Research › Search › Judgment

Punjab High Court · body

2024 DIGILAW 923 (PNJ)

Aarif v. State of Haryana

2024-05-28

NIDHI GUPTA

body2024
JUDGMENT Nidhi Gupta, J. CRM-39770-2023 This is an application under Section 5 of Limitation Act, read with Section 482 Cr.P.C. for condonation of delay of 26 days in filing the present petition. After going through the contents of the application, which is supported by affidavit of the applicant/petitioner, the same is allowed subject all just exceptions, and delay of 26 days in filing the present petition is condoned. Main Case Challenge in the present petition is to the orders dated 25.05.2023 passed by learned Special Court/ASJ (Fast Track), POCSO, Palwal, dismissing the appeal filed by the present petitioner under Section 101(2) of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter to be referred as 'the JJ Act') laying challenge to the order dated 24.04.2023 passed by learned Principal Magistrate, Juvenile Justice Board, Palwal, whereby it has been directed that the petitioner will be tried as an adult. 2. Learned counsel submits that as per the complaint given by the mother of the victim (complainant) to the police, it has been alleged that on 29.03.2022 at about 8:00 PM daughter of the complainant was out of her house when present petitioner (Aarif) lured and abducted her. On the basis of the said statement of the complainant present FIR No.66 dated 30.03.2022 was registered under Sections 363 and 366A IPC at Police Station Bahin, District Palwal (Annexure PI) against the petitioner. 3. Learned counsel submits that in actual fact the petitioner and the alleged victim were in a consensual relationship. As such, the allegations made in the FIR are patently untrue. However, be as it may, at the time of commission of alleged offence the petitioner was a juvenile/child-in-conflict with law. The date of alleged incident is 29.03.2022. Date of birth of the petitioner is 13.03.2005. As such, on the date of incident, the petitioner was 16 years 11 months and 14 days old. However, without ascertaining the age of the petitioner he was arrested on 17.6.2022, and lodged in jail with hard-core criminals for 7 months. 4. Thereafter, upon an application made by the petitioner the learned Special Court/ASJ (Fast Track) POCSO, Palwal, vide order dated 02.01.2023 (AnnexureP5/R6) declared the petitioner a juvenile. However, without ascertaining the age of the petitioner he was arrested on 17.6.2022, and lodged in jail with hard-core criminals for 7 months. 4. Thereafter, upon an application made by the petitioner the learned Special Court/ASJ (Fast Track) POCSO, Palwal, vide order dated 02.01.2023 (AnnexureP5/R6) declared the petitioner a juvenile. Consequentially, the petitioner was produced before the Juvenile Justice Board on 04.01.2023, and a preliminary assessment of the petitioner was conducted under Section 15(1) of JJ Act, in respect of which report dated 28.03.2023 (Annexure R7) was submitted. Thereafter, psychological assessment of the petitioner was made on 19.04.2023 (Annexure R8), on the basis of which it was recommended that the petitioner be tried as an adult as it was opined that he has sufficient understanding of the consequences of his offence. Learned Counsel contends that as per provision of Section 15 of the JJ Act, it is required that the above said assessments of the petitioner be made within a period of three months; however, in the present case, this was done after a period of 10 months, instead of within the stipulated time. Ld. Counsel states that even no copy of the reports was supplied to the petitioner. It is accordingly submitted that the impugned orders are vitiated on this short ground and therefore deserve to be set aside, and the petitioner cannot be tried as an adult, as the process of law has not been complied with. 5. Learned counsel submits that, notwithstanding the above legal requirement, the appeal filed by the petitioner has also been dismissed by the learned Additional Sessions Judge, Palwal, vide order dated 25.05.2023 by observing that the preliminary assessment of the petitioner is to be done at the time of commission of offence and the impact of custody on the petitioner is not to be seen under Section 15 of the JJ Act. It is further contended that the impugned orders have been passed without any finding as required under section 15 of the JJ Act. 6. In support, learned counsel relies upon judgment of the Hon'ble Supreme Court in "X v. State of U.P. & Another" Law Finder Doc ID #2390588. 7. Per contra, learned counsel for the respondent State counters the above submissions made on behalf of the petitioner and submits that at the time of arrest, it was the petitioner himself who had disclosed his age to be 19 years. 7. Per contra, learned counsel for the respondent State counters the above submissions made on behalf of the petitioner and submits that at the time of arrest, it was the petitioner himself who had disclosed his age to be 19 years. It is contended that it was in this view of the fact that the petitioner was arrested as an adult and therefore kept in custody in jail. 8. It is further contended that although the petitioner was arrested on 17.06.2022, however, for the very first time, the application (Annexure R5) seeking declaration as a juvenile was moved after considerable delay by the petitioner only on 17.11.2022. It is accordingly prayed that the present petition be dismissed. 9. No other argument is raised on behalf of the parties. 10. I have heard learned counsel for the parties and perused the case file in minute detail. 11. For a proper appreciation of the controversy at hand, it will be useful to briefly recapitulate the factual scenario in chronological order. A perusal of the record of the case reveals that, as per the complaint given by the mother of the victim, it was alleged that on 29.03.2022 at about 8:00 PM victim/daughter of the complainant was out of her house when the present petitioner (Aarif) lured and abducted her. On the basis of the above-mentioned statement of the complainant, present FIR No.66 dated 30.03.2022 was registered under Sections 363 and 366A IPC at Police Station Bahin, District Palwal (Annexure P1) against the petitioner and one Aqueel. 12. It is the case of the petitioner that the petitioner and the victim were in a consensual relationship. As per the record, after her alleged abduction on 29.03.2022, the victim was recovered from Punhana bus stand by the police on 10.04.2022; and pursuant thereto the first statement of the victim was recorded under section 164 Cr.P.C. on 11.04.2022 (Annexure P2), wherein she has stated as follows: - "Stated that I left my home and went to Nuh. I went on 29.03.2022 and came back last night on 10.04.2022. I left my home with my own free will and went along with Asrif. I have come back of my own free will only and he has done nothing wrong with me and nor anything else. Now, I want to go to my home." 13. I went on 29.03.2022 and came back last night on 10.04.2022. I left my home with my own free will and went along with Asrif. I have come back of my own free will only and he has done nothing wrong with me and nor anything else. Now, I want to go to my home." 13. On 11.05.2022, an application (Annexure P3) was moved by the complainant stating therein that the victim is a minor and that her statement under Section 164 Cr.P.C. be recorded again. Along with the said application, the complainant had supplied a birth certificate of the victim as proof of the minority of the victim. However, it may be noted that the said birth certificate was issued in the year 2022 itself; and the said application was moved by the complainant 42 days after the registration of the FIR. 14. Thereafter, a second statement of the victim was recorded under Section 164 Cr.P.C. 24.05.2022 wherein the victim supported the prosecution case. In pursuance to this second statement under Section 164 Cr.P.C., a supplementary final report was presented under section 173 Cr.P.C. on 26.01.2023, whereby offence under Sections 376, 120B of IPC and 4 of POCSO Act were added to the present FIR. Thereafter, the petitioner was arrested on 17.06.2022; and admittedly, without verifying his age in accordance with law, the petitioner was not taken to a Juvenile Board, but was lodged at District Jail, Faridabad in the company of hardcore criminals. 