words are not to be used in the
processes pertaining to a child; (v)
Principle of non-waiver of rights.- No
waiver of any of the rights of the child is
permissible or valid, whether sought by the
child or person acting on behalf of the
child, or a Board or a Committee and any
non-exercise of a fundamental right shall
not amount to waiver; (vi) Principle of
diversion.- Measures for dealing with
children in conflict with law without
resorting to judicial proceedings shall be
promoted unless it is in the best interest of
the child or the society as a whole; (vii)
Principles of natural justice.- Basic
procedural standards of fairness shall be
adhered to, including the right to a fair
hearing, rule against bias and the right to
review by all persons or bodies acting in a
judicial capacity under this Act1 besides
other fundamental grounds.

11.

It
is
the
function
and
responsibility of the Board to adjudicate
and dispose of cases of children in conflict
with the law in accordance with the process
of inquiry specified in section 14 of the
730 INDIAN LAW REPORTS ALLAHABAD SERIES
Act1 in alignment with the Model Rules2.
The relevant rules of the Model Rules are
reproduced hereinafter:

10. Post-production processes by
the Board.- (1) On production of the child
before the Board, the report containing the
social background of the child, circumstances
of apprehending the child and offence alleged
to have been committed by the child as
provided by the officers, individuals, agencies
producing the child shall be reviewed by the
Board and the Board may pass such orders
in relation to the child as it deems fit,
including orders under sections 17 and 18 of
the Act, namely:

(i) disposing of the case, if on the
consideration of the documents and record
submitted at the time of his first appearance,
his being in conflict with law appears to be
unfounded or where the child is alleged to be
involved in petty offenses;
****************

(5) In cases of heinous offenses
alleged to have been committed by a child,
who has completed the age of sixteen 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, a copy of which
shall also be given to the child or parent or
guardian of the child.
****************

(8) While examining a child
alleged to be in conflict with law and
recording his statement during the inquiry
under section 14 of the Act, the Board shall
address the child in a child-friendly manner
in order to put the child at ease and to
encourage him to state the facts and
circumstances without any fear, not only in
respect of the offense which has been
alleged against the child, but also in
respect
of
the
home
and
social
surroundings, and the influence or the
offenses to which the child might have been
subjected to.

(9) The Board shall take into
account
the
report
containing
circumstances of apprehending the child
and the offense alleged to have been
committed
by
him
and
the
social
investigation report in Form-6 prepared by
the Probation Officer or the voluntary or
non- governmental organisation, along
with the evidence produced by the parties
for arriving at a conclusion.

10A.
Preliminary
assessment
into heinous offenses 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 offenses, the Board may take the
assistance of psychologists or psychosocial 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.

(4) Where the Board, after
preliminary assessment under section 15 of
the Act, passes an order that there is a need
4 All. Shanu Raja Vs. State of U.P.
731
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.

11. Completion of Inquiry.- (1)
Where after preliminary assessment under
section 15 of the Act, in cases of heinous
offenses allegedly committed by a child,
the Board decides to dispose of the matter,
the
Board
may
pass
any
of
the
dispositional orders as specified in section
18 of the Act.

(2) Before passing an order, the
Board shall obtain a social investigation
report in
Form-6 prepared by
the
Probation Officer or
Child
Welfare
Officer or social worker as ordered, and
take the findings of the report into
account.

(3)
All
dispositional
orders
passed by the Board shall necessarily
include an individual care plan in Form-7
for the child in conflict with law
concerned, prepared by a Probation
Officer or Child Welfare Officer or a
recognised voluntary organisation on the
basis of interaction with the child and his
family, where possible.

12. Pendency of Inquiry (1) For
the purpose of sub-section (3) of section
16 of the Act, the Board shall maintain a
'Case Monitoring Sheet' of every case and
every child in Form-11. The said Form
shall be kept at the top of each case file
and shall be updated from time to time.
The following points shall be considered
so far as 'progress of inquiry' mentioned
in Form-11 is concerned:

(i) time schedule for disposal of the case
shall be fixed on the first date of hearing;
(ii) scheduled date given in column No.(2)
of 'progress of inquiry' shall be the outer
limit within which the steps indicated in
column (1) are to be completed.

12. The principal issue before this
Court is whether the requirement of section
14(3) of the Act1 is mandatory or directory.
We are not oblivious of the law that when a
public functionary is required to do certain
things within a specified time, the same is
ordinarily directory, but it is equally well
settled that when consequences for inaction
on the part of the statutory authorities
within such specified time is specially
provided it must be held to be imperative.
The three-judge Bench of the Supreme
Court in Bhavnagar University v. Palitana
Sugar Mills Pvt. Ltd. and others3, held
that;

43. In Sutherland's Statutory
Construction, 3rd Edn., Vol. 3, at p. 102
the law is stated as follows:

"... unless the nature of the act to
be performed, or the phraseology of the
statute is such that the designation of time
must be considered a limitation of the
power of the officer".

