Full Text
HIGH COURT OF DELHI
JUDGMENT
AMIT RAJAK .....Petitioner
Through: Mr. S. S. Rawat, Advocate
Through: Mr. Rajkumar, APP for the State.
1. By way of this revision petition, the petitioner assails order dated 06.11.2023 [hereafter „impugned order‟], passed by the learned Additional Sessions Judge-06/Children‟s Court, East District, Karkardooma Court, Delhi [hereafter „Children’s Court‟], in case arising out of FIR bearing no. 181/2021, registered at Police Station Mayur Vihar, Delhi, for the commission of offence punishable under Sections 376/506 of the Indian Penal Code, 1860 [hereafter „IPC‟] and Section 6 of the Prevention of Children from Sexual Offences Act, 2012 [hereafter „POCSO Act‟].
2. Vide the impugned order, the order dated 12.04.2022, passed by the learned Principal Magistrate, JJB-IV, East District, Vishwas Nagar, Delhi [hereafter „Magistrate‟] had been upheld.
3. The FIR in this case was registered on the complaint of „S‟ i.e. mother of the victim, who alleged that her minor daughter „K‟, aged about six years, used to take tuition from the accused Amit (CCL) for the last three months. It was alleged that on 06.04.2021, her daughter had informed her that during tuition classes, the accused used to kiss her on her vagina after removing her undergarments. It was further alleged that CCL used to put his private part in the mouth of the victim. As alleged, when the victim would object or cry, the accused would beat her up and also threaten to kill her. It was further alleged that the accused had even threatened her with a knife and also threatened to throw her from the stairs; he would also drag her on the floor and would put his foot on her face to intimidate her. The said incidents continued for a period of one month, when finally the victim complained the same to her mother. On the basis of the aforesaid allegations, the present FIR came to be registered on 09.04.2021.
4. The present petitioner/accused Amit was apprehended and arrested on 10.04.2021 and was produced before the Principal Magistrate, JJB-IV, East District, Vishwas Nagar, Shahadra, Delhi [hereafter „JJ Board‟], who ordered him to be kept in protective custody at OHB-II. The statements of the victim and her mother were recorded under Section 164 of the Cr.P.C. on 12.04.2021. During investigation, age proof of the accused was obtained from his first attended school, as per which his date of birth was revealed as 21.08.2003. Thus, he was found to be aged about 17 years and 7 months at the time of commission of offence. The date of birth of the victim was found to be 03.02.2015; thus, she was aged about 6 years at the time of commission of offence.
5. Since the petitioner was below the age of 18, and was alleged of having committed a heinous offence, his Preliminary Assessment as mandated by Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 [hereafter „JJ Act‟] was carried out. Eventually, vide order dated 12.04.2022, the learned JJ Board formed an opinion that the petitioner herein was to be tried as an adult, and the matter was sent to the learned Children Court. The relevant portion of the findings of the Board reads as under:
child is fully developed like an adult. During her crossexamination by Ld. Counsel for the CCL, Clinical Psychologist, however, admitted that the assessment carried out by her was on the basis mental capacity existing as on the examination/interaction with the child and not on the basis of mental capacity existing at the time of offence. As per record, Clinical Psychologist had interacted with the CCL on 13.05.2021, 20.11.2021, 03.01.2022 and 06.01.2022. The offence in question had taken place in the month of April 2021 which was a month or two prior his first interaction and about 6 to 7 months prior to the subsequent interactions which were held for the purpose of carrying out the assessment. Even assuming that in these six months, CCL attained the level of maturity like that of an adult, however, then also the circumstances under which the alleged offence was committed go completely against the arguments being put forth by Ld. Counsel for the CCL.
8. As per the allegations, the victim was taking tuitions from the CCL for the period of three months and during the last one month, CCL took advantage of the fact that no one else was present in the room. He removed the underpants of the victim and he would kiss her on her vagina. He would also touch her on her private parts and would also put his penis in her mouth forcibly. When the victim cried, he would beat her up and threaten her not to disclose the incident to anyone.
