Background
Before the enactment Juvenile Justice (Care and Protection of Children) Act, 2015, all persons who are below the age of 18 years were considered juveniles, and were tried under the Juvenile Justice (Care and Protection of Children) Act, 2000 by the Juvenile Justice Board. With the replacement of 2000 Act and by the virtue of 2015 Act, a further category of children between 16 to 18 years of age was carved out who are in conflict with the law, who committed or was involved in offences carrying a minimum punishment of seven years or more, to be considered as adults by the Children's Court after an assessment by the JJB.

With the judgment delivered by the division bench Supreme Court comprised of Justices Dinesh Maheshwari and Vikram Nath in Barun Chandra Thakur vs. Master Bholu case popularly known as the 'Ryan International School murder case' on 13 July 2022 some more clarity has come in the operationalization of this section. While declaring judgment the bench stated its concern as to in the absence of guidelines on carrying out of the preliminary assessment of a child in conflict with law to be tried as an adult, the JJB is left to use its unchecked discretion. In the said judgment, the liberty of taking the help of an expert was mentioned.

There is an urgent need to have guidelines considering the complex nature of the assessment. Through the judgment Court has left it open for the National Commission for Protection of Child Rights or the Central Government or the State Commission for Protection of Child Rights to consider issuing guidelines for the same.

Facts
A class 2nd student was found killed with his throat slit inside a washroom of the Ryan International School Gurugram in Haryana on 8th of September 2017. When the news spread over whole media, the case was transferred to CBI. The premier investigating agency did appraisable work and apprehended the accused who turned out to be a class 11th student (In accordance with section 74 of the Juvenile Justice Act the real name of the accused and the victim cannot be disclosed to the general public. Therefore the following names are assigned- 'Bholu' for the accused and 'Prince' for the victim).

The suspect was a minor of 16 years which made it a case of Juvenile Justice and Section 15 of the Juvenile Justice Act asks the Juvenile Justice Board to conduct a preliminary assessment of the juvenile charged for some offence to ascertain whether the said juvenile should be tried as an adult or as a juvenile.

Arguments from Complainant's/Appellant's side
Mr. Sushil Tekriwal, learned counsel argued on behalf of complainant/appellant that the phrase 'Best interest of child' or 'presumption of innocence' given by the Act does not provides immunity to children from criminal charges. The motive of the Act is to reform the child in conflict with law. The children between the age of 16 to 18, charged for heinous crimes have been assigned a separate class by legislature, therefore, protective cover may be denied.

The Act is not intended to provide shelter to the accused of heinous offences. Law is cleared through the language used, wherein, Board 'may' take help of experienced psychologists, psycho-social workers or other experts is mentioned. This word 'may' is required to be read as 'may' only, the discretionary power.

Even the word 'may' with respect to opinion of medical expert also used in section 101(2) of the Act, 2015. Findings of the medical board should have been left to medical experts as Court have no expertise in such matter. The report of the Medical Board shall be final and cannot be questioned before the Court.

All the reports regarding the child considered by the Board be remain confidential under section 99 of the Act, 2015. With regard to the power to call for and examine the records of an lower Court in order to check the legality and propriety of proceedings or orders made in cases, the revisional Juridiction of the High Court under section 102 is limited.

Arguments from the CBI appellant's side:
Arguments on behalf of the CBI-appellant were made by learned Additional Solicitor General Shri Vikramjit Banerjee. The attention CBI was drawn by the counsel on the statement of objects and reasons of the Act, 2015, whereby, the systems under the Act, 200 are considered as ill-equipped to handle 16-18 year older offenders, and which elucidates the observation of increase in heinous child offenders of the said age.

The counsel also pointed out the provisions under section 15 of the said Act which talks about preliminary assessment, of children above 16 years who have committed heinous crimes, to be conducted by board, wherein, Board 'may' take help of experienced psychologists, psycho-social workers or other experts is mentioned. It was also submitted that the said preliminary assessment is distinct from a trial. Section 103 of the Act, 2015 was also referred by the counsel, which lays down the requirement to follow procedure under Cr.P.C as far as possible.

Arguments from the Respondent's side:
Arguments on behalf of Respondent was made by Mr. Siddharth Luthra, learned Senior Advocate. Firstly he addressed the essential modification in the Act, 2015 as the exception created for the age of 16 to 18 years. In cases of heinous offences, as defined under section 2(33) of the Act, 2015, whereby, a child can be tried as an adult subject to the inquiry to be carried out in terms of section 14 and 15 and referred it as a scheme in the interest of child.