At p. 107 it is pointed out that a
statutory direction to private individuals
should
generally
be
considered
as
mandatory and that the rule is just the
opposite to that which obtains with
respect to public officers. Again, at p.
109, it is pointed out that often the
question as to whether a mandatory or
directory construction should be given to
a statutory provision may be determined
by an expression in the statute itself of
the
result
that
shall
follow
noncompliance with the provision. At p. 111
it is stated as follows:
732 INDIAN LAW REPORTS ALLAHABAD SERIES

"As a corollary of the rule
outlined
above,
the
fact
that
no
consequences of non-compliance are stated
in the statute, has been considered as a
factor
tending
towards
a
directory
construction. But this is only an element to
be considered, and is by no means
conclusive."

(See also Crawford on Statutory
Construction, Article 269 at p. 535.)

44. In Dattatraya Moreshwar v.
State of Bombay [(1952) 1 SCC 372 : AIR
1952 SC 181] it was held as under: (AIR p.
185, para 7)

"[G]enerally
speaking
the
provisions of a statute creating public
duties are directory and those conferring
private rights are imperative. When the
provisions
of
statute
relate
to
the
performance of a public duty and the case
is such that to hold null and void acts done
in neglect of this duty would work serious
general inconvenience or injustice to
persons who have no control over those
entrusted with the duty and at the same
time would not promote the main object of
the legislature, it has been the practice of
the courts to hold such provisions to be
directory only, the neglect of them not
affecting the validity of the acts done."

45. In Craies on Statute Law, 8th
Edn., at p. 262, it is stated thus:

" ... It is the duty of courts of
justice to try to get at the real intention of
the legislature by carefully attending to the
whole scope of the statute to be construed.'
... that in each case you must look to the
subject-matter, consider the importance of
the provision and the relation of that
provision to the general object intended to
be secured by the Act, and upon a review of
the case in that aspect decide whether the
enactment is what is called imperative or
only directory."

13. In Sharif-ud-Din v. Abdul Gani
Lone4, the Supreme Court has delineated
the difference between a mandatory and
directory rule. It was observed by the court
that the fact that the statute uses the word
shall while laying down a duty is not
conclusive on the question whether it is a
mandatory or a directory provision. The
court has to ascertain the object which the
provision of law in question is to subserve
its design and the context in which it is
enacted. If the object of the law will be
defeated by non-compliance with it, it has
to be regarded as mandatory. But when a
provision of law related to the performance
of any public duty and the invalidation of
any act done in disregard of that provision
causes serious prejudice to those for whose
benefit it is enacted and at the same time
who have no control over the performance
of the duty, such provision should be
treated as a directory.

14. The question of whether the
statute is mandatory or directory is not
capable of generalisation, and in each case,
the court should try to understand the
legislature's intention by analysing the
entire provisions of the enactment and the
schemes outlying it.

15. In D A Koregaonkar v. State of
Bombay5, it was held that one of the
important tests that must always be
employed in order to determine whether a
provision is mandatory or directory in
character is to consider whether the noncompliance of a particular provision causes
inconvenience or injustice and, if it does,
then the court would say that, the provision
4 All. Shanu Raja Vs. State of U.P.
733
must be complied with and that it is
obligatory in its character.

16. In determining whether a
provision of law is directory or mandatory,
the prime object must be to ascertain the
legislative intent from a consideration of
the entire statute, its nature, its object, and
the consequences that would result from
construing it in one way or the other or in
connection with other related statutes. The
determination does not depend on the form
of the statute.

17.

In
Ramkrishnamma
v.
Lakshmibayamma6, it was held that, in
order to determine whether a particular
provision is mandatory or directory, it
would be necessary to ascertain whether
the failure to comply with the requirement
affects the very foundation of being
validated, It is always difficult to demarcate
with any degree of accuracy in a particular
case what is mandatory and what is
directory, or what is irregularity and what
is a nullity. When a question arises as to
how far the proceedings are affected by the
contravention of any provision, it is
necessary to see the scope and object of the
particular provision which is said to be
violated.

18. The word 'shall' is not always
decisive. Regard must be had to the
context, subject matter and object of the
statutory
provision
in
question
in
determining whether the same is mandatory
or directory. No universal principle of law
could be laid on that behalf as to whether a
particular provision or enactment shall be
considered mandatory or directory. It is the
duty of the court to try to get at the real
intention of the legislature by carefully
analysing the whole scope of the statute
/section or phrase under consideration.