9. The victim in her statement under section 164 Cr.P.C. has also stated that the CCL threatened her against disclosing anything to her mother, failing which he would gouge her eyes out using a knife. He would slap her and would also drag her on the floor and threaten to throw her from the roof of the house. The victim stated that she did not disclose the incident to her mother for a whole one month as she was being constantly and repeatedly threatened by the CCL. The mother Rakaroo the victim in her complaint also stated that she was told by her daughter that the CCL would also put his foot on her face and threaten to throw her down from the stairs.
10. The period during which the victim girl was being sexually abused by the CCL, at that time, the victim girl was a 6 years old toddler whereas the CCL was only a few months shy of 18 years. It was not the case where two adolescent children were exploring their sexuality rather the CCL deliberately and repeatedly sexually abused a toddler. It was not a one time incident rather the CCL continued to abuse the child sexually for a period of one month and the allegations show that in order to ensure that the victim girl does not report the incident to her parents, CCL threatened her by all possible means. He would drag her on the floor, put his foot on her face and would threaten to throw her down from the roof and to kill her in case she disclosed the incident to anyone. The same shows that the CCL was possessing that level of understanding that if the victim discloses the incident to anyone then he would be in trouble. This shows that the CCL very well understood that what he was doing was wrong and he also understood the consequences of his actions and that is the reason he would repeatedly threaten the child against reporting the incident to anyone.
11. On the basis of above, it is pellucid that the CCL possessed physical and mental capacity to commit the offence as there is nothing on record to show otherwise. Even if the report of Clinical Psychologist is not taken into consideration, then also, the allegations coupled with the circumstances under which the of committed, reflects upon the mental state of the mind of the Cy same shows that the CCL very well understood the consequences of his actions that he was committing an offence and he tried his best to conceal the same. The above discussion shows that the CCL had attained level of maturity which is not expected out of a child and his actions and efforts to conceal the offence reveal that he acted like an adult. Nothing to the contrary could be shown on behalf of the CCL.
12. In view of above, the Board is of the considered opinion that there is need for trial of the CCL AR as an adult. Accordingly, in terms of Section 18(3) of J.J. Act, trial of the case stands transferred. Let the present case file be put up before Ld. Principal District and Sessions Judge(East), Karkardooma Courts, Delhi, with a request to send the same to Ld. Children Court for trial as per Law, on 22.04.2022 at 2 p.m.”
6. Being aggrieved by the said order of the learned JJ Board, the petitioner had filed an appeal under the provisions of Section 101 of the JJ Act – assailing the order of the learned JJ Board before the learned Children Court – which was dismissed vide the impugned order dated 06.11.2023. The relevant findings of the learned Children Court are as under: “7. Vide order dated 09.09.2021, the age of the CCL 'AR' has been ascertained to be more than 16 years and less than 18 years of age as on the date of commission of offence and was declared child in conflict with law (CCL) for the purpose of Juvenile Justice (Care and Protection of Children) Act, 2015 (in short to be referred as "J.J. Act" hereinafter). The preliminary assessment as prescribed under Section 15 of J.J. Act was conducted by the Board on 18.11.2021 and 03.01.2022 whereby it was inferred that the thinking capacity of the CCL is at abstract level which is the highest level of formation of thought process. The assessment was carried out by various means and interaction with the CCL including interview, behavioral and mental examination, personal history, etc.
7.1. The Clinical Psychologist was also examined as BW[1], who affirmed her report before Ld. Trial Court/Juvenile Justice Board. BW[1] Dr. Priyanka, Clinical Psychologist deposed that in her opinion, the CCL has attained the higher level of thinking process. She further stated that according to that CCL has the mental capacity to plan and execute the offence. She further stated that CCL is able to understand the consequences of offence. She further stated that higher level thinking process means that the brain of the child is fully developed like an adult.