15. It has been contended on behalf of the State Counsel that at the time of arrest, the petitioner had himself disclosed his age to be 19 years. Flowerer, the said contention of the learned counsel for the respondent does not impress this Court, as, first and foremost, counsel for the respondent-State has failed to produce the relevant Arrest memo in this regard, wherein it would have been recorded that the petitioner had stated his age to be 19 years. Moreover, even if that be so, it was the duty of the Investigating Officer to verify the age of the petitioner before taking him into custody. Moreover, even if that be so, it was the duty of the Investigating Officer to verify the age of the petitioner before taking him into custody. Clearly, therefore, in the present case, the police has failed to comply with the requirements of Section 94 of the JJ Act as a result of which the petitioner has had to spend almost 7 months from 17.06.2022 to 09.01.2023 (the petitioner was released on bail vide order dated 09.01.2023 (AnnexureP4), passed by the learned Principal Magistrate, JJB, Palwal), in jail in the company of hard-core criminals, which directly defeats the objectives and purpose of the JJ Act. 16. In the meantime, as the petitioner was a juvenile at the time of the incident, an application dated 17.11.2022 (Annexure R5) was filed on his behalf before learned Special Court/ASJ (Fast Track) POCSO, Palwal, praying for permission to declare the petitioner as juvenile; and permission to transfer the case to the Court of Principal Magistrate, Juvenile Justice Board; and to transfer the petitioner from District Jail Palwal to Observation Home, Faridabad. On the basis of evidence and material produced before it, the learned Special Court/ASJ (Fast Track) POCSO, Palwal, vide order dated 02.01.2023 (Annexure R6) directed that the petitioner be declared as a juvenile. The said direction was issued on the basis of a determination made in respect of the date of birth of the petitioner; which was found to be 13.03.2005 on the basis of his school record - the same being the admission and withdrawal register (Ex.AWl/1); copy of admission form (Ex.AWl/2); and a copy of school leaving certificate (Ex.AWl/3) which were duly proved by AW1 and AW2 on record, and as per which the date of birth of the petitioner was 13.05.2005. It was thus, found that the petitioner was 16 years, 11 months, and 14 days old on the date of occurrence. 17. In view of the above facts, the file was sent back to the Principal Magistrate, Juvenile Justice Board, Palwal, for conducting preliminary assessment under Section 15(1) of JJ Act with regard to mental and physical capacity of the petitioner to commit the offence, as also his capacity to understand the consequences of the offence committed. 18. 17. In view of the above facts, the file was sent back to the Principal Magistrate, Juvenile Justice Board, Palwal, for conducting preliminary assessment under Section 15(1) of JJ Act with regard to mental and physical capacity of the petitioner to commit the offence, as also his capacity to understand the consequences of the offence committed. 18. At this stage, it is imperative to note that while directing as above, the learned Special Court/ASJ (Fast Track) POCSO, Palwal, further observed in the said order dated 02.01.2023 (Annexure R6) that the petitioner had been arrested by the Investigating Officer without verifying his date of birth; and thus, the said 10 had committed dereliction of his duty and had not complied with the mandatory requirements of the JJ Act. As such, the learned Special Court/ASJ (Fast Track) POCSO, Palwal recommended that a departmental inquiry be conducted against the said Investigating Officer. 19. Pursuant to the declaration of the petitioner as a juvenile, vide order dated 02.01.2023 (Annexure P5/R6), the petitioner was produced before the JJ Board on 04.01.2023; whereupon it was directed that a preliminary assessment of the petitioner be made as per sections 14 and 15 of the JJ Act. The petitioner was then granted bail by the Juvenile Justice Board by order dated 09.01.2023 (Annexure P4). Thereafter, the assessment of the petitioner was done by the Board vide Report dated 28.03.2023 (Annexure R7); and in compliance of the first proviso an assessment by a psychologist was also made in respect of which report dated 19.04.2023 (AnnexureR8) was submitted. On the basis of these reports the Juvenile Justice Board passed order dated 24.04.2023 (Annexure R8), directing that the petitioner be tried as an adult. In appeal, the learned Additional Sessions Judge, Palwal, vide impugned order dated 25.05.2023 (Annexure R8) affirmed the order of the Board, to treat the petitioner as an adult. Hence, present petition. 20. Before proceeding further, it will be useful to refer to the relevant Section 15 of the JJ Act as below:- "15. Preliminary assessment into heinous offences by Board. In appeal, the learned Additional Sessions Judge, Palwal, vide impugned order dated 25.05.2023 (Annexure R8) affirmed the order of the Board, to treat the petitioner as an adult. Hence, present petition. 20. Before proceeding further, it will be useful to refer to the relevant Section 15 of the JJ Act as below:- "15. Preliminary assessment into heinous offences by Board. - (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (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". 