BHOLU Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) The present revision petiton has been filed by petitioner-Bholu (imaginary name of the child given by the Court) to challenge the impugned order dated 21.05.2018 passed by the learned Additional Sessions Judge, Gurugram, upholding order dated 20.12.2017 passed by the Juvenile Justice Board, Gurugram (here-in-after called as 'the Board'), whereby, the preliminary assessment as required under the provisions of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (here-in-after called as 'the Act, 2015') has been made.

(2.) Briefly, the facts of the case, as made out in the present petition, are that a child aged about seven years, who was a student of 2nd Class, was found lying in an injured condition in the washroom of the school. He was immediately shifted to the hospital, where, he was declared dead. Initially, the investigation of the case was conducted by the local police but thereafter, the investigation of the case was handed over to the Central Bureau of Investigation. During investigation, it was found that the student of the same school i.e the petitioner was found to be involved in the commission of offence, who was more than 16 years of age but less than 18 years. The imaginary name was given to the juvenile, who was in conflict with law as Bholu. By considering his age as well as physical and mental fitness, he was to be assessed by the Board as to whether he could be tried as an adult by the trial Court or not. A preliminary assessment was done by the Board as per provisions of Section 15 of the Act, 2015 vide order dated 20.12.2017 by holding that he was to be tried as an adult in view of provisions of Section 18(3) of the Act, 2015. Said order of assessment made by the Board was challenged by way of filing appeal before the Additional Sessions Judge, Gurugram which was dismissed vide order dated 21.05.2018 by upholding the order passed by the Board stating that there was no illegality and perversity in the order.

(3.) Learned senior counsel for the petitioner submits that the inquiry conducted by the Board before passing the impugned order as required under sub Section 3 of Section 18 of the Act was not as per spirit of Section 15(1) of the Act. Only the general questions were put to the petitioner and no question regarding the offence committed and consequences thereof were put to him. Learned counsel also submits that the petitioner was apprehended on 07.11.2017. He and his father were called for normal conversation to the Office of Central Bureau of Investigation but he was intimidated, coerced, manhandled and also got separated from his father during questioning by putting undue influence. The statutory provisions contained under Section 15 of the Act for conducting preliminary assessment to assess the mental and physical capacity of the juvenile, in conflict with law, to commit a heinous offence and ability to understand the consequences of said offence and also the circumstances, under which, he allegedly committed the offence, were not followed. Neither the documents relied upon by the Board were supplied to the juvenile nor his parents and even the application submitted by him was dismissed. It is also the argument of learned counsel for the petitioner that while making the preliminary assessment, the child/juvenile is presumed to be innocent unless it is otherwise proved as provided under Rule 10-A(3) of the Juvenile Justice (Care and Protection of children) Model Rules, 2016 (here-in-after referred to as 'the Rules, 2016'). The purpose of preliminary assessment of the juvenile is to find out the physical and mental capacity of the juvenile, ability to understand and consequences of the offence committed by the juvenile and also the circumstances, under which, he had committed the alleged offence. As per Section 15 of the Act, 2015, the Board can have the assistance of any psychologist or any other expert. Dr. Joginder Kairo, Clinical Psychologist, P.G.I.M.S. Rohtak, who conducted two tests upon the juvenile, suggested that for further assessment, the juvenile may be sent to the Institute of Mental Health, University of Health Sciences, Rohtak but no such assistance has been taken in spite of giving suggestions by the aforesaid doctor. Learned counsel further submits that the Board has completely ignored not only the provisions of the Act but Rules as well. The report is based on inappropriate tests, namely, Coloured Progressive Matrices (CPM) and Malin's Intelligence Scale for Indian Children (MISIC) meant for children between the age group of 5-11 and 5-15, which were taken as the basis for the determination of the mental capacity of a child of 16 years. Learned counsel also submits that this fact was brought to the notice of the Board as well as the Appellate Authority but still it was not considered. A specific request was made to cross-examine the psychologist but such request made by the petitioner was also rejected. The copies of the reports were not supplied to the petitioner to cross examine the psychologist and the request was rejected. It is also the argument of learned counsel for the petitioner that every child is presumed to be innocent up to the age of 18 years and he/she has a right to be heard and required to participate in all the proceedings and decisions affecting his interest by giving due regard to his/her age and maturity. The juvenile has a right of privacy and confidentiality which is mandatory to be maintained but the right of confidentiality and privacy has been mis-interpreted by the Board as well as by the lower Appellate Court. Learned counsel also submits that the CBI itself has admitted in the proceedings before the Board as well as before the Appellate Authority that no such trained officers were available for investigation so as to reach to the logical conclusion in view of special provisions of the Act. The three parameters for making preliminary assessment i.e the mental and physical capacity, ability to understand the consequences of the offence and the circumstances under which the alleged offence has been committed are necessary to be followed but said parameters have not been considered/followed as no such finding has been given by the Board so as to reach to the conclusion that the juvenile was well aware about the consequences of the offence committed by him and his mental and physical capacity was such that he was well aware about the nature of offence and the consequences thereof. The test conducted to determine the IQ of the juvenile was for the children up to the age of 15 years and none of the tests conducted were designed for the children above 15 years of age. Even in those tests conducted by the Board, the IQ of the petitioner was below normal i.e 95, which shows that as per said test, the mental age of the petitioner was not even of 15 years. At the end, learned counsel for the petitioner submits that even the principles of natural justice were not followed by both the Courts below as no opportunity was given to the petitioner or his parents to rebut the reports in question. A very short period was given to them to go through the reports but copies thereof even were not supplied to them.