7.2. Upon cross-examination, it was stated by her that the CCL has never misbehaved during the assessment sessions and that he attains the age of majority before second session was conducted. She also affirmed that inference drawn was on the basis of mental capacity of CCL as on date of examination/interaction and not on the basis of mental capacity existing at the time of the offence. She was, however, not aware that CCL had informed the Board that "since the time, you have engaged a private Advocate, you have started denying your involving in the offence".
8. It was argued on behalf of the CCL before the Ld. Juvenile Justice Board that CCL does not possess the mental ability to understand the consequences of the offence. It was further argued that the Psychologist had deliberately prepared an adverse report against the CCL. It is further argued that the Psychologist could not have assessed the mental state existing at the time of offence as the assessment was done much later.
9. From perusal of the impugned order it is very clear that while passing the said order, the Ld. Principal Magistrate has taken into consideration the circumstances under which the offence has been committed. The circumstances under which the offence was committed reflects that CCL made sure that there was no eye-witness to the offence, fact that grievous offence was committed on a six years old girl and threatened to stay quiet all goes to show that the CCL very well understood what he was doing. He also understood the consequences of his actions that he was committing an offence and he tried his best to conceal the same, which shows that the CCL had attained the level of maturity which is not expected out of a child. Nothing in the cross of BW[1] reflects that there is any wrongful assessment or a deliberate adverse report prepared to prejudice the child.
10. The heinous offence has been alleged to have been committed by the CCL, who has completed the age of 16 years, is rather 17+ years (DoB: 21.08.2003) at the time of the alleged act. His first preliminary assessment was conducted on 18.11.2021 when he had already attained the age of 18 years. As per Section 14(3) a preliminary assessment in case of heinous offences under Section 15 shall be disposed of by the Board within the period of three months from the date of first production of a child before the Board is mandatory. The period can be extended for the reasons to be recorded in the order. In the present matter, the CCL was declared so vide order dated 06.09.2021 and directions for preparing PA/PMD report was filed on 27.11.2021 after having sought extension of time and the second report was filed on 03.02.2022.
11. The assessment was undertaken within the period of limitation. The CCL is not suffering from any mental incapacity. The character and conduct of CCL is stated in the PA report. The circumstances under which the offence has been committed has also been taken into account by the JJB. In view of the above discussion, I am in agreement with the findings of Ld. Trial court and am of the considered view that the impugned order dated 12.04.2022 passed by Ld. Principal Magistrate, JJB is in accordance with law and there is no illegality, infirmity or irregularity in the impugned order. The appeal is, therefore, dismissed.”
7. Resultantly, the petitioner has approached this Court, impugning the aforesaid orders.
8. The learned counsel appearing for the petitioner argues that the order passed by the learned Children‟s Court is against the principles of natural justice as it has failed to consider that the petitioner is a student and a first-time offender. It is argued that the petitioner does not possess the mental ability as an adult to understand the consequences of the alleged offence. Specifically, it is argued that the learned Children‟s Court has failed to appreciate the crossexamination of the clinical psychologist, as she had deliberately prepared an adverse report against the petitioner, and the Psychologist could not have assessed the mental state of the CCL existing at the time of the offence, as the assessment was done much later. It is also contended that the Courts below did not apply their judicial minds on the crucial aspect of the timeline prescribed for concluding the preliminary assessment in case of heinous offences by the Board under Section 15 of the JJ Act, which is 3 months from the date of first production of the child before it according to Section 14(3) of the JJ Act. However, in the present case, the assessment was conducted on 18.11.2021 and 03.01.2022, which was about 7 and 9 months after the first production of the petitioner/revisionist before the learned JJ Board. Furthermore, it is also pointed out that the said assessment report was prepared by the clinical psychologist on the basis of the interactions which were held after 8 to 10 months of the commission of the alleged offence. Accordingly, it is prayed that the impugned orders passed by the learned JJ Board as well as the learned Children‟s Court be set aside and the matter be remanded back for trial before the learned JJ Board.
