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2019 Supreme(All) 946
IN THE HIGH COURT OF ALLAHABAD
Rahul Chaturvedi, J.
Radhika (Juvenile) - Appellant
Vs.
State Of U.P. And Another - Respondent
Criminal Appeal No. 4418 of 2019, 4420 of 2019, 4518 of 2019, 4467 of 2019, 2702 of 2019; Criminal Miscellaneous Bail Application No. 38818 of 2018
Decided On : 05-08-2019
Gaurav Tripathi, Adv., Anurag Vajpeyi, Adv., Amit Mishra, Adv., Ram Jee Saxena, Adv., Raghuvansh Chandra, Adv., Bhanu Prakash Verma, Adv., Pankaj Satsangi, Adv., Kamal Kishor Mishra, Adv., Sanjay Chaturvedi, Adv., Dharmendra Singhal, Adv., Shivendra Raj Singhal, Adv., Kameshwar Singh, Adv., Nilam Shukla, Adv., Vimlendu Tripathi, Adv.
Headnote:
Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 101(5) – Whether the aforesaid appeals filed under Section 101(5) of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act) is an appropriate remedy for the appellants after getting their respective bail applications rejected by Children Court/Special Sessions Judge POCSO Act – Held, Ancillary to the aforementioned prime question, the court is also posed with yet another serious legal question that while deciding the application of a juvenile between the age group of 16-18 years, the seriousness, gravity of the offence and their respective role in commission of crime, would also be a determinable factor while releasing them on the proceedings opted by them – Held, Preliminary assessment was made in the heinous offence of the Board, there is requirement of law that the Board may take the assistance of "experienced psychologist or "psycho social experts". There is no expert in most of the Session Divisions which is really scary state of affairs whereby the Board is often handicapped, on this count – In the absence of expert psychologist or psycho-social expert, it would not be possible to assess the mental or psychological faculty of mind of that particular juvenile objectively, which in fact, is the foundation stone of Juvenile Justice Jurisprudence in its correct prospective – In the absence of detailed objective preliminary age group of 16-18 years, their level of understanding about the gravity of the offence and other attending circumstances, the very purpose and objective of present Act would go haywire – In the prevailing circumstances, this Court thus directs the State Government to take such a remedial step preferably within a period of six months to appoint a panel of at least six expert psychologist/psycho-social experts in each Commissioners Division, so that their services may be utilized by the respective Juvenile Justice Boards within that particular Division for making such an assessment of delinquent juveniles – Appeal dismissed. (Para 33)
Facts of the case:
Whether the aforesaid appeals filed under Section 101(5) of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as Act) is an appropriate remedy for the appellants after getting their respective bail applications rejected by Children Court/Special Sessions Judge POCSO Act.
Findings of the case:
Ancillary to the aforementioned prime question, the court is also posed with yet another serious legal question that while deciding the application of a juvenile between the age group of 16-18 years, the seriousness, gravity of the offence and their respective role in commission of crime, would also be a determinable factor while releasing them on the proceedings opted by them – Held, Preliminary assessment was made in the heinous offence of the Board, there is requirement of law that the Board may take the assistance of "experienced psychologist or "psycho social experts". There is no expert in most of the Session Divisions which is really scary state of affairs whereby the Board is often handicapped, on this count – In the absence of expert psychologist or psycho-social expert, it would not be possible to assess the mental or psychological faculty of mind of that particular juvenile objectively, which in fact, is the foundation stone of Juvenile Justice Jurisprudence in its correct prospective – In the absence of detailed objective preliminary age group of 16-18 years, their level of understanding about the gravity of the offence and other attending circumstances, the very purpose and objective of present Act would go haywire – In the prevailing circumstances, this Court thus directs the State Government to take such a remedial step preferably within a period of six months to appoint a panel of at least six expert psychologist/psycho-social experts in each Commissioners Division, so that their services may be utilized by the respective Juvenile Justice Boards within that particular Division for making such an assessment of delinquent juveniles.
Result: Appeal dismissed
JUDGMENT :
Rahul Chaturvedi, J.
Heard Sri Dharmendra Singhal, learned Senior Counsel, S/Sri Sanjay Chaturvedi, Amit Mishra, Gaurav Tripathi, Pankaj Satsangi, B.P. Verma, Ramji Saxena and Kamal Kishor Mishra, learned counsel for the appellants in all the connected matters and Sri Satendra Kumar, Phool Chand and Faraz Kazmi, learned counsel for the State at length.
2. Questions of law recurring in all the aforesaid appeals are as under:-
(i) As to whether the aforesaid appeals filed under Section 101(5) of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'Act') is an appropriate remedy for the appellants after getting their respective bail applications rejected by Children Court/Special Sessions Judge POCSO Act ?
(ii) Ancillary to the aforementioned prime question, the court is also posed with yet another serious legal question that while deciding the application of a juvenile between the age group of 16-18 years, the seriousness, gravity of the offence and their respective role in commission of crime, would also be a determinable factor while releasing them on the proceedings opted by them ?
3. Since the malady of all these appeals arose out the fact that the concerned learned Additional Session Judge (POCSO Act) has rejected the bail applications of the concerned juveniles. Therefore, aggrieved by those bail rejection orders, all the delinquent juveniles/appellants have filed their respective appeals before this Court in exercise of power U/s 101(5) of the Act, which reads thus:
"101(5) - Any person aggrieved by an order of the Children's Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974)."
4. Since common question of law is involved with regard to maintainability of these appeals U/s 101(5) of the Act before this Court, hence, for the sake of brevity, all the aforesaid appeals are being adjudicated and decided by the following common judgment.
5. Before coming to the legal aspect of the issue, it is imperative to spell out the brief facts of every appeal to appreciate the controversy involved in its correct perspective.
FACTS OF THE RESPECTIVE APPEALS
(a) APPEAL No. 4418 of 2019
Radhika (Juvenile)
The instant appeal has been filed against the order dated 12.06.2019 passed by Additional Sessions Judge/FTC Court, Etawah while rejecting the Bail Application no. 1096/2018-19 arising out of Case Crime No. 223/2018 U/s 498A, 304B I.P.C. and U/s 3/4 D.P. Act, Police Station Chaubiya District Etawah. The appellant Radhika is one of the named accused of the FIR lodged by Rakesh Kumar for the alleged act of bride burning of Ms. Jyoti. The deceased was married just 6 months back and in her dying declaration, she has attributed the role of pouring kerosene oil on her to the appellant when she was alive and as per the opinion of the doctor she took her last breath on account of 95% burn injuries. After holding an extensive investigation, the police has submitted charge sheet U/s 498A, 304B I.P.C. and U/s 3/4 Dowry Prohibition Act against all the named accused persons including the appellant Ms. Jyoti.
Since the appellant claims juvenility and after holding a preliminary assessment in this regard, her case was segregated as a juvenile and Juvenile Justice Board, Etawah vide its order dated 22.2.19 pursuant to Section 15(1) of the Juvenile Justice Act, 2015 have adjudicated after assessing her age related document that the alleged delinquent offender is above 16 years of the age at the time of incident and according to preliminary assessment with regard to her mental and physical capacity, she was quite intelligent and has sufficient ability to understand the far reaching consequences of her conduct in commission of crime (Assessment order by the Board dated 22.2.19/Annexure No. 14 to the affidavit). After holding the assessment, the Board has passed an order that there is need of trial of said child as an adult and transferr