21. A bare reading of the above provision shows that as per Section 15(1) it is stipulated that in case of heinous offence, a preliminary assessment has to be made by the Juvenile Justice Board of the child in conflict with law with regard to: a) his mental and physical capacity to commit such offence; b) his ability to understand the consequences of the offence; and c) the circumstances in which he allegedly committed the offence. The first proviso permits assistance of an experienced psychologist in order to make this assessment. The first proviso permits assistance of an experienced psychologist in order to make this assessment. Accordingly, in the present case, in conformity with the above provision an assessment of the petitioner was made by the Juvenile Justice Board in respect of which an Assessment Report dated 28.03.2023 (Annexure R7) was submitted; and an assessment was also made by the psychologist in respect of which report dated 19.04.2023 (Annexure P6), was submitted. The Assessment Report of the JJB dated 28.03.2023 (Annexure R7) reads as follows:- "Aarif son of Majid, aged 18 years, r/o Kot Assessment in front of Juvenile Justice Board, Palwal ON SA Ql. What is your name? Ans. My name is "Aa". Q2. What does your father do? Ans. My father is an agriculturist and he has 3 acres of land. Q3. Who else are in your family? Ans. We are 7 brothers and one sister. Q4. What standard have your studied upto? Ans. I have studied upto 9th class. Q5. How does your family subsist? Ans. My brothers are drivers and one younger to me is also learning tractor repairing work. Q6. Which crop is there in your fields now? Ans. Wheat in two acres and mustard in one acre. Q7. What do you do with the produce of agriculture? Ans. Wheat is used to eat at home and mustard is sold out. Q8. Where are you sitting today? Ans. In the Court. Q9. Is the FIR registered against you is correct? Ans. It is wrong. Q10. What is crime? Ans. Once the case is over, then I shall complete my studies. Qll. In which country do you live? Ans. Haryana Q12. What would you do, if someone gives you Rs. 500/- and ask you to commit theft in the neighbour? Ans. I would not commit theft. 0.13. Tell us two good habits of you? Ans. Studying and not to indulge infighting. 014. How far is your home from Palwal Court? Ans. 30 Km Q15. How have you come to the Court today? Ans. By a bike. Q16. Do you have a license to drive a bike? Ans. I do not have a license and I have RC Q17. Suppose you purchase some articles from a shop for Rs. 365 and you give a note of 500 to the shopkeeper, how much money should you get back? Ans. Rs. 250/- Q18. Ans. By a bike. Q16. Do you have a license to drive a bike? Ans. I do not have a license and I have RC Q17. Suppose you purchase some articles from a shop for Rs. 365 and you give a note of 500 to the shopkeeper, how much money should you get back? Ans. Rs. 250/- Q18. How many meters are there in one kilometer. Ans. 100. Q19. Tell us the name of the Prime Minister of our country. Ans. I do not know, again said Manohar Lai Khattar Q20. How many days are there in one year. Ans. 360. Q21. What do you like to eat in food? Ans. ROTI Q22. How are you feeling after you implication in this case. Ans. Tension remains on my mind. Q23. What do you want in connection with case? Ans. I want the case to be finished and I want to start my studies. Q24. What are you hobbies? Ans. I have no hobbies. Q25. Do you use a mobile? Ans. No. I do not have a mobile. RO&AC "Aa" Sd/- Meeta Kohli Sd/- (Kamlesh) PMJJB, Palwal Juvenile Justice Board Member 28.3.2023 28.3.2023 Sd/- (Surender Singh) Juvenile Justice Board Member 28.03.2023" 22. The Assessment Report of the Psychologist dated 19.04.2023 (Annexure R8), reads as follows: - "Name - 'A' Father Name - Sh. Majid Sex- Male Age -18 years Marital Status - Unmarried Date of Assessment-19.04.2023 Occupation- Study Socio-Economic Status- Low Education- 9th Pass Pt appearance was fully hygienic. Pt level of consciousness was fully alert. Pt dressed appropriately. Pt attitude towards examinee was fully co-operative. Proper eye to eye contact was maintained. On speech parameters pt. was normal. In pt language-mood was upset Pt. orientation to time, place and person was normal. Good rapport level was established. This assessment was done in running court settings. Final, at present in my opinion pt. can able to understand all the consequences of this offence." 23. A bare perusal of the above reports shows that the same are mechanical, perfunctory, apparently without any application of mind; and, most importantly, there is no report/information whatsoever with regard to the three parameters/ingredients stipulated in Section 15(1) i.e. a) the mental and physical capacity to commit such offence; b) his ability to understand the consequences of the offence; and c) the circumstances in which he allegedly committed the offence. The reports are utterly silent in respect of the above issues an assessment of which is necessary in order to determine whether the petitioner/accused is to be tried as an adult or as a juvenile. On the contrary, the reports only talk of the more unimportant and relatively irrelevant aspects such as the appearance of the petitioner. Needless to say, any order passed on the basis of such incomplete, rather illegal reports, cannot be sustained. 24. In making the above assessment, even the Guidelines of the National Commission for Protection of Child Rights for conducting preliminary assessment under Section 15 of the Act, issued in pursuance to landmark judgment of the Hon'ble Supreme Court in case of "Barun Chandra Thakur v. Master Bholu and another" Criminal Appeal No.950 of 2022; 2022 SCC Online SC 870, have not been followed. As per the said Guidelines, the following suggestive questions are required to be asked from the child in conflict with law: - "In addition to the above points, following are the suggestive questions that may be covered in the report that may provide useful insight and guidance as to the manner in which preliminary assessment may be conducted i. whether the child has himself been a victim of any offence in the past; ii. if yes, what is the nature of offence iii. whether the child has ever been put to extreme mental trauma; iv. whom does a child see as their role model; v. what are child's ambitions in life; vi. whether the child is associated with any group formed by adults; vii. whether the child is the control of adults, or group of adults, and if so, the Board shall consider the aspect whether independent of the influence of the adults, the child may not have committed the offence; viii. whether the child suffers from any kind of disability as listed in Rights of Persons with Disabilities Act, 2016; specify ix. whether the child is prone to taking drugs or alcohol; x. whether the child is under the influence of peer groups or associates with those who present risk of harm e.g. sexual offenders, drug peddlers etc. or criminals; xi. whether the child has suicidal tendencies or of harming own self; xii. whether the child is prone to taking drugs or alcohol; x. whether the child is under the influence of peer groups or associates with those who present risk of harm e.g. sexual offenders, drug peddlers etc. or criminals; xi. whether the child has suicidal tendencies or of harming own self; xii. whether the child has been recruited or used or forced by any non-State, self-styled militant group or outfit declared as such by the Central or the State Government and whether such child was in a position to desist influences and pressures excreted by such actors in the given circumstances of his or her life etc." 25. The present reports are abysmally un-informative in respect of the above vital ingredients and issues, which are essential for a proper assessment. In fact, it will not be incorrect to say that in the present case, no assessment or determination has been made of the necessary factors. There is no finding on the three required ingredients. Only a very superficial, mechanical, and almost irrelevant assessment has been made. The above-referred format for questions to be asked by the Board and the Psychologist, issued by the National Commission for Protection of Child Rights, in compliance of direction of Hon'ble Supreme Court in Barun Chandra (supra), has not been followed. There is no finding as to in what circumstance the petitioner committed the crime; as to what was the state of mind of the petitioner; and even