9. The learned APP for the State, on the other hand, has vehemently opposed the present petition on the ground that the impugned orders passed by the Courts below do not suffer from any infirmity or perversity so as to warrant an interference therewith. It is argued that the offences alleged against the petitioner are serious and heinous in nature; the allegations being very specific, cogently indicating a mature state of mind of the CCL at the relevant point of time. It is argued the trial ought to be conducted by holding the petitioner as an adult and thus, the present petition be dismissed.
10. This Court has heard the arguments of the learned counsel for the petitioner and the learned APP for the State, and has perused the material available on record.
11. The petitioner in the present case has assailed the impugned orders, on the ground that firstly, he did not have the mental capacity at the relevant point of time to commit the offence and also could not have understood the consequences of his act as he was below the age of 18; and secondly, that the preliminary assessment of the petitioner was not concluded within the prescribed period of 3 months and was rather delayed.
12. To appreciate the contentions of the petitioner, it would be first germane to briefly take note of the scheme of JJ Act, especially the provisions qua the preliminary assessment of a CCL. In this regard, Section 15 of the JJ Act is set out below:
13. In view of Section 15, if a child, above the age of 16 years, is alleged to have committed a heinous offence, the learned JJ Board is required to conduct a preliminary assessment with regard to the mental and physical capacity of the child to commit such an offence, ability to understand the consequences thereof, as well as the circumstances in which the child allegedly committed the offence. If the preliminary assessment conducted by the learned JJ Board indicates the need that the child should be tried as an adult, the learned JJ Board can transfer the case to the Children‟s Court, which has jurisdiction to try such offences.
14. Furthermore, as per Section 14(3) of the JJ Act, in case of heinous offence under Section 15, the preliminary assessment is to be carried within a period of 3 months from the date of first production of the child before the learned JJ Board. However, proviso to Section 14(4) also provides that for the reasons to be recorded, the concerned Magistrate shall extend the time period for completion of inquiry in case of serious or heinous offences, if the Board requests for such extension.
15. The issue as to whether the time period of 3 months prescribed under Section 14(3) of the JJ Act was mandatory or not, was adjudicated upon by this Bench in case of CCL v. State (NCT) of Delhi: 2023 SCC OnLine Del 5063, wherein it was held as under:
legislation so as to vitiate the entire trial, or whether permission for extension of time to conclude preliminary assessment is obtained from the Court concerned, will have to be examined by the Courts in the given set of facts and circumstances of a case. Some relevant factors while deciding so, of course, would be the duration of delay, age of juvenile at relevant points of time i.e. at the time of commission of offence, at the time of assessment by psychologists etc., and at the time of interaction with assessment by JJ Board, among other factors.” (Emphasis added)
16. The above-noted decision of this Bench was expressly approved by the Hon‟ble Supreme Court in CCL v. State of Karnataka & Anr.: (2024) 8 SCC 473 wherein it was held that the time period of 3 months to carry out the preliminary assessment of a child is not mandatory, but only directory in nature, and the same can be extended by the Magistrate concerned.
17. In the above backdrop, this Court now proceeds to examine the merits of the present case. At the outset, it is to be noted that the petitioner herein was produced before the learned JJ Board for the first time on 10.04.2021, when he was ordered to be kept in protective custody. Thereafter, the record reveals that he remained in quarantine for a period of about 14 days, and vide order dated 24.04.2021, it was recorded that the petitioner had come out of the quarantine period. Subsequently, the order dated 07.05.2021 records that the Social Investigation Report (SIR) had been received from the Probation Officer. On the same date, Ms. Priyanka, Clinical Psychologist, was also directed to hold counselling sessions with the petitioner and to submit her report before the learned JJ Board. The order dated 29.05.2021 reflects that the terms of both the members/social workers of the JJ Board had expired on 20.05.2021 and fresh appointments had not been made by that date. In the meantime, however, the counselling sessions of the petitioner continued, as is evident from the order sheets of the learned JJ Board. Vide order dated 06.08.2021, the petitioner was admitted to bail, though it is pertinent to note that two of his earlier bail applications had been dismissed. On 06.09.2021, the learned Principal Magistrate, JJ Board, observed that as per the attested and verified school record of the petitioner, his date of birth was 21.08.2003 and, therefore, he was less than 18 years of age at the time of the commission of offence. Accordingly, he was declared a „child in conflict with law‟
(CCL) for the purpose of the JJ Act. It was thereafter that the preliminary assessment of the petitioner in terms of Section 15 of the JJ Act was formally initiated. The clinical psychologist was directed to prepare the requisite report and submit the same before the JJ Board at the earliest.
