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Allahabad High Court · body

2022 DIGILAW 2021 (ALL)

Juvenile X v. State of U. P.

2022-12-21

JYOTSNA SHARMA

body2022
JUDGMENT : JYOTSNA SHARMA, J. 1. Heard Sri Arvind Kumar Mishra, learned counsel for the revisionist, Sri Ashok Kumar Rai, learned counsel for the respondent no. 2 and Sri O.P. Mishra, learned AGA for the State. 2. This Criminal Revision has been filed on behalf of the revisionist through his mother challenging the impugned orders dated 10.01.2022 passed by learned Additional Session Judge/Special Judge (POCSO Act), Court No. 1, Gorakhpur in Criminal Appeal No. 62 of 2021 as well as impugned order dated 04.03.2021 passed by Juvenile Justice Board, Gorakhpur in Case Crime No. 147 of 2019, under Sections 363, 366, 376, 342, 506 IPC, Section 3/4 of POCSO Act and Section 3(2)5 of SC/ST Act, Police Station-Barahalganj, District Gorakhpur by which a preliminary assessment inquiry was ordered to be conducted and that order was affirmed by the appellate court. 3. The relevant facts giving rise to this revision are as below: An FIR, Case Crime No. 0147 of 2019 under Sections 366 and 342 IPC, was registered against the juvenile and after investigation, charge-sheet was submitted under Sections 363, 366, 376, 342, 506 IPC, Section 3/4 of POCSO Act and Section 3(2)5 of SC/ST Act; an application was moved before the court concerned Special Judge (POCSO Act) to declare him ‘child in conflict with law’ stating therein that his recorded date of birth was 19.04.2002, therefore, he was merely 16 years 11 months and 15 days on the date of occurrence; his mother and another witness Ajay Kumar of Surya Bal Vidya Mandir, Gorakhpur were examined; the court noticed the fact that in the marksheet of high school, his date of birth was shown as 19.04.2002; other witness who too was examined on behalf of the juvenile deposed that as per the record of this school, his date of birth was 01.07.2003; the court gave an opinion that in both the contingencies, the applicant was below 18 years, therefore, he was declared a ‘child in conflict with law’ and the file was transmitted to the Juvenile Justice Board by order dated 20.10.2020; an application by the informant was, thereafter, moved before the Juvenile Justice Board submitting that the juvenile was admittedly above 16 years of age, hence, an inquiry under Section 15 of the Juvenile Justice Act was incumbent to be conducted. The Juvenile Justice Board ordered for enquiry on 04.03.2021 and that order was affirmed in appeal on 10.01.2022. This revision has been filed challenging the aforesaid orders. 4. Both the sides were heard and perused the papers. 5. When the question of applicability of Section-15 of the Juvenile Justice Act, 2015 was raised, the Juvenile Justice Board had to deal with his two dates of birth. Firstly, 19.04.2002 as shown in his high school marksheet. Secondly, 01.07.2003 as shown in the papers of the school first attended by him. The Juvenile Justice Board was of the opinion that the date of birth as given in high school certificate was reliable and thus he was adjudged as above 16 years of age. Consequently, an order for conducting preliminary assessment under Section 15 of the Juvenile Justice Act, 2015 was passed on 04.03.2021. In the appeal filed on behalf of the minor, the appellate court was of the view that the genuineness of the high school marksheet was verified by the concerned police station and that his mother also stated that his date of birth was 19.04.2002, hence, that date of birth should be relied upon. 6. The impugned orders have been challenged specifically on two grounds. Firstly, that the Principal of the institution which he attended first, was examined and he proved his date of birth, on the basis whereof his age came merely 15 years 9 months, hence, there was no reason to apply provisions of Section-15 of the Juvenile Justice Act, 2015 and conduct a preliminary assessment; therefore, the order for inquiry is illegal and void. Secondly, as the provisions of law required that preliminary assessment must be carried out within 3 months of first production of a ‘child in conflict with law’ before the court and in case this inquiry is conducted now, naturally the results will be very different, as he has attained sufficient maturity by now. Any such inquiry at this stage is bound to create prejudice against him. Therefore, the impugned orders are liable to be set aside. 7. I went through the papers on record which include the copy of the statement given by mother of the juvenile. It may be conspicuously noted that his mother stated on oath that his correct date of birth is 16.04.2002. Nothing came in her cross examination to raise any suspicion on her statement. 