Supreme Court: In an appeal filed by the Child in Conflict with Law (‘CCL’) against the order passed by Karnataka High Court, wherein the Court set aside the order passed by the Additional Juvenile Justice Board (‘JJB’) and directed the Board to transmit the record to the Children’s Court for trial of the CCL as an adult, the division bench of CT Ravikumar and Rajesh Bindal*, JJ. has held that the provision of Section 14(3) of the Act, providing three months for completion of a preliminary assessment under Section 15 of the Act, is not mandatory, and is directory. The period can be extended, for the reasons to be recorded in writing, by the Chief Judicial Magistrate or the Chief Metropolitan Magistrate.
Further, the Bench said that there is no error in the exercise of revisional jurisdiction by the High Court, or in the order passed by the High Court dealing with the procedure as provided for under the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’) in terms of Section 7(4) thereof.
The Bench also held that the Order passed by the Board as signed by the Principal Magistrate on 05-04-2022 was final. However, the same is subject to the right of appeal of the aggrieved party. The CCL was allowed to appeal against the aforesaid order within 10 days from the date of this judgment. The appellate authority was directed to decide the same within two months from the date of filing.
Background:
An FIR was registered against the CCL for commission of offences under Sections 376(i), 342 of the Penal Code, 1860 (‘IPC’) and Sections 4, 5, 6, 7 and 8 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’). After his apprehension on 03-11-2021, the CCL was produced before the Board. On 09-11-2021, he was released on bail. After completion of investigation, charge sheet was filed. The Board was called upon to decide the issue as to whether the CCL is to be tried by the Board or as an adult by the Children’s Court. On 05-04-2022, the Principal Magistrate of the Board passed an order holding that as per preliminary assessment report and the social investigation report, the CCL is to be tried as an adult by the Children’s Court. However, when the file was put up before the Member of the Board for signatures, he recorded that he had a dissenting view to the abovesaid order and would pass a detailed order on the next date of hearing. On 12-04-2022 the matter was apparently heard afresh by two Members of the Board without there being the Principal Magistrate. The order was passed that, as per the preliminary assessment and social investigation report, the enquiry about the alleged offence committed by the CCL must be conducted by the Board as a juvenile.
An application under Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’) was filed by the complainant/mother of the victim before the Board for termination of proceedings and transferring the matter to the Children’s Court, to which objections were filed by the CCL. The Board dismissed this application. Impugning the aforesaid order, a revision petition was filed by the Complainant before the High Court, wherein the Court directed the Board to transmit the record to the Children’s Court for trial. Aggrieved, the CCL filed the present appeal.
Analysis and Decision:
The Court took note of the relevant provisions of the JJ Act and relevant Rules of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016. The Court also referred to the relevant provisions of POCSO.
Whether the period provided for completion of preliminary assessment under Section 14(3) of the Act is mandatory or directory?
The Court noted that Section 15 of the JJ Act, enables the Board to make preliminary assessment into heinous offences where such an offence alleged to have been committed by a child between 16 and 18 years of age. The preliminary assessment is to be conducted regarding his mental and physical capacity to commit such an offence, ability to understand the consequences of the offence and the circumstances in which it was allegedly committed. Proviso to the aforesaid section provides that for making such an assessment the Board may take assistance of an experienced psychologist or psycho-social worker or other experts As per the explanation, the process of preliminary assessment is not a trial but merely to assess the capacity of such a child to commit and understand the consequences of the alleged offence. While considering the appeal against an order passed under Section 15, the appellate authority can also take assistance of experts other than those who assisted the Board.
The Court took note of Barun Chandra Thakur v. Bholu, 2022 SCC OnLine SC 870, wherein the requirement of such assistance was held to be mandatory, even though the words used in proviso to Section 15(1) and Section 101(2) of the Act are ‘may’.
The Court also noted that Section 14(3) of the Act provides that the preliminary assessment in terms of Section 15 is to be completed by the Board within a period of three months from the date of first production of the child before the Board. In case the Board after preliminary assessment under Section 15 of the Act concludes that the trial of the CCL is to be conducted as an adult, then the Board has to transfer the records to the Children’s Court having jurisdiction.
In the present case, the Court noted that the CCL was produced before the Board on 03-11-2021, thus the period of three months having expired on 02-02-2022, any order passed by the Board thereafter is non-est, and the trial of CCL cannot now be transferred to the Children’s Court.
Concerning whether the timeline for the conclusion of inquiry by the Board for heinous offences is concerned, as envisaged under Section 14 is mandatory or directory, the Court said that there is no deadline after which either the inquiry cannot proceed further or has to be terminated.
Concerning the preliminary assessment into the heinous offence by the Board in terms of Section 15(1) of the Act, the Court said that it has to be concluded within a period of three months in terms of Section 14(3) of the Act. The Act does not provide for any extension of time or lay down the consequence of non-compilation of inquiry within the time permissible.
Thus, the Court said that in the absence of the provision prescribing time limit of completion of inquiry, it cannot be held to be mandatory. The intention of the legislature with reference to serious or heinous offences can be gathered from the language of Section 14 of the Act which provides for further extension of time for completion of inquiry by the Board to be granted by the Chief Judicial Magistrate or Chief Metropolitan Magistrate for the reasons to be recorded in writing. It is in addition to the two months’ extension which the Board itself can grant.
The Bench said that in the process of preliminary inquiry there is involvement of many persons, namely, the investigating officer, the experts, and thereafter the proceedings before the Board, and for different reasons any of the party may be able to delay the proceedings. Thus, the Court opined that the time provided in Section 14(3) cannot be held to be mandatory, as no consequences of failure have been provided as is there in case of enquiry into petty offences in terms of Section 14(4) of the Act.
Thus, the Court reiterated that where consequences for default for a prescribed period in a Statute are not mentioned, the same cannot be held to be mandatory.
The Court opined that the time provided in Section 14(2) of the Act to conduct inquiry is not mandatory but directory. The time so provided in Section 14(3) can be extended by the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, for the reasons to be recorded in writing.
The Court also passed the following directions:
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The words ‘Children’s Court’ and ‘Court of Sessions’ in Juvenile Justice (Care and Protection of Children) Act, 2015 and the 2016 Rules were directed to be read interchangeably. Primarily jurisdiction vests in the Children’s Court. However, without the constitution of such Children’s Court in the district, the power to be exercised under the Act is vested with the Court of Sessions.
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An appeal, under Section 101(2) of the Act against an order of the Board passed under Section 15 of the Act, can be filed within 30 days. The Appellate Court can entertain the appeal after the expiry of the aforesaid period, provided sufficient cause is shown. Endeavour has to be made to decide any such appeal filed within a period of 30 days.
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In all the orders passed by the Courts, Tribunals, Boards and the Quasi-Judicial Authorities the names of the Presiding Officer and/or the Members who sign the orders were directed be mentioned. In case any identification number has been given, the same can also be added.
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The Presiding Officers and/or Members while passing the order shall properly record presence of the parties and/or their counsels, the purpose for which the matter is being adjourned and the party on whose behalf the adjournment has been sought and granted.
[Child in Conflict with Law v. State of Karnataka, 2024 SCC OnLine SC 798, decided on 07-05-2024]
*Judgment Authored by: Justice Rajesh Bindal
Know Thy Judge | Supreme Court of India: Justice Rajesh Bindal
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