regarding the petitioner's jail term with criminals and as to how that affected the mindset of the petitioner. As such, it is my view, that no proper assessment of the petitioner was made as required under law. 26. In this situation, reference may be made to judgment of the Jharkhand High Court in "Raj Kumar Turi v. State of Jharkhand" Law Finder Doc ID # 2288043, wherein, in similar circumstances, where no proper assessment of the CCL was made, it was held as follows:- "4. Aggrieved from this order, the appeal was preferred under section 101 of JJ Act, 2015 on behalf of the CCL-petitioner herein, which was registered Criminal Appeal No. 34 of 2022. This criminal appeal was dismissed by the learned Additional Sessions Judge-I-cum-Children's Court, Sahibganj vide order dated 03.12.2022. Aggrieved from this order, the appeal was preferred under section 101 of JJ Act, 2015 on behalf of the CCL-petitioner herein, which was registered Criminal Appeal No. 34 of 2022. This criminal appeal was dismissed by the learned Additional Sessions Judge-I-cum-Children's Court, Sahibganj vide order dated 03.12.2022. From the perusal of the order passed by the learned appellate court dated 03.12.2022 it is found that the inquiry no.14 of 2022 dated 17.08.2022 conducted by the learned JJ Board, Sahibganj the questionnaire of preliminary assessment made by the Board, Sahibganj is given hereunder:- Question No. Question to the CCL Answer of the CCL 1. What is address of your home? Dhamni, P.S.-Sundar Pahari, District-Godda 2. In which class, do you study? I have never been to School. 3. What is your date of birth? I do not have knowledge of this. 4. In the course of playing if your friend gets injured then where you will take to him ? To the Doctor 5. Who arrests? Police does arrest 6. Did police arrest you? Yes, they had taken me from my residence 7. Whether one should go for intoxication ? Should not be done. 8. On the bank of which river Sahibganj is situated? I do not know. 9. Who is pick-pocket and what they do? I do not know. 10. In which direction sun rises? I do not know. 11. Which religion you follow? I follow mother Durga. 12. What is consequence of committing offence? I do not know. 13. Whether one should do molestation or force against any women or girl or not? It should not be done 14. If somebody commits rape with any girl then what punishment should be given to him? He should be sent to the jail. XXX 16. From the questionnaire, which was made by the learned JJ Board it is found that there is no question in regard to the circumstances under which the alleged offence was committed. The physical capacity to commit the offence, mental capacity to commit the offence, only the ability to understand the consequence of the offence which is in question no. 13 and 14 has been based by the JJ Board holding the child to be tried as an adult. While reaching on the conclusion the holistic evaluation of the child was not made and the assistant of the experienced psychologists or psycho-social worker was not taken." 27. 13 and 14 has been based by the JJ Board holding the child to be tried as an adult. While reaching on the conclusion the holistic evaluation of the child was not made and the assistant of the experienced psychologists or psycho-social worker was not taken." 27. In the above case, as in the present case, in the Questionnaire, no question was found with regard to the circumstances under which the alleged offence was committed; and therefore, holistic evaluation of the child was not made. 28. Similarly, the Chhattisgarh High Court in case of "Juvenile in conflict with law v. State of Chhattisgarh" Law Finder Doc ID #2119543, relevant part of which is reproduced hereinbelow: - "18. Reverting back to the instant case, as has been stated above that the proviso to Section 15 enables the Board to take assistance of an experienced psychologist, psychiatrist or psycho-social worker or any other expert to make preliminary assessment of the juvenile with regard to assess 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, but in the instant case, aforesaid provision has not been complied with and the impugned order has been passed by the Board only on the basis of social investigation report prepared by the counselor, which is based on the conversation made by him with the child and facts and circumstances of the case. 19. 19. A perusal of the order of the Board as well as the Children's Court shows that while passing impugned orders, they have only considered the age of the applicant-juvenile and the manner in which alleged crime has been committed by him, whereas the Children's Court has observed that, what was the mental status of the applicant-juvenile and his state of mind at the time of commission of crime has not been stated in the social investigation report, despite that, without taking assistance of any experienced psychologist or other experts, they have passed impugned order and no such finding has been given by the Board or Children's Court so as to reach to the conclusion that the applicant-juvenile was well aware about the consequence of the offence committed by him and his mental and physical capacity was such that he was well aware about the nature of offence and consequence thereof , as has been considered by Hon'ble Apex Court, in case of CBI v. Master Bholu and Anr.(supra). Even in social investigation report, it has been mentioned that at the time of incident, the applicant-juvenile had consumed liquor, but the fact and circumstances, in which alleged offence has been committed, have also not been considered by the Board or Children's Court. Even Counselor has also not been examined by the Board so as to know about his qualification and knowledge about child psychology and child psychiatry." (Emphasis added) 29. The above judgment held that the Children's Court has only considered the age of the juvenile and the manner in which alleged crime was committed by him, but in the Social Investigation Report, it was nowhere mentioned as to what was the mental state of the juvenile and his status at the time of commission of crime. As such, the impugned order in the said case was set aside. 30. As such, the impugned order in the said case was set aside. 30. Furthermore, in making the Preliminary Assessment, the importance and the necessity to understand the meaning of the word 'consequences' used in Section 15 i.e. 'the ability to understand the consequences of the offence' as also to determine 'the circumstances in which the offence was committed', was emphasised by the Allahabad High Court in "X v. State of U.P. & Another" Law Finder Doc ID # 2390588, wherein it was held that 'consequences' would not only include consequences of the offence, but also far-reaching consequences in future; and it would not only have consequence on the victim, but also on the family of the victim, on the child, and his family. Relying extensively upon the landmark judgment of the Hon'ble Supreme Court in case of Barun Chandra (supra), the Allahabad High Court held as follows: - "11. The Apex Court in Barun Chandra Thakur v. Master Bholu and Another 2022 SCC Online SC 870 after dealing the scope of preliminary assessment of the Juvenile with regard to physical and mental capacity to commit the alleged offence, it has been observed in paragraph nos. 68, 70, 71, 72, 8c 73 as under: "68. The language used in section 15 is "the ability to understand the consequences of the offence". The expression used is in plurality i.e., "consequences" of the offence and, therefore, would not just be confined to the immediate consequence of the offence or that the occurrence of the offence would only have its consequence upon the victim but it would also take within its ambit the consequences which may fall upon not only the victim as a result of the assault, but also on the family of the victim, on the child, his family, and that too not only immediate consequences but also the far-reaching consequences in future. Consequences could be in material/physical form but also affecting the mind and the psychology of the child for all times to come. The consequences of the offence could be numerous and manifold which cannot be just linked to a framework; and, for this purpose, the overall picture as also future consequences with reference to the facts of the case are required to be consciously analysed by the Board . 