Gujarat High Court Reiterates Assessment Method For Juvenile Offenders To Be Tried As Adults, Says Their Status As 'Child' Not Disturbed

Justice Gita Gopi heavily relied on the precedent set in Barun Chandra Thakur vs. Master Bholu & Anr (2022), whereby the Supreme Court had emphasised the importance of formulating guidelines to aid the Juvenile Justice Board in making preliminary assessments under Section 15 of the JJ Act and emphasized the importance of considering various factors, such as the child's physical development, cognitive abilities, as well as their social and emotional competencies when determining whether to treat a child as an adult.

The High Court noted that the term 'preliminary assessment into heinous offenses by the Board,' as used in Section 15 of the JJ Act, imposes a duty on the Board to make a decision regarding whether it is necessary to try the child as an adult. The Court further noted that according to Section 18(3) of the JJ Act, the Board is obligated to transfer the case to the Children's Court with jurisdiction to try such offenses when such a need is established.

The court emphasized that assessing the mental capacity and comprehension of the consequences of an offense by an adolescent in conflict with the law is a critical aspect of the initial evaluation mandated by section 15 of the JJ Act.

“This evaluation of ‘mental capacity and ability to understand the consequences’ of the child in conflict with law can, in no way, be relegated to the status of a perfunctory and a routine task. The process of taking a decision on which the fate of the child in conflict with law precariously rests, should not be taken without conducting a meticulous psychological evaluation,” the court further emphasized.

Additionally, the court reiterated that the authority to conduct this preliminary assessment is vested in both the JJB under section 15 and the Children's Court under section 19.

The Court clarified that this preliminary assessment is not intended to consider the child as an adult but rather to determine whether the child should be tried as an adult in a specialized Children's Court with jurisdiction over such offenses.

“The trial of the said child in conflict with law is sent to the Children’s Court, where the Children’s Court has to exercise its powers as granted under section 19 of the J.J. Act. The fact that the trial of the child in conflict with law is sent to the Children’s Court, is with the significance, that the said child does not leave his status as that of the child, since his trial is conducted in the Children’s Court,” the Court added.

Furthermore, the court pointed out that the National Commission for the Protection of Child Rights (NCPCR) has developed guidelines, following directions from the Supreme Court developed in consultation with experts and State Commissions for Protection of Child Rights (SCPCRs), to ensure that the JJBs can conduct the preliminary assessment in line with the guiding principles and provisions of the Act.

The court also noted that the preliminary assessment should take into account four key determinants: the physical capacity of the child to commit alleged offence; the mental capacity of the child to commit alleged offence; the circumstances in which the child allegedly committed the offence; and the ability to understand the consequences of the offence.

The Court explained that the preliminary assessment is not a trial, but it is conducted to assess the capacity of child in conflict with law to commit and understand the consequences of the alleged offence.

The Court said that while making a preliminary assessment, the JJ Board and the Children’s Court has to specifically deal with all four determinants by assigning reasons to explain the capacity of such child to commit offence.

The Court also said that the facts of the case must be dealt with to understand the circumstances in which the child allegedly committed the offence and the circumstances to be referred are not merely the immediate circumstances of the offence itself, but also other cumulative circumstances which led to the immediate circumstances related to a long period occurring in the child’s life, and finally the ability to understand the consequence of the offence.

The Court clarified that the preliminary assessment is not a trial but is an exercise to assess the child’s capacity to commit and understand the consequences of the alleged crime, therefore, the Board must be very careful while making a preliminary assessment and should not mechanically rely on the Social Investigation Report without analyzing the child’s case.

Additionally, the Court took note of the NCPCR guidelines which explicitly state that the confessional statement (of accused) from the Social Investigation Report should not be taken into consideration when evaluating other information during the preliminary assessment.

The Court explained,

“the aim of the preliminary assessment is not to seek confession from the child, nor to reach any conclusion of any sort. The sole aim of the preliminary assessment is to determine whether the child in the age of 16-18 years should be tried as an adult in case of heinous offence, and such assessment should not be considered as an inquiry into the offence or prelude to the child by the Children’s Court or J.J. Board.”

Additionally, the Court delineated a set of questions that should be taken into account during the preliminary assessment process, in accordance with the National Commission for Protection of Child Rights (NCPCR) guidelines:

i. whether the child has himself been a victim of any offence in the past;

ii. if yes, what is the nature of offence;

iii. whether the child have ever been put to extreme mental trauma;

iv. whom does a child sees as their role models;

v. what are child’s ambitions in life;

vi. whether the child is associated with any group formed by adults;

vii. whether the child is the control of adults, or group of adults, and if so, the Board shall consider the aspect whether independent of the influence of the adults, the child may not have committed the offence;

viii. whether the child suffers from any kind of disability as listed in Rights of Persons with Disabilities Act, 2016; specify;

ix. whether the child is prone to taking drugs or alcohol;

x. whether the child is under the influence of peer groups or associates with those who present risk of harm e.g. sexual offenders, drug peddlers etc. or criminals;

xi. whether the child has suicidal tendencies or of harming own self;

xii. whether the child has been recruited or used or forced by any non-State, self-styled militant group or outfit declared as such by the Central or the State Government and whether such child was in a position to desist influences and pressures excreted by such actors in the given circumstances of his or her life etc.

In reference to the guidelines for justifying orders of preliminary assessment, the Court cited the case of Kent v. United States (1966), where the United States Supreme Court outlined specific factors that should be considered by courts before transferring a juvenile to the criminal justice system. These factors include:

1. The seriousness of the alleged offense to the community and whether protecting the community requires waiver;
2. Whether the alleged offense was committed in an aggressive, violent, premeditated, or wille manner;
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;
4. The prosecutive merit, i.e., whether there is evidence upon which a [court] may be expected to return an indictment;
5. The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults;
6. The sophistication and maturity of the juvenile by consideration of his home, environmental situation, emotional attitude, and pattern of living;
7. The record and previous history of the juvenile, including previous contacts with law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation, or prior commitments to juvenile institutions;
8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services, and facilities currently available to the juvenile court.

The Court held, "the impugned orders passed by the J.J. Board and the Children’s Court are not judicious, hence, the preliminary assessment of the present child in conflict with law requires assessment afresh by J.J. Board, as contemplated under section 15 of the J.J. Act, as this Court under revisional jurisdiction of section 102 would have no power to carry out the preliminary assessment."

The Court allowed the Revision Application and the Order passed in Criminal Appeal by the 3rd Additional Sessions Judge & Special (Children Court), Vadodara and the order passed by the Juvenile Justice Board at Vadodara were quashed and set aside.

Case Title: Child In Conflict With Law Through Guardian Versus State Of Gujarat R/Criminal Revision Application No. 1024 Of 2023

Case No.: R/Criminal Revision Application No. 1024 Of 2023

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