Preliminary assesment of the child in conflict with the law under section 15 of the JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDRENS ACT,2015

Section 15 (1)of the Juvenile justice (care and protection )Act,2015 , 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 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: 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 15 of the JJ ACT,2015 specifically says that if the offence is heinous in nature and the accused person has completed the age of 16 years and if he is below the age of 18 years, the Board shall conduct a preliminary assessment with regard to the mental and physical capacity to commit such offence, and also the ability to understand the consequences of the offence and the circumstances in which, he allegedly committed the offence and thereafter, the Board can pass appropriate orders under sub section (2) of section 15 or under sub section (3) of Section 18 of the JJ Act. For doing Preliminary Assessment there is a basic condition to be full filled. Conditions are mention as under :- 1. A juvenile has completed the age of 16 years. 2. A juvenile has alleged to commit a Heinous offence. Now question come to our mind that what is a heinous offence. The Said definition is defined under the act in section 2(33). 2(33) "heinous offences" includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more;" Rule 10A of the said Act (Care and Protection of children) Model Rules, 2016 (in short `Central Rules') prescribes the procedure for preliminary assessment into heinous offences by the Board. It provides that the Board shall in the first instance determine whether the child is of 16 years of age or above. According to sub-Rule (2) of the Central Rules, for the purpose of conducting a preliminary assessment in case of heinous offences the Board may take assistance of psychologist or psycho-social workers or other experts who have experience of working with the children in different circumstances. According to sub-rule (3) of the Central Rules, while making the preliminary assessment, the child shall be presumed to be innocent. According to sub-rule (4) of the Central Rules, where the board, upon a preliminary assessment passes an order that there is a need for trial of the said child as an adult, `it shall assign reasons for the same'. This preliminary assessment takes into consideration the following kinds of reports/evidences: i.“Social Investigation Report: A report of a child containing detailed information pertaining to the circumstances of the child, the situation of the child on economic, social, psycho-social and other relevant factors, and the recommendation thereon. Where a child alleged to be in conflict with law is apprehended, the probation officer prepares a report containing information regarding the antecedents and family background of the child and other material circumstances likely to be of assistance to the Board for making the inquiry. It is actually prepared by a Probation Officer or the voluntary or non- governmental organisation, along with the evidence produced by the parties for arriving at a conclusion.” ii.Social Background Report: A report on a child in conflict with law containing thebackground of the child prepared by the Child Welfare Police Officer. For gathering the best available information, it is incumbent upon the Special Juvenile Police Unit or the Child Welfare Police Officer to contact the parents or guardians of the child. This report is treated as an important document for the welfare of the children while deciding theircase. This has been upheld in the case of Ramachandran v. The Inspector of Police, 1994 CriLJ 3722 iii. Physical mental drug assessment report iv. Preliminary assessment report: The report containing circumstances of apprehending the child and the offence alleged to have been committed by him. It also consists of psychological evaluation of the child undertaken by the psychologist himself. v.Statement of witnesses and other documents :Statement of witnesses and other documents prepared during the course of investigation by the child welfare police officer within a period of one month from the date of first production of the child before the board. The purpose of such preliminary assessment test under Section 15 of the Act is to ascertain as to whether `the child in conflict with law' is required to be tried as an adult by a Children's Court (vide Section 18(3)) or by the Board. In the aforesaid eventuality, once `a child in conflict with law' is produced before the Board, it is therefore, imperative for the Board to conduct a preliminary assessment test under Section 15 of the Act with regard to: a. The mental and; b. Physical capacity to commit a heinous offence within the meaning of Section 2(33) of the Act and; c. Ability to understand the consequences of the offence and; d. The circumstances in which he allegedly committed the offence. In order to appreciate the aforesaid provisions; Section 3 of the JJ Act 2015 may be taken into consideration. Section 3 enumerates `General Principles to be followed in administration of the said Act'. According to Clause (i) of Section 3, a child shall be presumed to be innocent of any mala-fide or criminal intent. According to clause (ix) of section 3, no waiver of any right of the child is permissible or valid. According to Clause (xvi), basic procedural safeguards of fairness shall be adhered to, including the right to a fair hearing, rule against bias, etc. In the aforesaid backdrop, it is therefore evident that the preliminary assessment test is a compulsory step which has to be necessarily followed by a Board once a child is produced before it in the eventualities as mentioned hereinabove. The procedure enumerated in Section 15 read with Rule 10A of Central Rules makes it imperative for the Board to scrupulously and religiously follow the procedure in order to come to an independent decision, of course with aid of expert opinion. The crux is that the formulation of the opinion must, therefore be by the Board and none else. The Board cannot abdicate its essential judicial function. It is trite law that no decision making authority can abdicate its decision making power to another authority (vide: Gangajali Education Society v. Union of India, (2017) 16 SCC 656). An order under Section 15 of the Act not only gives a different legal character to a juvenile aged between 16 to 18 years thereby presuming the said juvenile to be an adult in the contemplation of law, but also takes away the application of the beneficial provisions enumerated under Section18(1)/(2) of the Act. It eventually determines the forum for trial, procedure for trial and the punishment that can ultimately be imposed in case the said juvenile is found to be guilty. Since the provision under Section 15 of the Act deals with a legal fiction (vide Section 18(3)), it has to be construed strictly. Once an order is passed under Section 18 (3) of the Act, the case of the said child is transferred to the Children's Court within the meaning of Section 2(20) of the Act. In case the Children'sCourt