Punjab & Haryana High Court Refuses To Treat Juvenile Booked Under POCSO Act As 'Adult' Based On Psyche Assessment Done With 5 Yrs Delay

The Punjab and Haryana High Court has set aside the order of a Children's Court which tried a juvenile booked under the Protection of Children from Sexual Offences Act (POCSO) Act as an adult.

As per Section 15(1) of the Act, a Juvenile Justice Board (JJB) is required to make a preliminary assessment regarding the juvenile's mental and physical capacity to commit an offence and the ability to understand its consequences along with the circumstances under which allegedly the offence was committed.

Section 14(3) states that the preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within three months from the date of first production of the child.

Justice Sanjeev Prakash Sharma and Justice Sanjay Vashisth noted that preliminary assessment of the child herein, to examine his psyche as on the date of alleged incident, was conducted after more than five years and "by that time and it is practically impossible to assess a person of his psychology what he would have been thinking five years back."

"The entire exercise is found to be an eye-wash and deserves to be set aside. We, therefore, hold the appellant not to be fit to have been tried as an adult," the bench added.

The Court found that the child was arrested on the day of alleged incident i.e. 30.05.2018. The preliminary assessment as required under Section 15 of the JJ Act was conducted after an application was moved by the Prosecutor on 28.09.2021. The Child had attained the age of 20 years 6 months by then. "The very purpose of the provisions of limitation of three months laying down under Section 14(3) of the JJ Act stands frustrated," the Court thus remarked.

Justice Vashisth also highlighted that after reaching to the conclusion that the juvenile is to be tried as an adult, the proceedings were required to be conducted against the Child in Conflict with the Law (CCL) afresh under CrPC.

However, the Court noted that the Children's Court "crossed all limit of errors", because the proceedings were to be started by examining the police report and then to frame the charge-sheet, and then to record the statements of the prosecution witnesses before it. Complete prosecution evidence was also required to be put to CCL, as per Section 313 Cr.P.C.

"None of these proceedings were conducted. To the utter surprise of this Court, such a proceeding is rarely heard of, whereafter, accused is convicted of an offence and then sentenced for a period of 20 years, without there being any trial as per law," the bench added.

These observations were made while hearing an appeal against conviction for offence under Section 6 of the POCSO and provisions of IPC, wherein a juvenile was tried as an adult and sentenced to rigorous imprisonment of 20 years for committing sexual assault against a 4-year-old girl.

After examining the submissions, the Court noted that the alleged offence was committed on 30.05.2018, and the CCL was arrested on the very same day and was also interrogated on 31.05.2018 i.e. next day. After completion of evidence, statement under Section 313 Cr.P.C., was recorded on 03.01.2020 by the Board, as per the proceedings recorded in the summons case.

Suddenly, after period of 3 years & 4 months from the date of incident and arrest of the CCL, on 28.09.2021, the Public Prosecutor "woke up" and moved application under Section 15 of the JJ Act for conducting preliminary assessment, Court noted.

The order under Section 18(3) of the JJ Act (Orders regarding child found to be in conflict with law), was passed by the JJB on 22.03.2022 and exercising the power under Section 19 of the JJ Act, the Children's Court also on 02.04.2022 passed order for conducting trial as per Cr.P.C, it noted further.

The division bench highlighted that, "In all this process, period of about 4 years (3 years & 11 months) had passed and very purpose of fixing time period for conducting inquiry and preliminary assessment has been made to suffer in the present case."

"No legislative purpose is left, even if the law, which is directory in nature, is given complete go-bye, by the Courts of law. Right of none else is effected than of the CCL-Dxxx in the present case, whose rights were otherwise required to be protected by the special Statute i.e. JJ Act. Thus, the very objective of the Statute has been defeated," the Court opined.

Consequently, the Court set aside the order of the JJB to try juvenile as an adult and treated him as CCL.

The bench examined the evidence placed before it and found the appellant to be a child and found him guilty of having committed the offence of penetrative sexual assault in terms of Section 5 read with Sections 29 and 30 of POCSO and also guilty of offences under Sections 341, 342 and 506 IPC and accordingly sentenced him to the maximum punishment, which may be provided to a child i.e. of three years.

Since the appellant had already remained incarceration for 3 years and 9 months, it held that the appellant had already undergone the complete sentence period.

While referring to Nipun Saxena and another v. Union of India and others, the bench further recommended Rs.5 lacks compensation to the victim.

Mr. Arjun Sheoran, Advocate and Mr. Rohan Gupta, Advocate for the appellant.

Mr. Sharan Sethi, Addl. Advocate General, Haryana for the respondent(s) – State of Haryana.

Title: XXXX v. XXXX