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The Delhi High Court recently observed that the process of extracting a confession from a child on the manner in which14 an offence is committed is “unconstitutional and beyond the scope of preliminary assessment report” under provisions of the Juvenile Justice (Care and Protection of Children) Act 2015. A division bench of Justice Mukta Gupta and Justice Anish Dayal made this observation in a criminal reference regarding guidelines to be followed by Juvenile Justice Boards (JJBs) to determine when a juvenile can be tried as an adult.
The guidelines pertain to the preparation of a preliminary assessment by a psychologist which is crucial to determine if a juvenile aged 16 years or above who has committed a heinous offence can be tried an adult.
During the hearing, counsel for child rights’ NGO, ‘HAQ Centre for Child Rights’, submitted a copy of the preliminary assessment report prepared by a psychologist. The court observed: “Under Clause 3 of the said report, it can be clearly noted that a confession is sought to be extracted from the child as to the manner in which the offence was committed and reasons thereof. This manner of seeking a confession from the child is unconstitutional and beyond the scope of a report of preliminary assessment to be prepared under Section 15 of the JJ Act.”
The HC further observed that two points in a questionnaire pertaining to a Social Investigation Report (SIR) prepared by a probation officer for children in conflict with law under the Act are “incorrect as a presumption is raised at the pre-trial stage itself that the child has committed the offence for the reason it notes in Sl. No. 42”.
Serial no. 42 requires the Probation Officer to note the alleged role of the child in the offence and record the reasons for the said alleged offence. “Most often, this SIR filled by the Probation Officer is also considered and pertinent at the time of preparing the preliminary assessment report under Section 15 of the JJ Act,” the court noted.
According to Section 15 of the JJ Act, where a child of 16 years of age or above has committed a heinous offence — a crime for which the minimum punishment is seven years imprisonment — the JJB is required to “conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence” before taking a decision whether the child needs to be tried as an adult. Prior to the 2015 amendment in the original JJ Act, all children below the age of 18 years were treated as juveniles.
The counsel for National Commission for Protection of Child Rights (NCPCR) sought three months’ time from the HC to submit a detailed report in terms of the decision of the Supreme Court in Barun Chandra Thakur Vs. Master Bholu & Anr. The counsel for the Delhi Commission for Protection of Child Rights sought eight weeks to furnish the report, which was granted by the HC and the matter has been listed for hearing on December 7.
The SC in its decision had directed the Centre, NCPCR and the State Commission for Protection of Child Rights (SCPCR) to consider issuing guidelines or directions to assist and facilitate JJBs in making the preliminary assessment for determining whether a child of 16 years of age and above can be tried as an adult for a heinous offence. The assessment is required to be done within three months from the date of first production of the child before the JJB. The apex court also said when the JJB does not comprise a practising professional with a degree in child psychology or child psychiatry, it would have to mandatorily seek assistance of experts. The case before the SC pertained to the murder of a class 2 student in a Gurgaon school in 2017 where the CBI had arrested a Class 11 student for the murder. After the JJB decided to try the juvenile as an adult, the Punjab and Haryana HC in October 2018 had directed the JJB to make a fresh assessment of whether the accused should be treated as an adult or a juvenile.
The amicus curiae appearing in the matter before the HC submitted that while Section 15 has not been challenged before the SC, however, sufficient guidance has been laid down with regard to manner of conducting the inquiry giving three important factors; firstly, mental and physical capacity of CCL to commit an offence; secondly, the ability of CCL to understand the consequences of the offence and thirdly, circumstances in which the accused allegedly committed the offence.
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