2022 Supreme(SC) 568

SUPREME COURT OF INDIA
DINESH MAHESHWARI, VIKRAM NATH, JJ.
Barun Chandra Thakur – Appellant
Versus
Master Bholu & Anr. - Respondents
Criminal Appeal No.950 of 2022(arising out of SLP(Crl.) No.10123 of 2018)
With
CBI - Appellant
Versus
Bholu - Respondent
Criminal Appeal No.951 of 2022 (arising out of SLP(Crl.) No. 6347 of 2022 @Diary No.25451 of 2019)
Decided on : 13-07-2022

IMPORTANT POINT
Preliminary assessment of juvenile in conflict with law – Lack of experience coupled with child’s limited ability to deeply understand long-term consequences of their actions can lead to impulsive / reckless decision making – Child should be tested on different parameters and should be given an opportunity of being brought into main stream if, during his juvenility, has acted in conflict with law.

Headnote:

(A) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 15 – Juvenile Justice (Care and Protection of Children) Model Rules, 2016 – Rule 10(A) – Preliminary assessment of juvenile in conflict with law – Where child has completed or is above age of 16 years, Board is required to conduct preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand consequences offence and circumstances in which he allegedly committed offence and after such assessment, pass an order in accordance with sub-section (3) of Section 18 – If Board is of opinion that child needs to be tried as an adult then case be transferred to Children’s Court having jurisdiction to try such offence – Otherwise, Board itself will proceed to try the matter as a summons case under Code of Criminal Procedure, 1973 – Obligation of Board in making preliminary assessment on four counts mentioned in Section 15 of Act is largely dependent upon wisdom of Board without there being any guidelines as to how Board would conduct such preliminary assessment – In absence of any such framework or guidelines, Board has to use its discretion in taking into consideration whatever material it deems fit for assessing four attributes – While considering a child as an adult one needs to look at his/her physical maturity, cognitive abilities, social and emotional competencies – From a neurobiological perspective, development of cognitive, behavioural attributes like ability to delay gratification, decision making, risk taking, impulsivity, judgement, etc. continues until early 20s – It is all the more important that such assessment is made to distinguish such attributes between a child and an adult – Cognitive maturation is highly dependent on hereditary factors – Emotional development is less likely to affect cognitive maturation – However, if emotions are too intense and child is unable to regulate emotions effectively, then intellectual insight/knowledge may take a back seat. (Paras 62, 65 and 66)

(B) Juvenile Justice (Care and Protection of Children) Act, 2015 – Sections 15 and 19 – Juvenile Justice (Care and Protection of Children) Model Rules, 2016 – Rule 10(A) – Preliminary assessment of juvenile in conflict with law – Power to make preliminary assessment is vested in Board and also Children’s Court under Sections 15 and 19 respectively – A child with average intelligence/IQ will have intellectual knowledge of 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 – Children may be geared towards more instant gratification and may not be able to deeply understand long-term consequences of their actions – They are also more likely to be influenced by emotion rather than reason – Lack of experience coupled with child’s limited ability to deeply understand long-term consequences of their actions can lead to impulsive / reckless decision making – Child should

be tested on different parameters and should be given an opportunity of being brought into main stream if, during his juvenility, has acted in conflict with law – Task of preliminary assessment under Section 15 of Act, 2015 is a delicate task with requirement of expertise and has its own implications as regards trial of case – Central Government and National Commission for Protection of Child Rights and State Commission for Protection of Child Rights to consider issuing guidelines or directions in this regard which may assist and facilitate Board in making preliminary assessment under Section 15 of Act, 2015. (Paras 70, 71, 74, 81, 86 and 87)

(C) Interpretation of Statute – Principle of Interpretation – Word ‘may’ when used in a legislation by itself does not connote a directory meaning – If in a particular case, in interests of equity and justice it appears to court that intent of legislature is to convey a statutory duty, then use of word “may” will not prevent Court from giving it a mandatory colour. (Para 77)

Facts of the case:

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, 2015. These two appeals, one filed by the complainant and other by the CBI, question the correctness of judgment and order dated 11.10.2018 passed by single Judge of Punjab and Haryana High Court at Chandigarh in Criminal Revision whereby revision was allowed; the order dated 20.12.2017 passed by Juvenile Justice Board, Gurugram and the order dated 21.05.2018 passed by Additional Sessions Judge/Children’s Court were set aside and the matter was remanded to the Board for fresh consideration.

Findings of Court:

In the present case, the only assistance taken is to get 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.

Result : Appeals dismissed.