# BARUN CHANDRA THAKUR v. MASTER BHOLU & ANR

- **Citation:** [2022] 10 S.C.R. 595
- **Court:** Supreme Court of India
- **Decided:** 2022-07-13
- **Case number:** Criminal Appeal No. 950 of 2022
- **Bench:** Dinesh Maheshwari, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/barun-chandra-thakur-v-master-bholu-anr-35614
- **Pages:** 65

## Headnote

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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[2022] 10 S.C.R.
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 o

## Text

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[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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[2022] 10 S.C.R.
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
31⁄2 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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B
C
D
E
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602
SUPREME COURT REPORTS
[2022] 10 S.C.R.
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
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SCR 1087; Union of India v. IND-Swift Laboratories
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Mahabir Singh v. State of Haryana (2001) 7 SCC 148
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SCR 662; Sharat Babu Diguamarti v. NCT of Delhi
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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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B
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D
E
F
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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 1⁄2 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.
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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 reintegration, 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
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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 subsection (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
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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.