70. A child with average intelligence/IQ will have the intellectual knowledge of the consequences of his actions. 70. A child with average intelligence/IQ will have the intellectual knowledge of the consequences of his actions. But whether or not he is able to control himself or his actions will depend on his level of emotional competence. For example, risky driving may result in an accident. But if emotional competence is not high, the urge for thrill seeking may get the better of his intellectual understanding. 71. Children may be geared towards more instant gratification and may not be able to deeply understand the long-term consequences of their actions. They are also more likely to be influenced by emotion rather than reason. Research shows that young people do know risks to themselves. Despite this knowledge, adolescents engage in riskier behaviour than adults (such as drug and alcohol use, unsafe sexual activity, dangerous driving and/or delinquent behaviour). While they do consider risks cognitively (by weighing up the potential risks and rewards of a particular act), their decisions / actions may be more heavily influenced by social (eg. peer influences) and/or emotional (eg. impulsive) tendencies. In addition, the lack of experience coupled with the child's limited ability to deeply understand the long-term consequences of their actions can lead to impulsive / reckless decision making. 72. Coming to the last count, i.e., the assessment regarding the circumstances in which the offence is alleged to be committed is again an attribute which could have many factors to be considered before such an assessment could be made. There could be a number of reasons for a person to commit a crime. It could be enmity, it could be poverty, it could be greed, it could be perversity in mind and many others. There could be coercion. There could be threat to one's life and property. There could be allurement in terms of the material and physical gains. Crime could be committed on account of stress or depression also. It could be on account of the company that one keeps. One could commit crime in order to help his family and friends. All these and many more could be termed as circumstances leading to the commission of crime. 73. The preliminary assessment has been a question of debates, analysis and research. The National Law University, Orissa, in collaboration with Unicef made a detailed study on the practice of preliminary assessment under the Act, 2015. All these and many more could be termed as circumstances leading to the commission of crime. 73. The preliminary assessment has been a question of debates, analysis and research. The National Law University, Orissa, in collaboration with Unicef made a detailed study on the practice of preliminary assessment under the Act, 2015. To the said report is annexed as Annexure 4, the Guidance Notes on Preliminary Assessment Reports for Children in Conflict in Law developed by the Department of Child and Adolescent Psychiatry, Nimhans, [National Institute of Mental Health and Neurosciences], Bengaluru. It would be worth while to mention here that Nimhans, Bengaluru is one of the premier institutions involved in the research and study of psychology, and is a world renowned centre for mental health, neurosciences and allied fields. The contents of the Guidance Notes referred to above are reproduced below "Guidance Notes on Preliminary Assessment Report for Children in Conflict with Law Department of Child & Adolescent Psychiatry, NIMHANS, Bengaluru The preliminary assessment uses information from the detailed psychosocial and mental health assessment (that is done first) and presents that information as outlined below. A. Mental & Physical Capacity to Commit Alleged Offence The child's ability to make social decisions and judgments are compromised due to: (i) Life skills deficits (emotional days regulation/ difficulty coping with peer pressure/ assertiveness & negotiation skills /problem solving/ conflict resolution/ decision making). (ii) Neglect / poor supervision by family/poor family role models (iii) Experiences of abuse and trauma (iv) Substance abuse problems (v) Intellectual disability (vi) Mental health disorder/ developmental disability (vii) Treatment/ interventions provided so far Guidance Notes For this section, the professional filling out the preliminary assessment form is simply required to mark off against each item (a tick mark to indicate 'yes' and an X mark to indicate 'no') whether or not the child is compromised in this particular area. The information is drawn from relevant sections of the detailed psychosocial and mental health proforma, which contain information on: how a child's abilities to make appropriate social decisions and judgements (which translate into actions and behaviours) have been affected by the child's life circumstances and mental health or developmental problems. For item (i) on life skills deficits, refer to Section 6, 'Life Skills Deficits and Other Observations of the Child' and sub-Section 6.1. on 'Life Skills Deficits'. For item (ii), refer to Section 2, sub- Section 2.1. For item (i) on life skills deficits, refer to Section 6, 'Life Skills Deficits and Other Observations of the Child' and sub-Section 6.1. on 'Life Skills Deficits'. For item (ii), refer to Section 2, sub- Section 2.1. on 'Family Issues Identified'. For item (iii) on experiences of abuse and trauma, refer to Section 3, 'Trauma Experiences: Physical, Sexual and Emotional Abuse Experiences'. For items (iv) and (vi) on substance abuse problems and mental health disorders/ developmental disability, refer to Section 5, 'Mental Health Concerns'. For item (v) on intellectual disability, you may rely on your judgement based on your interaction with the child during the entire process of administering the psychosocial and mental health proforma if the child was unable to respond to most questions or responded 2 in an age-appropriate manner (like a younger child would, demonstrating little understanding of many things asked or discussed), then you may suspect that he/she has intellectual disability. Following this, it would be useful and necessary to confirm this through relevant IQ testing conducted by psychologists located in mental health facilities). For item (vii), you may have enquired from the child, during the assessment, about whether he/she has received any professional assistance or treatment for any mental health