The counsel further mentioned that while conducting an inquiry under the Act, the Board ought to keep in mind the overall scheme of the Act. The Act, 2015 says that the Investigating Officer must be a trained Police Officer and should be capable of dealing with children and designated as a Child Welfare Police Officer (CWPO), whereas, in the present case the Investigating Officer was not a designated CWPO under the Act.

Further, section 107 requires the creation of a unit of special juvenile police to "exclusively deal with the children" and with the "aptitude, appropriate training and orientation". The circumstances should not be put before the Board, wherein, the child allegedly committed the offence and the charge-sheet of same should also not be present as it can influence the opinion of the Board.

Cases on which parties relied upon
On following cases, the aforementioned arguments of Complainant/Appellant relied upon:

• Kishan Paswan v. UOI
• Mukarrab v. State of UP
• Controller of Defense Accounts (Pension) and ors. v. S. Balachandran Nair
• Amit Kapoor v. Ramesh Chander & Anr
• Rajendra Rajoriya v. Jagat Narain Thapak and Anr
• Jabar Singh v. Dinesh

On following cases, the aforementioned arguments of CBI appellant relied upon:

• Balkaram v. State of Uttarakhand & Ors.
• Shilpa Mittal v. State of NCT & Another
• G. Sundarrajan v. Union of India & Ors.

On following cases, the aforementioned arguments of Respondent relied upon:

• Shilpa Mittal v. State of NCT & Another
• Bachahan Devi & Anr. v. Nagar Nigam, Gorakhpur
• Ankush Shivaji Gaikwad v. State of Maharashtra
• State of Bank of Travancore v. Mohammed Mohammed Khan
• Som Prakash Rekhi v. Union of India

Judgment
After the Judgment delivered by the bench by division bench of Justices Dinesh Maheshwari and Vikram Nath in the case of Barun Chandra Thakur vs. Master Bholu case, the meaning of the word 'may' in section 15 of the JJ Act got much more articulated. According to the Act, the Board 'may' take the help of experienced psychologists or psycho-social workers, or other experts to assess the children. On a superficial reading of the word "may" shows the discretionary power of the Board.

However, the Supreme Court interpreted it in a different manner. The Board under this Act shall consist of three members,

1. Judicial Officer First Class,
2. two social workers, &
3. a woman.

It is not necessary for the Board to be constituted while having an expert child psychologist.

According to the court when the Board does not have a practicing professional with a degree in child psychology or child psychiatry, the term "may" in Section 15 would operate in mandatory form and the Board shall required to take the assistance unless there is a specific reasons for not taking assistance. This places a lot of emphasis on the opinion of the expert and also brings a lot of clarity into the statute.

The method of assessment under Section 15 of the Act was the second question that the court dealt with. In this case, the Board relied heavily on the IQ score given by the psychologist. In the opinion of the Honorable Apex Court, it is a great error to consider the mental capacity as same to the ability to understand the consequences of the offense.

The court in this judgment interpret the use of the word "consequences ", which is a plurality, which means that the consequences have to be not only immediate but far-reaching into the future also, and these can impact the victim as well as the family of the victim, the accused child, and his family.

The Special Leave Petition filed on behalf of Bholu has been rejected and the Board will examine him again for the preliminary assessment. However he has already cross the age of maturity, and it remains to be seen what mechanism the Board will use to do the assessment.

Conclusion
This particular case is one of those cases which show that the language of the statute is required to be interpreted in the right manner. Interpretation section 15 of the Act was the major concern for the Court, which was resolved through this judgment. Now the court of the executive's role to issue detailed guidelines for the preliminary assessment starts. National Institute of Mental Health and Neuroscience (NIMHANS) has done considerable research in child psychology. The executive body should take the help of the premier institute to issue the required guidelines.

References:

1. https://theleaflet.in/child-in-conflict-with-law-why-the-absence-of-guidelines-may-result-in-arbitrary-decisions-for-the-juvenile-to-be-tried-as-adults/
2. Original Judgment

End-Notes:

• (Civil Misc. W.P. No. 5044 of 2020){paras 28(97) and 35 (v)}
• (2017) 2 SCC 210 (para 27)
• (2005) 13 SCC 128
• (2012) 9 SCC 469 (paras 12 and 13)
• (2018) 17 SCC 234
• (2010) 3 SCC 757
• (2017) 7 SCC 668
• Crl. Appeal No. 34 of 2020
• (2013) 6 SCC 620
• Crl. Appeal No. 34 of 2020(paras 1, 30, 31 and 34)
• (2008) 12 SCC 372
• (2013) 6 SCC 770 (paras 52 and 53)
• (1981) 4 SCC 82 (paras 19 to 23)
• (1981) 1 SCC 449 (para 63)