Summary
A 16-year-old Class XI student was accused of murdering a Class II boy at a Gurugram school. The Juvenile Justice Board, relying mainly on a psychologist's report giving only his IQ, decided under Section 15 of the Juvenile Justice Act, 2015 that he be tried as an adult, and the Children's Court affirmed. The High Court set both orders aside for denial of a fair opportunity and remanded. The Supreme Court dismissed the appeals of the complainant and the CBI. A preliminary assessment has lifelong consequences and demands reasonable opportunity; Section 99 confidentiality does not permit withholding the SIR and expert reports from the child, and the Rule 10(5) material should have been awaited. Mental capacity and ability to understand consequences are distinct. Expert assistance under the proviso to Section 15(1) is mandatory unless the Board includes a child psychology professional.
Issues
- What opportunity must be afforded to a child, and what material considered, before the Board makes a preliminary assessment under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 that a child of 16 to 18 be tried as an adult for a heinous offence.
- Whether the Board's power under the proviso to Section 15(1) to take the assistance of psychologists or other experts is directory or mandatory.
- Whether the High Court, in revision under Section 102, rightly set aside the preliminary assessment and remanded the matter.
Provisions considered
- Section 15 and proviso, with Sections 14, 18(3) and 19, Juvenile Justice (Care and Protection of Children) Act, 2015The Board must assess mental and physical capacity, the ability to understand the consequences of the offence and the circumstances of its commission within three months of first production; the proviso's 'may' is mandatory unless a Board member is a practising child psychology or psychiatry professional, and if such a Board declines expert help it must record reasons. (¶¶ 19, 22, 23, 45, 62, 67, 68, 76, 79)
- Section 99, Juvenile Justice (Care and Protection of Children) Act, 2015Confidentiality is meant to keep reports out of the public domain, not to deny the child, parents or guardian access to the SIR and expert reports; the Board and Children's Court misinterpreted it. (¶¶ 50, 51, 52, 53)
- Rules 10(5) and 10A, Juvenile Justice (Care and Protection of Children) Model Rules, 2016The Child Welfare Police Officer must produce statements and documents within a month of first production with copies to the child; the Board should have awaited this material rather than proceeding within a week. The Act overrides the CrPC, so the rule need not be read down. (¶¶ 31, 57, 58, 59, 61)
- Sections 24 and 102, Juvenile Justice (Care and Protection of Children) Act, 2015Trial as an adult exposes the child to life imprisonment, loss of the protection from disqualification and retention of records, so the assessment has serious civil consequences; the High Court's revisional power under Section 102 extends to legality and propriety of the assessment. (¶¶ 45, 46, 81)
Held
- An order of preliminary assessment has serious consequences lasting the child's whole life, so a reasonable opportunity must be afforded. Confidentiality under Section 99 confines reports to the parties but cannot be used to withhold the SIR and expert reports from the child or his guardian; thirty minutes to read a 35-page report, refusal of rebuttal evidence and cross-examination, and refusal to await the Rule 10(5) material denied that opportunity. (¶¶ 46, 52, 53, 54, 55, 57, 61)
- The psychologist's report addressed only the child's IQ, using tests designed for younger children, and recommended further assessment at a specialised institute; the Board erred in rejecting that recommendation without cogent reason and in treating mental capacity to commit the offence as equivalent to the ability to understand its consequences. (¶¶ 48, 49, 56, 63, 67, 83)
- The 'consequences' of the offence in Section 15 are plural and extend beyond the immediate harm to the victim to the long-term effects on the victim's family, the child and his family; a child of average IQ may know consequences intellectually yet lack the emotional competence to act on that knowledge, since cognitive and behavioural attributes continue developing into the early twenties. The circumstances of the offence are a further distinct inquiry. (¶¶ 65, 66, 68, 69, 70, 71, 72)
- Given the object of the Act, the Board's composition and the specialised nature of child psychology, 'may' in the proviso to Section 15(1) operates as mandatory: the Board must take the assistance of experienced psychologists, psycho-social workers or other experts unless at least one member is a practising professional with a degree in child psychology or psychiatry, and even then must record specific reasons for not doing so. (¶¶ 74, 75, 76, 77, 78, 79)
- The Court will not itself make the preliminary assessment but only examine whether it was carried out as required by law. Though not agreeing with all the High Court's reasoning or its direction for particular further tests, the Court agreed with the remand for fresh consideration after rectifying the denial of opportunity, leaving it to the Board and psychologist to decide whether any fresh examination is now of assistance as the child is over 21. (¶¶ 81, 84, 85)
- As the Act and Model Rules contain no guidelines for conducting the preliminary assessment, the Central Government and the National and State Commissions for Protection of Child Rights may consider issuing guidelines to assist the Boards; NIMHANS guidance notes were reproduced. (¶¶ 73, 85, 87)
Result
Both appeals dismissed; the High Court's order of 11.10.2018 remanding the preliminary assessment to the Board stands. Observations touching the merits are confined to deciding the appeals and will not influence the Board, Children's Court or High Court.