While Assessing If Child Is To Be Tried As Adult, Mental Capacity Does Not Itself Imply That He Had Understanding Of Consequences: Punjab & Haryana HC

The Punjab And Haryana High Court reiterated that, for the purpose of assessing whether a child in conflict with law is to be tried as an adult, the mental capacity to commit an offence cannot be automatically construed as having the ability to understand the consequences of committing the offence.

The Court was hearing a Criminal Revision petition against an Order of the Juvenile Justice Board (JJB) directing to try a child in conflict with law as an adult and transferring his trial to a Children's Court. The JJB had concluded that the child in conflict with law, who was more than 16 years of age, had attained sufficient maturity and he was physically and mentally capable to commit such offence and understood the consequences of the alleged offence. The complainant in the case had alleged that the child in conflict with law had committed anal sex with the complainant's son.

A Single-Judge Bench of Justice Kuldeep Tiwari said, "In case, even if the child had the mental capacity to commit the alleged offence, then too it would not be construed that he automatically had the capacity to understand the consequence of his act.", citing the Supreme Court's Judgment Barun Chandra Thakur Vs. Master Bholu and Another (2022). The Court asked the JJB to reconsider their conclusions on the aspect of mental capacity to commit the alleged offence and understanding of consequences.

The complainant alleged that the child in conflict with law was playing near their house and took the cycle keys of complainant's son and on the pretext of returning them, took him to his house, asked him to perform oral sex on him and then committed anal sex.

The child in conflict with law was booked under Section 377 (Unnatural offences) of the Indian Penal Code, 1860 and Section 6 (Punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act, 2012. It was not a disputed fact that the child in conflict with law was more than 16 years of age on the date of the alleged incident.

As per the Juvenile Justice (Care and Protection of Children) Act, 2015, in cases where a 'heinous offence' is alleged to have been committed by a child above the age of sixteen, the Juvenile Justice Board is mandated to conduct a preliminary assessment with regard to their mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which they allegedly committed the offence. Based on such assessment, they may decide that there is a need to try such child as an adult. The Act specifies that the preliminary assessment is "not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence."

The child in conflict with law was before the High Court assailing the Order of the Principal Magistrate, JJB, Chandigarh to treat him as an adult for the purpose of the trial and transferring his trial to the Children’s Court having jurisdiction to try such offences. An appeal preferred against this Order, filed through his father before the Fast Track Special Court-cum-Children’s Court, was dismissed.

The Court observed that a preliminary assessment declaring a child to be tried as an adult has two major consequences: First, 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 JJB as a child, the maximum sentence that can be awarded is three years. Second, if the child is tried as a child by the JJB, 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.

Physical and mental capacity to commit the alleged offence

In order to assess the physical capacity of the child in conflict with law to commit the alleged offence, the JJB relied upon its own personal observations, besides relying upon the social investigation report and the medical report. The Board concluded that the child was a fit person and enough physical capacity to commit the alleged offence, a conclusion with which the High Court did not find any illegality and did not interfere with.

With regard to the child's mental capacity, the JJB anchored upon the social investigation report and medical report and concluded that he had to enough mental capacity to commit the alleged offence. The High Court, upon perusing the medical report, noted that the child was found to have an intelligent quotient of 86, therefore, falling in the age group of 14 or 15 years. The Court said the JJB's conclusion "requires reconsideration."

Ability to understand consequences

On the ability of the child to understand the consequences of the offence, the JJB had returned an affirmative finding. However, the High Court noted from the social investigation report that the Probation Officer had listed reasons and contributory factors as "Parental neglect, non attentive care of father and not knowledge about the consequences of the act."

The Court said the JJB should not have ignored the finding about the child in conflict with law's ignorance about the consequences of the act, considering that the apex Court in Barun Chandra Thakur had observed that mental capacity and the ability to understand the consequence of the offence are not the same thing.

"In case, even if the child had the mental capacity to commit the alleged offence, then too it would not be construed that he automatically had the capacity to understand the consequence of his act." the Court observed, adding, "Therefore, the issue as to whether the child had the ability to understand the consequences of the offence also requires reconsideration."

On the ability to understand consequences, the Supreme Court in Barun Chandra Thakur said, "The language used in section 15 is 'the ability to understand the consequences of the offence'. The expression used is in plurality i.e., 'consequences' of the offence and, therefore, would not just be confined to the immediate consequence of the offence or that the occurrence of the offence would only have its consequence upon the victim but it would also take within its ambit the consequences which may fall upon not only the victim as a result of the assault, but also on the family of the victim, on the child, his family, and that too not only immediate consequences but also the far-reaching consequences in future."

Based on this Judgment, the National Commission for Protection of Child Rights, in January 2023, has formulated draft guidelines for conducting the preliminary assessment.

Circumstances in which the alleged offence was committed.

On this aspect, the social investigation report stated that the child in conflict with law is a victim of parental neglect and while he is well attached with his mother, she is resides in her native village and his father did not take good care of him. It also stated that he has an introverted personality, a self-judgemental attitude and does not like to work in groups, the Court notes.

"All the above observations have been clearly ignored by the J.J.B. while making preliminary assessment. The circumstances prevailing around the C.C.L. are one of the important factors to be borne in mind for the purpose of making preliminary assessment in terms of Section 15." the Court said.

Procedural aspects

The Court concluded that apart from the above discussed "infirmities and irregularities, the basic procedural standards of fairness encapsulated in Section 3 of the Act of 2015, including the right to a fair hearing, rule against bias and right to review, have also not been adhered to by the J.J.B."

The obligation upon the JJB to ensure informed participation of the child and parent or guardian at every step of the process, was infringed, as the child in conflict with law and his parent or guardian were never made to participate at any stage of the process, the Court said. "Even the medical report and social investigation report were also not provided to them well before in time, rather only five minutes’ time was afforded to peruse the reports before addressing arguments." it observed.

The Court observed that, the JJB ought to have provided the relevant documents and reports well before in time to enable the child's parent or counsel to make proper assistance.

Conclusion

The Court had "no hesitation" in concluding that both the JJB's and the Children's Court's Order requires interference "as they have failed to pass the test of legality on the anvil of the hereinabove discussed settled principles of law." Allowing the revision petition, the Court remanded the case back to the JJB for making a fresh preliminary assessment.

"The object behind enactment of the Act of 2015 is not to punish the juveniles but to provide the such an atmosphere so that they can be reformed and ultimately be re-adjusted in the mainstream of the society." the Court said.

Cause Title: ABC(Minor) v. State of Union Territory of Chandigarh [2024:PHHC:168552]

Appearance:

Petitioner: Advocate Pratham Sethi

Respondent: Public Prosecutor Manish Bandal, Advocate Diksha Sharma and ASI Rampal Singh (IO)

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