19. The central idea for enacting the
Act1 is to make State responsible for
ensuring that all needs of children are met
and their fundamental human rights are
protected, and secondly, as the provisions
of Juvenile Justice (Care and Protection of
Children) Act, 2000 were ill-equipped to
tackle child offenders between the age
group of 16-18 years, whose involvement
has been increased especially in certain
categories of heinous offences to make the
provision more rational and to meet the
requirement of the society.

20. In Raza Buland Sugar Co v.
Municipal Board, Rampur7, the Supreme
Court considered section 131 (3) of the
U.P. Municipalities Act, 1916, which read
as follows- "The Board shall, thereupon,
publish in the manner prescribed in section
94 the proposal framed under sub-section
(2) along with a notice in the form set forth
in Schedule III". The Supreme Court
decided whether the expression 'shall' in the
provision was mandatory or directory. The
court held that as long as publication was
made in substantial compliance with the
manner provided in section 94 (3), it would
serve the purpose of the mandatory part of
the section which provided for publication.
It would, therefore, be improper to hold
that the manner of publication provided in
section 94 (3) was a directory, and so long
as there is substantial compliance with that
purpose, the mandatory part of section 131
(3) would be served. In arriving at the
decision, the Supreme Court observed as
follows:

"The
question
whether
a
particular provision of a statute which on
the face of it appears mandatory, inasmuch
as it used the word 'shall' as in the present
case, is merely directory cannot be
resolved by laying down any general rule
734 INDIAN LAW REPORTS ALLAHABAD SERIES
and depends upon the facts of each case
and for that purpose the object of the
statute in making the provision is the
determining factor. The purpose for which
the provision has been made and it nature,
the intention of the legislature in making
the
provision,
the
serious
general
inconvenience or injustice to a person
resulting from whether the provision is
read one way or the other, the relation of
the particular provision to other provisions
dealing with the same subject and other
considerations which may arise on the facts
of a particular case including the language
of the provision, have all to be taken into
account in arriving at the conclusion
whether
a
particular
provision
is
mandatory or directory".

21. The best interest of the child
means the basis for any decision taken
regarding the child to ensure the fulfilment
of his fundamental rights and needs,
identity, social well-being, and physical,
emotional, and intellectual development
shall be taken into consideration when a
child is alleged or found to have committed
an offence and who was not completed 18
years of age on the date of commission of
such offence.

22. A person in conflict with the law
is considered a juvenile when a person is
below the age of eighteen years, whereas
heinous offences include the offences for
which the minimum punishment under the
Indian Penal Code or any other law for the
time being in force is imprisonment for
seven years or more.

23. A combined interpretation of
section 3 with 8 of the Act1 makes it clear
that the principle of best interest and
principle of no-waiver of rights shall have
the paramount consideration while dealing
with the administration of the Act1. All
decisions regarding the child shall be based
on the primary consideration that they are
in the best interest of the child and to help
the child to develop full potential, and nowaiver of any of the rights of the child is
permissible or valid, whether sought by the
child or person acting on behalf of the
child, or a Board or a Committee and any
non-exercise of a fundamental right shall
not amount to waiver. The child is to be
presumed innocent of any malafide or
criminal intent until the age of eighteen.

24 . It is the utmost responsibility of
the Board, as mandated by section 8(3) of
the Act1, to adjudicate and dispose of the
case of the children in conflict in
accordance with the process of inquiry
specified in section 14 of the Act1 and
disposing of the matter within three months
from the date of the first production of the
child before the Juvenile Justice Board. It is
the equal responsibility of the court of
Magistrate if the court finds that a person
has committed an offence and was a child
on the date of commission of the offence, it
shall forward the child to the Board for
passing the appropriate order under section
15 of the Act1.

25. It is a mandatory requirement
under section 14 of the Act1 that a
preliminary assessment of heinous offences
as contemplated under section 15 of the
Act1 shall be conducted by the Board
within three months from the date of the
first production of the child before the
Board. Section 15 of the Act1 contemplates
that the preliminary assessment into the
heinous offences by the Board of a child
who has completed or is about the age of
sixteen years to have a preliminary
assessment with regard to the person's
mental and physical capacity to commit
4 All. Shanu Raja Vs. State of U.P.
735
such offence and ability to understand the
consequences of the offence, and the Board
shall consider the circumstances in which
the child in conflict allegedly committed
the offence. The Board may take the
assistance of experienced psychologists or,
psycho-social workers or other experts as it
may deem necessary. It's being provided
explicitly that the assessment under section
15 of the Act1 shall be completed within
the period specified in section 14 of the
Act1. The Explanation appended with
section 15 of the Act1 clarifies that the
preliminary assessment is not a trial, but it
is to assess the capacity of such a child to
commit and understand the consequences
of the alleged offence. In essence, the
tenets of a fair trial is the consideration of
the best interest of the child and no-waiver
of any rights of a child is permissible or
valid, whether sought by the child or a
Board and maintaining a child-friendly
atmosphere are integral parts of the core
principles outlined in the Act1.