is a designated court under Section 25 of the Commissions for Protection of Child Rights Act, 2005 (in short `the Child Rights Act') vis a vis under Section 28 of the Protection of Children from Sexual Offences Act, 2012 (in short `POSCO'), it will follow the procedure for trial of a sessions case under Chapter XVIII of CrPC (vide Section 19 (2) read with Section 33 of POSCO vis a vis Section 25 of the Child Rights Act and Rule 12(8) of the Central Rules). The Children's Court may draw presumptions of guilt and culpable mental state under Sections 29 and 30 of POSCO respectively, in appropriate cases. It may pass any order of sentence except death sentence and life imprisonment without remission (vide Section 21) unlike the Board under Section 18 of the Act. The protection against disqualification under Section 24 of the Act will also not operate qua a child in conflict with law who was tried as an adult by the Children's Court. It is therefore evident that the preliminary assessment test is a compulsory step which has to be necessarily followed by a Board once a child is produced before it in the eventualities as mentioned hereinabove. The procedure enumerated in Section 15 read with Rule 10A of Central Rules make it imperative for the Board to scrupulously and religiously follow the procedure in order to come to an independent decision, of course with aid of expert opinion. Very recently, the Hon'ble Supreme Court of India in BARUN CHANDRA THAKUR VERSUS MASTER BHOLU&ANR 2022 LiveLaw (SC) 593 has held that Proviso to Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 read as mandatory condition for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts -where the Board is not comprising of a practicing professional with a degree in child psychology or child psychiatry, the expression "may" in the proviso to section 15(1) would operate in mandatory form and the Board would be obliged to take assistance of experienced psychologists or psychosocial workers or other experts -however, in case the Board comprises of at least one such member, who has been a practicing professional with a degree in child psychology or child psychiatry, the Board may take such assistance as may be considered and in case the Board chooses not to take such assistance, it would be required of the Board to state specific reasons therefore. Very recently, the Hon'ble Supreme Court of India in Shilpa Mittal v. State of NCT of Delhi and Another, AIR 2020 SC 405 has underlined the importance of such provision and held, "18. The Children's Court constituted under the Act of 2015 has to determine whether there is actually any need for trial of the child as an adult under the provisions of Cr. PC and pass appropriate orders in this regard. The Children's Court should also take into consideration the special needs of the child, tenets of fair trial and maintaining child- friendly atmosphere. The Court can also hold that there is no need to try the child as an adult. Even if the Children's Court holds that the child has to be tried as an adult, it must ensure that the final order includes an individual care plan for rehabilitation of the child as specified in Sub-section (2) of Section 19. Furthermore, under Sub-section(3) such a child must be kept in a place of safety and cannot be sent to jail till the child attains the age of 21 years, even if such a child has to be tried as an adult. It is also provided that though the child may be tried as an adult, reformative services, educational services, skill development, alternative therapy, counselling, behaviour modification, and psychiatric support is provided to the child during the period the child is kept in the place of safety." To this the Hon’ble Apex Court holds that an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. However, the Act does not deal with the 4th category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided, in such circumstances they shall be treated as 'serious offences' within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter. The Hon'ble Punjab and Haryana High Court in Bholu v. CBI, 2019 (1) RCR (Cri) 603 has inter alia held that the parameters led down under Section 15 of the Act are required to be followed strictly. It was held: ". In the present case, the petitioner, being more than 16 years of age as on the date of commission of alleged offence, the matter had to be considered in view of provisions of Section 15 of Act for the purpose of making preliminary assessment, as to whether the child in conflict with law had to be tried as an adult or not. The three parameters as provided under Section 15 of the Act are required to be followed strictly. The Act of 2015 has been enacted by the Parliament under the powers available under Article 253 of the Constitution of India, the age for trying the child/juvenile as an adult has been reduced from 18 to 16 years. For the purpose of analysing and coming to a conclusion to pass order u/s.15 of the JJ Act, the Board has got ample power to take the assistance of an experienced psychologists or Psycho-social workers or other experts. It is also made clear that, if the Board is satisfied on the preliminary assessment and arrived at a conclusion that the Board itself can dispose of the case by following the procedure to try the accused before the Board itself as contemplated under the provisions of the Cr P C and the JJ Act. In such on eventuality, the Board shall not send the Juvenile to the Sessions Court for trial. IMPORTANCE OF PRELIMINARY ASSESSMENTS :- The preliminary assessment is a barrier and it in safeguard for the juvenile. Because in the act Every child is presumed to be innocent. Moreover, this provision is also consonances with victimology because if the crime is very heinous then juvenile may be treated as an adult and transfer to children court where he will get the imprisonment as per the Section -21 of the JJ Act-2015. I may conclude with an example suppose one juvenile i.e. a boy allegedly indulges in Murder where he stands beside his father and father has murdered the but police has lodged the Fir against son and father. In another case, Juvenile has committed murder and rape where he is only one to carry out the crime. So in the first scenario, Preliminary assessment comes to the safeguard for the Juvenile, it is in line of the aim and object of the Act and in Second Scenario it is for a victim to get Justice. It is a tool which can be used as a Sword and Shield. Therefore it is a very innovative concept. it Preliminary assessment is doing balancing between the rights of Child and Victim. Achawal and Ors. vs. State of Assam and Ors. (20.05.2019 - GUHC) :MANU/GH/0400/2019 Preliminary Assessment is not a trial “17. In view of the orders to be passed under Section 18(3) that may provide for a need of trial of the child in conflict, we also have to clarify that the preliminary assessment that may be made under Section 14(3) and further under Section 15(1) is not a trial but is an assessment only for the purpose of assessing the capacity of such child to commit and understand the consequences of the alleged offence”