issues/ family problems or life skills deficits that he/she has. (Generally, children in the Observation Home have never received any treatment or interventions for their problems). In actual fact, everyone, except someone with serious physical disability (the type that severely impacts locomotor skills) or with intellectual disability, has the mental and physical capacity to commit offence. So, to ask whether a given child has the mental and physical capacity to commit offence, in simplistic terms, is likely to elicit the answer 'yes' in most cases. And just because someone has the physical and mental capacity to commit an offence, does not mean that they will or that they have. Therefore, a dichotomous response as elicited by this question posed by the JJ Act is of little use in making decisions regarding child who has come into conflict with the law. Thus, in response to the problems resulting from a simplistic dichotomous response to the physical mental capacity question, we have adopted a more detailed, descriptive and nuanced interpretation. Therefore, a dichotomous response as elicited by this question posed by the JJ Act is of little use in making decisions regarding child who has come into conflict with the law. Thus, in response to the problems resulting from a simplistic dichotomous response to the physical mental capacity question, we have adopted a more detailed, descriptive and nuanced interpretation. As per the preliminary assessment report we have developed, mental and physical capacity to commit offence is the ability of a child to make social decisions and judgments, based on certain limitations that the child may have. In other words, a child's abilities to make social decisions and judgments are compromised due to life skills deficits, neglect / poor supervision by family/poor family role models, experiences of abuse and trauma, substance abuse problems, intellectual disability, and/or mental health disorder/ developmental disability. Such issues (if untreated) adversely impact children's world view, and their interactions with their physical and social environment, thereby placing them at risk of engaging in antisocial activities. B. Circumstances of Alleged Offence (i) Family history and relationships (child's living arrangements, parental relationships, child's emotional relationship & attachment to parents, illness & alcoholism in the family, domestic violence and marital discord if any). (ii) School and education (child's school attendance, Last grade attended, reasons for child not attending school whether it is due to financial issues or lack of motivation, school refusal, corporal punishment). (iii) Work experience/ Child labour (why the child had to work/ how child found the place of work, where he was working / hours of work and amount of remuneration received, was there any physical/emotional abuse by the employer and also regarding negative influence the child may have encountered in the workplace regarding substance abuse etc. (iv) Peer relationships (adverse peer influence in the context of substance use/ rule-breaking/ inappropriate sexual behaviour/school attendance) (iv) Experiences of trauma and abuse (physical, sexual & emotional Abuse experiences) 3 (vi) Mental health disorders and developmental disabilities: (Mental health disorders and developmental disabilities that the child may have). Guidance Notes All of the above information for this section is to be documented as it is in the detailed psychosocial and mental health assessment, drawing on relevant sections from the detailed assessment, so as to present the factors and circumstances that made the child vulnerable to committing offence. Guidance Notes All of the above information for this section is to be documented as it is in the detailed psychosocial and mental health assessment, drawing on relevant sections from the detailed assessment, so as to present the factors and circumstances that made the child vulnerable to committing offence. Information for the first four heads needs to be drawn from Section 2, Social History, of the psychosocial and mental health proforma-which contains details on family, school, institution and peer issues; Information for the fifth item on trauma, needs to be drawn from Section 3, Trauma Experiences: Physical, Sexual, and Emotional Abuse Experiences' of the psychosocial assessment form; For the sixth item on Mental Health Disorders, Section 5, 'Mental Health Concerns' (including substance abuse) from the psychosocial assessment form, would need to be used. It is important to recognize that 'Circumstances of the Offence' does NOT refer to proximal factors i.e. what happened right before the offence incident took place. This is because proximal factors have a history which is important to recognize-there is a whole set of factors and life events that led up to the decisions and actions to just before the offence as well as the offence itself. Therefore, 'circumstances' are interpreted as life circumstances and a longitudinal approach is taken to understanding vulnerabilities and pathways to offences. This entails events and circumstances starting from the child's birth (or starting with the mothers pregnancy experiences) to the current date. This is the universal approach to history taking in child and adolescent mental health, to be able to understand children's emotions and behaviours based on their contexts and experiences, as they have played out over several years (and so it is not actually specific to children in conflict with the law). C. Child's Knowledge of Consequences of Committing the Alleged Offence (A brief about the child's understanding of social/ interpersonal and legal consequences of committing offence along with the child's insights regarding committing such an offence). Guidance Notes This is based on the 'Potential for Transformation' section in the detailed psychosocial and mental health assessment, as well as the first level interventions provided immediately after. How the child responded during the assessment ie. extent of his/her insight and motivation, must be documented here. Guidance Notes This is based on the 'Potential for Transformation' section in the detailed psychosocial and mental health assessment, as well as the first level interventions provided immediately after. How the child responded during the assessment ie. extent of his/her insight and motivation, must be documented here. Social and interpersonal consequences refer to the child's sense of empathy and understanding of how his/her actions would (negatively) impact his/her relationship with family, friends and others; legal consequences refer to the child's understanding of his/her actions as being a boundary violation/ breaking of rules with serious negative consequences for himself/herself including punishment and coming into conflict with the law. D. Other Observations & Issues Guidance Notes Any other observation made during the assessment regarding the child's social temperament/ child's behaviour in the observation home/ level of motivation for change/ if any positive behaviour noted is also provided. This may be drawn from Section 6 of the psychosocial and mental health proforma, on 'Life Skills Deficits and Other Observations of the Child', sub-section 6.2 'Other Observations of the Child'. These refer not just to negative observations but also to positive ones you might have made during