26. The Model Rules2, framed under
the Act1, ponders all the procedural aspects
of the provisions of the Act1 to be taken
into consideration during the administration
of the provisions of the Act1. Rule 9 of the
Model Rules2 mandates the production of
the child alleged to be in conflict with the
law within 24 hours of his being
apprehended by the police, along with the
report explaining the reasons for the child
besides other procedural aspects in this
regard.

27. Rule 10 of the Model Rules2
establishes the post-production process by
the Board on the production of the child
before the Board. In cases of heinous
offences alleged to have been committed
by the child, who has completed the age of
sixteen years, it mandates that the Child
Welfare Police Officer shall produce the
statements
of
witnesses
and
other
documents prepared during the course of
investigation within a period of one month
from the first production of the child before
the Board. The Board shall ensure that if
the inquiry is not conducted in alignment
with the spirit and object of the Act1, it
shall use the power conferred by section
165 of the Evidence Act, 1872 so as to
interrogate the child and proceed with the
presumptions in favour of the child8. While
conducting the preliminary inquiry under
section 17 of the Act1, the Board shall
address the child in a child-friendly manner
in order to put the child at ease and to
encourage him to state the facts and
circumstances without any fear, not only
with respect to the offence but also in
respect
of
the
home
and
social
surroundings and influence. The Board
shall also take into consideration the report
containing
the
circumstances
of
apprehending the child and the offence
alleged to have been committed by him and
the social investigation report prepared by
the Probation Officer or the voluntarily
non-government
organisations9.
Before
passing an order on preliminary assessment
under section 15 of the Act, the Board shall
obtain a social investigation report in
accordance with Form-610.

V. Factual Analysis of the Case

28. In the background of the law
discussed hereinabove, the facts of the case
are being examined herein after. The
documents annexed with the petition were
not adequately sufficient to decide the
instant case; therefore, the petitioner's
counsel was called upon to file the
proceedings conducted by the Juvenile
Justice
Board, Lalitpur, by
way
of
supplementary affidavit, and accordingly,
736 INDIAN LAW REPORTS ALLAHABAD SERIES
three supplementary affidavits were filed
on i) 5.11.2023, ii) 10.12.2023 & iii)
13.12.2023.

29.

The
first
affidavit
dated
5.11.2023, appendices a report dated
19.7.2019 prepared under section 15 of the
Act1 by a panel comprised of Assistant
Professor,
Psychology,
Nehru
Mahavidyalay, Lalitpur and Associate
Professor, Sociology, Nehru Mahavidyalay,
Lalitpur to assess the mental and physical
capacity of the petitioner to commit murder
and
an
ability
to
understand
the
consequences of murder and circumstances
of which the alleged crime has been
committed. On scrutiny of the preliminary
assessment, it's observed that the petitioner
was asked about the circumstances in
which the alleged offence was committed.
It was further observed that the petitioner
was mentally and psychologically capable
of answering the question posed by the
panel. In response to the queries raised by
the panel, the petitioner stated that he had
been falsely implicated because of the
hostility and he was not present at the place
of the occurrence when the alleged offence
was committed, and finally concluded that
the petitioner has the ability to understand
the consequence of offence and the
circumstances in which he allegedly
committed the offence.

30. On perusal of affidavit dated
10.12.2023, it revealed that the Juvenile
Justice Board, vide order dated 13.4.2017,
declared the petitioner minor in accordance
with the Act1 after taking evidence of
mother of the petitioner and the Principal of
Thakur Raghubir Singh Inter College,
Lalitpur, and observed that the petitioner
was seventeen years and twenty-two days
on the date of commission of alleged
offence, and proceeded with the trial.

31. On examination of the affidavit
dated 13.12.2023, it outlines that the
petitioner was taken into first remand on
23.11.2016; after that, on 21.2.2017, the
Board took cognisance of the matter, and
after that, on 13.4.2017, the petitioner was
declared juvenile. It further stipulates that
the matter was listed fifty-seven times
before the Juvenile Justice Board, and
seven
prosecution
witnesses
were
examined during this period. On 28.6.2019,
the Assistant Public Prosecutor filed an
application stating that the petitioner was
over sixteen years old at the time of the
commission
of
the
heinous
offence,
therefore, his psychological evaluation is
necessary in the facts- circumstances of the
case. The said application was allowed vide
order dated 5.7.2019 by the Principal
Magistrate,
Juvenile
Justice
Board,
Lalitpur, with a finding that in compliance
with section 15 of the Act1, the preliminary
assessment with regard to the mental and
psychological capacity and the ability to
understand the consequences of offence has
not been conducted by the Board. The
Board examined the report submitted by
the Panel of Experts and referred the
petitioner's case to the Children's Court.

VI. Conclusion