18. The record further reflects that the clinical psychologist undertook multiple sessions with the petitioner for the purpose of preliminary assessment, and on some occasions, more time was sought for completion of the report. The preliminary assessment report was eventually filed before the learned JJ Board on 03.02.2022. Thereafter, the clinical psychologist was examined and cross-examined, and following arguments from both sides, the order of preliminary assessment was passed by the learned JJ Board on 12.04.2022.
19. While it is apparent that the preliminary assessment report was placed before the learned JJ Board only in February 2022, i.e. about ten months after the apprehension of the petitioner, certain relevant factors emerge from the record which explain the delay in conclusion of the preliminary assessment. Firstly, it was a period when the Covid-19 pandemic was at its peak. This is evident even from the order sheets of the learned JJ Board, where it was recorded that the petitioner had been kept in quarantine and that documents filed before the Court were being kept separately for a certain period before being taken on record. Secondly, during the initial months when the petitioner was in protective custody, he was also appearing for his Class XII examinations. Nevertheless, his counselling sessions with the clinical psychologist were being conducted throughout this period. Thirdly, it is of significance that the petitioner was formally declared CCL only after the receipt of verified age records from his first attended school, which confirmed that he was below 18 years at the time of commission of offence. However, as revealed from records, it is also undisputed that the clinical psychologist Dr. Priyanka had interacted for the first time with the petitioner on 13.05.2021, i.e. within about one month of the commission of alleged offence, when the petitioner was aged about 17 years and 8 months. Thus, even though subsequent sessions took place in November 2021 and January 2022, the same clinical psychologist had interacted with him earlier and had also submitted counselling reports before the learned JJ Board at an earlier stage.
20. In light of above discussion, the argument of the petitioner that since the offence was allegedly committed in April 2021 and by the time he was examined for the purpose of preliminary assessment, i.e. about six months after the commission of the offence, he would have attained a level of maturity which he may not have possessed at the time of commission of the offence, is without any merit. This contention is untenable not only from the attending circumstances of the present case and the manner in which the offence was allegedly committed, but also from the specific findings contained in the preliminary assessment report, which this Court shall now discuss.
21. In the Social Investigation Report, which had been prepared as early as in April 2021 by the Probation Officer Ms. Kavita Gupta, it was reported that the petitioner had gone to the police station along with his father and had surrendered himself. The petitioner had also accepted his guilt in the present case and stated that he would not repeat the same mistake in the future. The reasons disclosed by the petitioner for committing the alleged offence were parental neglect and lack of sex education. The analysis of contributing factors by the Probation Officer reflected that the petitioner was living in a vulnerable social environment.
22. Further, a counselling session report dated 15.05.2021 was prepared by the Clinical Psychologist, Dr. Priyanka, who recorded that in the counselling session held on 13.05.2021, the petitioner had disclosed to her that he knew the family of the victim since childhood and that he had been taking tuition classes of the victim for about three to four months. He admitted that on one occasion, he had pulled off her pants and had put his private part in the mouth of the victim. He further disclosed that one week prior to the incident, his friends had been discussing such sexual acts. It was also reported by Dr. Priyanka that the petitioner did not show any remorse or regret for his conduct.