the assessment. Observations may thus include the child's demeanour, or any views or ideologies that the child may have expressed regarding problem behaviours such as violence or abuse-which may better help understand who he/she is (and help the magistrate view the offence behaviour from varied perspectives). They may also include any odd behaviours that you observe which might help substantiate the evidence on mental health disorders and developmental disabilities-for instance, if the child's responses appear socially and cognitively inappropriate to his age, you may note possible intellectual disability; or if a child appears disoriented in terms of place and time or has marks of self harm on his body, then you might note mental health issues. E. Recommendations Guidance Notes Finally, the report makes recommendations for treatment and rehabilitation interventions for the child, based on the interests and desires of the child. These could pertain to placement, living arrangements, education and schooling, counselling for parents, referral to a tertiary facility for further mental health and psychosocial care and treatment. E. Recommendations Guidance Notes Finally, the report makes recommendations for treatment and rehabilitation interventions for the child, based on the interests and desires of the child. These could pertain to placement, living arrangements, education and schooling, counselling for parents, referral to a tertiary facility for further mental health and psychosocial care and treatment. This subsection is critical as it provides the JJB magistrate with clear direction on what assistance the child requires, thus creating an imperative for the board to consider options and respond in ways that are supportive and proactive (versus making decisions of transfer to the adult justice system). JJB magistrates may be requested to refer the child to a psychiatric facility for treatment, so that other issues pertaining to family and school can also be taken care of by the mental health system, which is then obligated to report to the JJB on the child's progress. In many instances, JJB magistrates have issued a conditional bail to ensure that the child and family follow through with mental health services as required ie. bail is given to the child on condition that he/she presents at the mental health facility and complies with treatment (if the child refuses to do so, the magistrate can revoke the bail).- Thus, there are adequate provisions under the JJ Act, which if effectively invoked, can be used to protect CICL from transfer to adult systems, and to facilitate their rehabilitation instead." XXX 14. The main thrust of the argument is that the preliminary assessment with regard to mental and physical capacity of juvenile to commit such offence, availability to understand the consequences of the offence and the circumstances under which he allegedly committed the offence was not done in accordance with law and within the stipulated period. Learned counsel for both the parties have admitted that the impugned order dated 26.2.2021 passed by the Juvenile Justice Board after about 3 years and 3 months of apprehending of the revisionist without extending the period is provided for preliminary assessment. Learned counsel for both the parties have not disputed the following facts. Learned counsel for both the parties have admitted that the impugned order dated 26.2.2021 passed by the Juvenile Justice Board after about 3 years and 3 months of apprehending of the revisionist without extending the period is provided for preliminary assessment. Learned counsel for both the parties have not disputed the following facts. (a) The incident took place on 24.11.2017 at about 3.45 P.M. and the juvenile was apprehended on the same day; (b) The psychological test of the revisionist was held on 9.8.2018 after about 10 months of apprehending of the juvenile whereby the I.Q. level of the juvenile was determined 37.5.; (c) On 25.2.2021 Juvenile Justice Board asked some questions for assessing the understanding of the revisionist. The impugned order has been passed on 26.2.2021." 31. Clearly therefore, in the present case the preliminary assessment to understand the 'consequences of the offence' and the 'circumstances under which the alleged offence was committed', was not done in accordance with law. 32. It is imperative to appreciate the import of this report, as, the assessment now made has a bearing on the entire life of the CCL. Upon such preliminary assessment, if a report is returned that the child in conflict with law has the (i) mental capacity to commit offence (ii) physical capacity to commit offence (iii) ability to understand the consequences of the offence and (iv) the circumstances under which the offence was allegedly committed, he shall be tried as an adult. Further, "45........ There are two major consequences provided in the Act, 2015, if the child is tried as an adult by the Children's Court. First, that the sentence or the punishment can go up to life imprisonment if the child is tried as an adult by the Children's Court, whereas if the child is tried by the Board as a child, the maximum sentence that can be awarded is 3 years. The second major consequence is that where the child is tried as a child by the Board, then under section 24(1), he would not suffer any disqualification attached to the conviction of an offence, whereas the said removal of disqualification would not be available to a child who is tried as an adult by the Children's Court, as per the proviso to section 24(1). Another consequence, which may also have serious repercussions, is that as per section 24(2), where the Board or the Children's Court, after the case is over, may direct the police or the registry that relevant records of such conviction may be destroyed after the period of expiry of appeal or a reasonable period as may be prescribed. Whereas, when a child is tried as an adult, the relevant records shall be retained by the relevant Court, as per the proviso to section 24(2)." (Reference Barun Chandra Thakur v. Master Bholu(SC): Law Finder Doc Id # 2012149). 33. Moving on, provision of Section 14(3) of the JJ Act stipulates that Preliminary assessment in heinous offences under Section 15 has to be done within a period of three months by the Board. The last proviso to Section 15 reasserts that the timeline stipulated in Section 14 has to be adhered to. However, in the present case in direct contravention thereof, i.e. that Preliminary assessment in heinous offences has to be done within three months by the Board, was not complied with. In the present case, petitioner was arrested on 17.06.2022 and the assessment was done on 19.04.2023 i.e. after 10 months. The entire process of the assessment to be made by the Board as well as the Psychologist has to be completed within a time-span of three months. An extension of two months may be sought upon an application made to the concerned Chief Judicial Magistrate. However, the record does not reveal that any extension of time was applied for in the present case. It has to be appreciated that the timeline as specified in the Statute is sacrosanct inasmuch as any assessment made after the expiration of the defined period would lose significance. 