Preliminary Assessment Under Juvenile Justice (Care And Protection Of Children) Act, 2015 : A Sword Or Shield
Mohit K. Shah, B.Com, LL.B LL.M (IPR)
2nd Additional Civil Judge
Gandhidham, Dist. Kutch, Gujarat
Email Id : firstname.lastname@example.org
Date : 14/08/2020 - Gandhidham, Dist. Kutch, Gujarat
Preliminary Assessment Under Juvenile Justice (Care And Protection Of Children) Act, 2015 : A Sword Or ShieldIntroduction After the Nirbhaya's case the Juvenile Justice (Care and Protection) Act, 2000 had been repealed and The Juvenile Justice (Care and Protection of Children) Act,- 2015 come into the force. In Nirbhaya's case CCL had played an important role to commit the Crime but due to Juvenile Justice (care and protection),2000 The CCL who played a heinous role to commit the crime was sent to a reformation home for 3 years. Due to this incident turn up unprecedented public outrage leading to woman safety and other issues. Public coming out to the street and the government was forced to set up the committee of Former Chief Justice of India Hon'ble Justice Shri J.S. Verma for various amendment in Criminal law. At that time in all over India, there is a demand to change the age of Juvenile and bring it to 16 years instead of 18 years. At that time committee was not in the opinion to change the age to 16 years after verifying the various data relating to the crime committed by the Children. During those days the demand was also raised to treat Juvenile as an adult and send them for regular trial and the punishment because they thought that the child has some mental, physical capacity to doing or commit the crime but some child right activities were against this. To, come out with this situation the legislature change the Law of 2002 and enacted the Law of 2015 and come up with very new concept relating to the Preliminary Assessment. Preliminary Assessment means to determine that children (aged between 16 to 18) who commit the heinous offence treated as an adult or not. Preliminary Assessment an innovative concept was introduced with the enactment of The Juvenile Justice (Care and Protection of Children) Act,- 2015, To strike a balance between the child rights, international obligations and victim perceptions and People's outrage. What is a Preliminary Assessment? This concept was enacted in Section 15 of The Juvenile Justice (Care and Protection of Children) Act, 2015. I have reproduced this section for reference.
"15 (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 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."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;"Let me explain this in details because the board has to define whether an alleged offence committed by a juvenile is falling under the Heinous offence or not. Now take an example that Supposes if Juvenile who completed 16 years had alleged to the committed offence under 307 of IPC. In this section 307 of IPC prescribe sentence is imprisonment is for life or imprisonment for 10 years is given in the IPC. But to consider that whether this act falls in heinous offence in the definition the describe minimum imprisonment of 7-year barrier but if we look at the Sentence of IPC 307 there is no word "MINIMUM" imprisonment, therefore, this offence does not fall under the heinous offence. And the second condition is not full filled therefore in this case Preliminary assessment has not done by the board. For this one can refer the Judgment of the Apex court Pronounce in Shilpa Mittal v. State of NCT of Delhi & ANR in Criminal Appeal No-34 of 2020. (Clik here) wherein para 36 is relevant and the said is reproduced below.
"36. In view of the above discussion we dispose of the appeal by answering the question set out in the first part of the judgment in the negative and hold that an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. However, in view of what we have held above, the Act does not deal with the 4 th 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, 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."Therefor to identified whether the alleged act falls under the heinous offence category or not is a primary very important factor for determination. If, board after seeing all the aspect of heinous offence and after the determination of age i.e the juvenile is 16 year or above. If above mention two basis condition are full filled than then the board has done to the preliminary assessment. Now the board has to do preliminary assessment in regards to:-
[i] the mental and physical capacity of the child to commit the offence.
[ii] the ability of the child to understand the consequences of the offence; and
[iii] the circumstances in which the child allegedly committed the offence.Now the board has to do preliminary assessment keep above factor in mind. To come out with the conclusion board may take the assistance of experienced psychologists or psycho-social workers or other experts. Board can refer the juvenile to Psychologist or psycho-social worker or other expert depending on the fact of the case. Board has to find out whether child is capable of doing crime or he has knowledge of consequences of it and under which circumstances he has done this. After considering the report of all the expert board has to pass order whether the juvenile is treated as an adult or child. Keeping in mind that the Preliminary assessment is not a trial. Before passing the order it is the duty of the board must have to secure the participation of child through guarding/parents because it required by law under section 3(4) of the JJ ACT say that "Every child have a right to be heard and to participated in all processes and decision affecting his interest." Suppose If, board rely upon the psychologist report then it is a duty of the board that if juvenile wants to cross-examine the psychologist then the board has to give chance to cross-examination of a psychologist if the juvenile has not given this opportunity it will against the natural Justice and the principal of JJ Act-2015. Furthermore, the board has to consider the child's view about the age and maturity of the juvenile. Board has to look other various factor or documentary evidence this inside was given in In the case of Navin Bhai BIJal Bhai v. the State of Gujarat (CRA-374-2019 dated 08-05-2020) by Hon'ble Gujarat High court, that Such As Panchnama of Scene, Arrest Panchnama, Medical history given before the doctor, furthermore Contents of the Statement of CCL except the confession part recorded by the Police under section 161 of Cr. P.C. for circumstances in which allegedly committed, statement of the victim, Social Investigation Report (it is very important for determination before passing any order in Favour or against the juvenile as the case may be. Board has to do a Preliminary assessment within 3 months of the First production of the Juvenile. Conclusion:- 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.
© Chawla Publications (P) Ltd.