CAV Order

1. This Criminal Revision filed under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ‘Act of 2015’) by the applicant, who was complainant in the case, against the order dated 29.04.2023 passed by the learned Children's Court/ Additional Session Judge FSC (POCSO), Raigarh in CRA-36 of 2023, whereby the Criminal Appeal filed by the applicant has been dismissed.

2. Brief facts of the case are that the applicant is brother of the deceased, and complainant in the case. Allegation against the respondents- 2 and 3, who are juveniles in conflict with law, and other accused persons are that they committed marpit with the deceased Arjun on 27.09.2017, by which the deceased received grievous injuries, and died on the same day. FIR was registered and the juveniles along with other accused persons were taken into custody. Charge-sheet was filed against the juveniles in conflict with law before the Juvenile Justice Board, Raigarh, for the offence punishable under Sections147, 148, 149, 302, 294, 506, 452, 323, and 427 of the IPC. The juveniles in conflict with law were taken into custody on 28.09.2017, and they were sent to the Observation Home (Bal Samprekshan Grih).

3. On 08.05.2019, present applicant made an application under Section 15 of the Act of 2015 for determination of age of respondent-2 ABC. The said application was rejected by the learned Juvenile Justice Board, Raigarh on 08.02.2023 on the ground that such assessment with regard to mental and physical capacity to commit offence, ability to understand the consequence of offence is to be conducted by the Board within a month from the date of production of the juvenile in conflict with law before the Board in case of heinous offence, alleged to have been committed by the juvenile in conflict with law. In the present case, charge-sheet was filed in the year 2017, and after such a long time, mental and physical capacity of the juvenile in conflict with law can not be determined as on that day. The said order dated 08.02.2023 was challenged by the applicant before the learned Children's Court/ ASJ FSC (POCSO), Raigarh, in CRA- 36 of 2023, which was also dismissed vide its order dated 29.04.2023, and the same is under challenge in the present Criminal Revision.

4. Learned counsel for the applicant would submit that learned Juvenile Justice Board ought to have made assessment about the mental and physical capacity of the juvenile in conflict with law to commit such offence, ability to understand the consequences of the offence. The juvenile-ABC in the present case committed heinous offence along with other accused persons, and he was mentally, and physically capable to understand the consequence of the crime. The preliminary assessment of the juvenile in conflict with law is mandatory as provided under Section 15 of the Act of 2015, and the learned Juvenile Justice Board was required to pass an order in accordance with the provisions of sub- Section 3 of Section 18 of the Act of 2015.

5. In the present case, there is no preliminary assessment made by the Juvenile Justice Board at the time when the juvenile was produced before it on 28.09.2017, and even after making application by the applicant under Section 15 of the Act of 2015, the learned Juvenile Justice Board, as well as the appellate Court, have not exercised their jurisdiction to order for preliminary assessment of the mental and physical capacity of the juvenile in conflict with law-ABC, and therefore, the entire trial may vitiate and by setting aside the impugned orders passed by the learned Juvenile Justice Board, as well as learned appellate Court, an order for preliminary assessment of the juvenile in conflict with law-ABC may be passed by allowing the present revision.

6. On the other hand, learned State counsel opposes the submissions made by learned counsel for the applicant, and would submit that though there is mandatory provision under Section 15 of the Act of 2015, th