7. I went through the papers on record which include the copy of the statement given by mother of the juvenile. It may be conspicuously noted that his mother stated on oath that his correct date of birth is 16.04.2002. Nothing came in her cross examination to raise any suspicion on her statement. She fairly admitted that it was his grandmother who went for his admission in primary school and that neither she (mother) nor his father went for his admission. She has declined the suggestion that his date of birth was recorded on the basis of guess-estimate. The statement of clerk from primary school where he admittedly studied in Class 1st onwards is on record. He has stated that in the papers of that school, his date of birth was mentioned as 01.07.2003 as told by his guardian and on the basis of how old he looked. Admittedly, no birth certificate or any other paper was produced before the school at the time of his admission in Class 1st. No reliable evidence or reasons have been unveiled before me by revisionist to place reliance on this particular date of birth. No grounds have been avowed before me to justify giving precedence to date of birth recorded in papers of his primary school over date of birth in other documents. In such circumstances, the courts below cannot be faulted for relying on date of birth given by his mother in her statement on oath and further corroborated by the entry of date of birth in High School papers. 8. Second contention relates to legality of initiating the inquiry under Section 15 of the J.J. Act after lapse of prescribed time period. 8. Second contention relates to legality of initiating the inquiry under Section 15 of the J.J. Act after lapse of prescribed time period. It shall be useful to reproduce the relevant provisions of Section-15 of the Juvenile Justice Act, 2015 which is as below: “(1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence and may pass an order in accordance with the provisions of subsection (3) of section 18: Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts. Explanation: For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. (2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974): Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101: Provided further that the assessment under this section shall be completed within the period specified in section 14.” Section 14(3) of the Juvenile Justice Act, 2015 provides that a preliminary assessment in case of heinous offences under Section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board. 9. The contention of the revisionist, on the basis of the above provisions of law is that as a mandatory provision has been given as aforesaid providing for conduct of inquiry within the period of three months, hence, no inquiry may proceed after lapse of above time period. 9. The contention of the revisionist, on the basis of the above provisions of law is that as a mandatory provision has been given as aforesaid providing for conduct of inquiry within the period of three months, hence, no inquiry may proceed after lapse of above time period. In my opinion, the language of the above provision, undoubtedly fixes an outer limit for conduct of inquiry and is worded in a mandatory language, however, it is nowhere provided in the Act that in case for some reason, the inquiry could not proceed or concluded within that period what can be the consequences thereof. It is nowhere provided that in such an eventuality, the proceeding shall stand vitiated or that in such case the juvenile shall be tried as one below 16 years of age. 10. In my view, the provisions lays stress on the fact that as far as possible the inquiry under Section 15 of the Juvenile Justice Act, 2015 shall be conducted within the above time period. This time period, in my view has been fixed by the legislature keeping in mind the whole of the scheme of the Juvenile Justice Act, 2015, through which a broader vision towards the juveniles or child in conflict with law runs. It may also be noted that Section 14(2) of the J.J. Act, 2015, carrying forward the same spirit, fixes an outer limit for completion of inquiry. Similarly time periods have been fixed for inquiries under Sections 17 and 18 of the J.J. Act, 2015 but it is nowhere provided that in case such a time limit could not be adhered, the proceedings against the juvenile shall be dropped. In my view, the language of Section 14(3), though couched in a mandatory manner, cannot be construed in a way so as to thwart or defeat the very purpose of the statute. The inquiry whether under Sections 15, 17 or 18 of the Act, have to reach to their logical ends, hence, the arguments that inquiry cannot be conducted beyond the statutory time period fixed under Section 15 has no legs to stand. 11. The second question arises is how the court shall have to proceed in case the inquiry under Section 15 is being conducted after a lapse of prescribed time period or even longer. 11. The second question arises is how the court shall have to proceed in case the inquiry under Section 15 is being conducted after a lapse of prescribed time period or even longer. It appeals to reason that when there is a long gap probably the juvenile may have attained sufficient maturity. It may be noted that in Barun Chandra Thakur vs. Master Bholu and Another in Criminal Appeal No. 950 of 2022 decided on 13.07.2022, the Apex Court has directed that when a preliminary assessment under Section 15 of the J.J. Act, 2015 is undertaken, assistance of expert psychologist/psychiatrist, psycho social workers or other experts has to be taken mandatorily. In my view, experts are the persons, who, while examining the juvenile for the purpose of preliminary assessment, can take care of the fact that they have a juvenile before them, who has added certain months or years to his mental age by lapse of time. No doubt the appellate Court/Juvenile Justice Board has to tread very carefully where such an eventuality has arisen but it may never be taken to mean that the preliminary assessment is a step which can be skipped over by the Juvenile Justice Board. 12. In view of the above, no interference is required in the order, hence, it is dismissed.