23. Thereafter, pursuant to initiation of preliminary assessment proceedings, the Clinical Psychologist Dr. Priyanka conducted further sessions with the petitioner on 20.11.2021 and 03.01.2022. Though by that time the petitioner had already attained majority, the earlier counselling report prepared in May 2021 was also taken into account. It is material to note that the preliminary assessment report was prepared by the same psychologist who had interacted with the petitioner from the very beginning. In her assessment report, Dr. Priyanka observed that although the petitioner had initially admitted his guilt, he had later completely denied his involvement in the commission of the offence. On the aspect of mental and physical capacity to commit the offence, Dr. Priyanka reported that the petitioner was mentally fit and that his thinking process was at an abstract level, whereby he could think and act with an understanding of the pros and cons of a situation. His judgment in all areas was reported to be up to the mark and he had no physical deformities. It was further noted that the petitioner was able to understand the consequences of the offence, which was evident from the fact that he kept changing his version from admission to denial.
24. The Clinical Psychologist, Dr. Priyanka, was also examined before the learned Principal Magistrate of the JJ Board on 06.04.2022, where her statement was recorded. She testified that her final opinion regarding the petitioner was that he had attained a higher level of thinking process, had the mental capacity to plan and execute the offence, and was also capable of understanding the consequences of committing the offence. She categorically opined that the petitioner‟s brain was fully developed and functioned like that of an adult. Pertinently, nothing substantial could be elicited in her cross-examination by the defence counsel so as to discredit her findings.
25. It is also material to note that the present is not a case where the petitioner was just above the age of 16 years or had barely attained 17 years, but rather a case where he was about 17 years and 7 months old at the time of commission of the alleged offence, and was, in fact, acting as a tuition teacher of the six-year-old minor victim. The allegations levelled by the minor victim disclose repeated acts of sexual assault by the petitioner upon her, including removing her undergarments, touching and kissing her private parts, and forcing her to perform oral sex. These acts, as alleged, were carried out after ensuring that no other person was present in the house. The petitioner, it is further alleged, resorted to violence and intimidation to prevent disclosure by the victim, such as beating her, threatening to gouge her eyes with a knife, putting his foot on her face, and warning that he would throw her down the stairs. The statements of the minor victim and her mother, recorded under Section 164 of Cr.P.C., specifically corroborate this version. The continuation of such assaults over a period of time, coupled with the fact that the disclosure was made by the victim to her mother only after nearly a month, reflects both the continuous nature of the offence and the atmosphere of fear and coercion created by the petitioner.
26. The above allegations, taken together, demonstrate that the petitioner‟s mental capacity to understand the nature and consequences of his actions cannot be understated. The nature of the alleged acts, and the threats extended to secure the victim‟s silence, all point towards a sufficient degree of maturity and awareness of the wrongful character of his conduct. In view of these circumstances, and considering the preliminary assessment report, it can safely be held that the petitioner, who was aged about 17 years and 7 months at the relevant time, was fully conscious of the wrongful nature of his acts and their consequences, thereby making out a case for his trial as an adult.
27. As far as the issue of delay in concluding the preliminary assessment is concerned, as already discussed in preceding paragraphs at length, the same is not of material significance in the present case. The delay, when considered in light of the other circumstances, including the gravity and nature of the acts allegedly committed by the petitioner upon a six-year-old child, the findings in the preliminary assessment report, the counselling reports, the social investigation report, and the admitted fact that the petitioner was mature enough to be engaged in imparting tuitions, cannot be said to vitiate the proceedings. The delay must also be appreciated against the backdrop of the prevailing Covid-19 pandemic situation during the relevant period, which undeniably caused disruption and some delay in the conduct of judicial proceedings.
28. Therefore, in view of the foregoing discussion, no infirmity can be found with the impugned orders of the learned JJ Board and the learned Children‟s Court.
29. Accordingly, the present revision petition, along with pending application, if any, is dismissed.
30. It is however clarified that the observations made hereinabove are solely for the purpose of deciding present petition and the same shall have no bearing on the merits of the case during trial.
31. The judgment be uploaded on the website forthwith. DR.
SWARANA KANTA SHARMA, J SEPTEMBER 16, 2025 T.D./V.S.