Punjab & Haryana HC Quotes Poet Nida Fazli To Emphasise Protection Of Children, Sets Aside Order To Try Juvenile As Adult

The Punjab and Haryana High Court recently quoted poet Nida Fazli's poem while setting aside the order of the Juvenile Justice Board (JJB), to try a juvenile as an adult in a POCSO case.

"Jin Charaaghon Ko Hawaon Ka Koi Khauf Nahi, Un Charaaghon Ko Hawaon Se Bachaya Jaye” (Those lamps that are not fearful of strong winds, they must be protected from the winds, let's do that), the court said.

Justice Kuldeep Tiwari said, "The right of the victim is one of the important aspects to be kept in mind by the J.J.B. at the time of conducting proceedings under the Act of 2015, however, it is also equally important to apply all the safeguards provided under the Act. The object behind enactment of the Act of 2015 is not to punish the juveniles but to provide them such an atmosphere so that they can be reformed and ultimately be readjusted in the mainstream of the society."

The Court elucidated that the preliminary assessment has a wider implication upon the child inasmuch as in the event of the J.J.B., post making preliminary assessment, declaring the child to be tried as an adult by the Children's Court, there are two major consequences.

First is that, the sentence or the punishment can go up to life imprisonment if the child is tried as an adult, whereas, if the child is tried by the J.J.B. as a child, the maximum sentence that can be awarded is three years.

The second major consequence is that, if the child is tried as a child by the J.J.B, then under Section 24(1), he would not suffer any disqualification attached to the conviction of an offence, whereas, the said removal of disqualification would not be available to a child tried as an adult.

Consequently, the Court remanded the case to the JJB  for making a preliminary assessment afresh by adhering to the legal principles and within the timeframe prescribed.

These observations were made while hearing the plea challenging the order to treat the petitioner juvenile (CCL) as an adult and has transferred his trial to Children's Court having jurisdiction to try such offences.

 The Child in Conflict with Law (CCL) was booked for sodomy under Section 377 IPC and Section 6 of the POCSO Act.

The J.J.B. held an inquiry as per the mandate enclosed in Section 15 of The Juvenile Justice (Care and Protection of Children) Act, 2015 and came to a conclusion that, the CCL, who is over and above 16 years of age, has attained sufficient maturity and he is physically and mentally capable to commit such offence, therefore, he is required to be tried as an adult.

The Court analysed the provisions of Section 3 of the JJ Act which states General principles to be followed in the administration of the Act and Section 8 of the Act, which provides that the powers conferred on the Board by or under the said Act may also be exercised by the High Court and the Children's Court, when the proceedings come before them under Section 19 or in appeal, revision or otherwise.

"Moreover, this Section casts obligation upon the Board to ensure the informed participation of the child and the parent or guardian in every step of the process," it added.

Justice Tiwari highlighted that the preliminary assessment appertains to the: (i) mental and physical capacity of the child to commit such offence; (ii) the ability of the child to understand the consequences of the offence; (iii) circumstances in which the child allegedly committed the offence.

The judge added that since the exercise of making a preliminary assessment is a tedious task, therefore, the Board may take the assistance of experienced psychologists, psycho-social workers or other experts.

Notably, the explanation attached to this Section clearly postulates that the exercise of the preliminary assessment is not a trial but is solely to assess the capacity of the child to commit and understand the consequences of the alleged offence, the Court said.

Reliance was placed on Barun Chandra Thakur v. Master Bholu and Another, [2022 SCC OnLine SC 870], to underscore that the task of preliminary assessment is a delicate task with the requirement of expertise and has its own implications as regards the trial of the case. Consequently, directions were passed upon the Central Government for formulating specific guidelines in this regard.

The Court emphasised that in compliance with the directions rendered by the Supreme Court, the National Commission for Protection of Child Rights issued guidelines in April 2023 for conducting preliminary assessments under Section 15 of the JJ Act.

Testing the legality of impugned orders on anvil of the guiding principles, the Court found that, when the Social Investigation Report embodies a vivid finding regarding the C.C.L. being ignorant about the consequence of the act, therefore, the said report ought not to have been ignored by the J.J.B., rather it should have been purveyed equal importance before arriving at any conclusion on the aspect at hand.

Perusing the Social Investigation Report, Justice Tiwari pointed out that the, "Social Investigation Re- port voices that, the C.C.L. is the victim of parental neglect inasmuch as the C.C.L. is well attached with his mother, however, she is residing in her native village, and, his father did not take care well of him."

The Court also found from the Social Investigation Report that, C.C.L. is an introverted personality character such as self-judgmental attitude, focusing inner thoughts and ideas, self-aware thinking and he does not like group work.

The judge noted that the Board ignored all the above observations while making a preliminary assessment.

In light of the above, the Court remanded the case back to the J.J.B. for making a preliminary assessment afresh by adhering to the legal principles discussed in the order and within the time- frame prescribed.

Mr. Pratham Sethi, Advocate for the petitioner.

Mr. Manish Bansal, P.P., U.T. Chandigarh with Ms. Diksha Sharma, Advocate and A.S.I. Rampal Singh (I.O.)

Title: ABC (MINOR) v. STATE OF UNION TERRITORY CHANDIGARH

Citation: 2024 LiveLaw (PH) 423