Proviso to sec 15(1) of JJ Act - Assistance of experienced psychologists or Psycho-Social workers or other experts is mandatory

Proviso to sec 15(1) of JJ Act - Assistance of experienced psychologists or Psycho-Social workers or other experts is mandatory

Ojef Khan Vs State of MP

Madhya Pradesh HC

21/09/2021

CRR No. 2071/2021

About/from the judgment:

The High Court held that it is mandatory for Juvenile Justice Board to take the assistance of experienced psychologists or psycho-social workers or other experts while conducting a preliminary assessment with regard to a child's (in conflict with the law) mental and physical capacity to commit a heinous offence.

The Bench has held that for the preliminary assessment by Juvenile Justice Board as to whether a Juvenile ought to be tried by Children Court under Section 15 of the JJ Act, 2015, the Assistance of experienced psychologists or psycho-social workers or other experts would be mandatory.

Here, it may be noted that as per Section 18 (3) of the Act, if the Board, after preliminary assessment under section 15, passes an order that there is a need for a trial of the child as an adult, then the Board may order the transfer of the trial of the case to the Children's Court having jurisdiction to try such offences.

Holding thus, the word 'may' appearing in the proviso to Section 15(1) of the Act of 2015 would have to be read as 'shall'. The complete provision has been attached hereunder:

"Looking to the fact that the order transferring the case of Juvenile between 16 to 18 years of age to the Children Court in itself is a step which needs to be taken very cautiously looking to the far-reaching consequences and it would indeed be appropriate that the word 'may' be read as 'shall'," the Court further held.

The case before the Court

The Court was hearing a criminal revision filed against the order passed by the Additional Sessions Judge, Ratlam in Criminal Appeal as also the order passed by the Juvenile Court, Ratlam whereby the appeal against the order to try the applicant (accused of committing sexual intercourse) as an adult had been dismissed

His counsel argued that as per Section 15 (1) [reproduced above], even though the word 'may' has been used, but it was mandatory for the Juvenile Justice Board to take the assistance of experienced psychologists and psychosocial workers while making the preliminary assessment with regard to judging the mental and physical capacity for ultimately passing an order under Section 18 (3) of the Act

On the other hand, the Public Prosecutor for the State submitted that the assistance of a psychologist and the psychosocial worker was not mandatory as the word 'may' has been used in Section 15 of the Act.

Court's observations

At the outset, relying on the treatise on Principles of Statutory Interpretation authored by Justice G. P. Singh, the Court concluded that when the word 'may' is used in an enactment in respect of a Court, the same has to be understood as 'shall'.

Now, the other question which the court had to decide was this - whether the Probation Officer can be considered to be an expert in the sense as described in the proviso to Section 15 of the Act and to answer this, the Court observed thus:

"An expert can be considered to be one, who by way of his profession deals with a specialized subject. Probation Officers are such professionals who on daily basis work with children in difficult circumstances, hence a Probation Officer fits the bill of 'other experts' as provided under Section 15 of the Act."

Further, adverting to the facts of the case, the Court noted that the manner in which the juvenile has responded to the questions of the Juvenile Justice board showed that he was articulate enough to respond in a manner showing his adequate capacity to understand the gravity of the offence and consequences thereof and, therefore, he had answered in a manner displaying his innocence and non-involvement in the crime.

Lastly, relying upon the report of the Probation Officer, the Court noted that the applicant lacked discipline, culture, morality, positive thoughts and he had a company of friends who are older to his age, there is lack of discipline from family, he does not obey his parents, is more of an independent-minded person.

Thus, noting that the Juvenile Justice Board had taken into account various aspects to arrive at its conclusion which was rightly been affirmed by the appellate court, the High Court too, found that no error of fact or law was there in the orders and, therefore, the revision was liable to be rejected and was accordingly rejected.

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