34. It has also to be borne in mind that the petitioner was arrested in the matter on 17.06.2022. Admittedly, he stayed in the company of hardcore criminals for a period of seven months. As such, any assessment made thereafter would be automatically vitiated. Even no permission was sought by the JJ Board from the Chief Judicial Magistrate for further extension of time for completion of assessment, and Chief Magistrate has to record the reasons in writing for granting extension. 35. This Court in "Suraj v. State of Haryana" Law Finder Doc ID # 2279185, has emphasised the importance of adhering to the stipulated timeline. 35. This Court in "Suraj v. State of Haryana" Law Finder Doc ID # 2279185, has emphasised the importance of adhering to the stipulated timeline. Relevant extract is reproduced hereinbelow:- "34. Before parting with this order, we have also observed that there is great rationale behind the time line provided under the Act to conclude various enquiries. (a) For giving findings that there is need for trial of a child as an adult, one needs to look at his/her physical maturity, cognitive abilities, social and emotional competencies; and the circumstances under which he/she allegedly committed the offence. With passage of time, to give assessment regarding the position as on the day of occurrence becomes difficult. (b) If the enquiry to determine the age of a person claiming juvenility is delayed and if the said person is later on able to prove that he is a child and he remains in custody, lodged in jail and staying in contact with the adult under-trial prisoners in the jail. The effect on the psychology of a child during the said stay causes childhood abrasions. The timelines and its importance as highlighted by the Apex court in Barun Chandra Thakur's case (supra) reads as under: "Timeline 59. There is a timeline provided for the inquiry, submission of the SIR, preliminary assessment and the investigation under the Act, 2015 and the Model Rules: i. The inquiry by the Board under section 14(1) is to be completed within a period of four months from the date of first production of the child before the Board, and it could be extended by a period of two more months by the Board for the reasons to be recorded as per section 14(2) . ii. Section 14(3) provides that a preliminary assessment under section 15 should be disposed of by the Board within a period of three months from the date of first production of the child before the Board. iii. Under section 14(4) it is provided that if the inquiry by the Board under section 15 for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated. iv. iii. Under section 14(4) it is provided that if the inquiry by the Board under section 15 for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated. iv. Under the proviso to section 14(4) dealing with the serious or heinous offences, in case the Board requires further period of time for completion of inquiry, the same may be granted by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded. v. Under section 8(3)(e) , SIR is to be submitted by the Probation Officer or the Child Welfare Officer or a social worker within a period of fifteen days from the date of first production of the child before the Board, vi. In rule 10(5) of the Model Rules, in case of heinous offences committed by a child between the age of 16 to 18 years, the Child Welfare Police Officer shall produce the statement of witnesses recorded by him and other documents prepared during the course of investigation within a period of one month from the date of first production of the child before the Board. 60. The timeline given under the various provisions as referred to above, has a rationale. The SIR to be submitted within fifteen days would facilitate the Board in taking a decision on the request for bail at the earliest. The period of one month given under rule 10(5) is to facilitate the Board to take a decision may be on a pending bail matter or for preliminary assessment for which three months' time is provided. The completion of inquiry within four months or any extended period is to ensure that a child is not subjected to unnecessary long and lengthy processes of trials and inquiries and that the matter is taken to its logical conclusion at the earliest." (Emphasis applied) 35. 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." (Emphasis applied) 35. Though the claim of juvenility can be raised at any stage even during the appeal but we have noticed that if the timeline provided under the Act of 2015 is not adhered to by the authorities and the judicial officers, it become difficult to set the clock back and also becomes difficult for conducting preliminary assessment with regard to the mental and physical capacity of the person facing allegation of commission of an offence, ability to understand the consequences of the offence and also to evaluate the circumstances in which the alleged offence was committed." 36. It has been submitted by learned State Counsel that the delay in making the assessment was occasioned on account of the fact that the petitioner himself had stated at the time of his arrest that he was 19 years of age. The said argument does not hold ground in view of the fact that even if the petitioner may have stated himself to be of 19 years of age at time of arrest, however, verification of his date of birth ought to have been made by the Investigating Officer at the time of arrest. As already noted above, even Arrest memo in this regard has not been produced by the respondent-State. 37. It has also been stated by learned State Counsel that delay in making the assessment has been occasioned on account of the fact that although the petitioner was arrested on 17.06.2022, however, the application for his being tried as a juvenile was filed by the petitioner only on 17.11.2022 (Annexure R5). 38. Moreover, it is on record that the petitioner belongs to lower socio-economic background and such delay if any, in filing of application for being tried as an adult cannot be held against him. Section 94 of the JJ Act stipulates as follows:- "94. 38. Moreover, it is on record that the petitioner belongs to lower socio-economic background and such delay if any, in filing of application for being tried as an adult cannot be held against him. Section 94 of the JJ Act stipulates as follows:- "94. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining - (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.". 39. Perusal of the above facts shows that even provision of Section 94 of the JJ Act has not been complied with. As already discussed above, the assessment made in the present case is not in accordance with law. Even timeline for assessment of three months has not been adhered to by the Board/Courts below. 39. Perusal of the above facts shows that even provision of Section 94 of the JJ Act has not been complied with. As already discussed above, the assessment made in the present case is not in accordance with law. Even timeline for assessment of three months has not been adhered to by the Board/Courts below. Even no permission for extension of period of timeline by two months, as mandated by judgment of this Court in case of Suraj (supra), was taken by the Board from the learned Chief Judicial Magistrate. Therefore, the conclusion of the Courts below that the petitioner be tried as an adult is vitiated. 40. In view of the above, the present petition is allowed. The impugned orders dated 24.04.2023 and 25.05.2023 are set aside. 41. Pending application(s) if any also stand(s) disposed of.