Inquiry by the Board and the Preliminary Assessment

Sub-section (3). A preliminary assessment in the case of a heinous offence under section 15 shall be disposed of by the Board within three months from the date of first production of the child.

Sub-section (4), what happens if the time runs out. If the inquiry for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated. Proviso: for serious or heinous offences, where the Board requires further extension, it shall be granted by the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, for reasons to be recorded in writing.

Read sub-section (4) carefully; the two halves point in opposite directions. For a petty offence, delay kills the proceeding. For a serious or heinous one, delay is met by a further extension, but only from the Chief Judicial Magistrate or Chief Metropolitan Magistrate, and only on written reasons.

Sub-section (5), the steps for a fair and speedy inquiry.

(a) At the time of initiating the inquiry, the Board shall satisfy itself that the child has not been subjected to any ill-treatment by the police or by any other person, including a lawyer or probation officer, and take corrective steps in case of such ill-treatment; (b) the proceedings shall be conducted in as simple a manner as possible, and care shall be taken to ensure a child-friendly atmosphere; (c) every child brought before the Board shall be given the opportunity of being heard and to participate in the inquiry; (d) cases of petty offences shall be disposed of by the Board through summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure, 1973; (e) inquiry of serious offences shall be disposed of by following the procedure for trial in summons cases under that Code; (f) inquiry of heinous offences: (i) for a child below the age of sixteen years as on the date of commission of the offence, also under clause (e), that is the summons case procedure; (ii) for a child above the age of sixteen years as on the date of commission, in the manner prescribed under section 15.

Clause (a) is easy to skip and it is a favourite. Before it begins, the Board must satisfy itself that the child has not been ill-treated, and the section names not only the police but any other person, including a lawyer or probation officer.

Section 15: the preliminary assessment

Sub-section (1). In the case of a heinous offence alleged to have been committed by a child who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to:

• his mental and physical capacity to commit such offence;
• his ability to understand the consequences of the offence; and
• the circumstances in which he allegedly committed the offence,

and may pass an order in accordance with section 18(3).

Proviso. For such an assessment the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

Explanation. It is clarified that preliminary assessment is not a trial, but is to assess the capacity of the child to commit and understand the consequences of the alleged offence.

Sub-section (2), where the Board keeps the case. Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, it shall follow the procedure, as far as may be, for trial in a summons case under the Code of Criminal Procedure, 1973.

First proviso: the order of the Board to dispose of the matter shall be appealable under section 101(2). Second proviso: the assessment shall be completed within the period specified in section 14, that is three months from first production.

The structure of section 15 is worth stating plainly, because it is often described backwards. The assessment produces one of two outcomes. Either the Board keeps the case and disposes of it itself, following the summons case procedure, or it passes an order under section 18(3) transferring the case to the Children's Court for trial as an adult. And the first of those two, the order to keep the case, is the one the first proviso makes appealable under section 101(2).

Section 16: review of pendency

Sub-section (1). The Chief Judicial Magistrate or Chief Metropolitan Magistrate shall review the pendency of cases of the Board once in every three months, and shall direct the Board to increase the frequency of its sittings, or may recommend the constitution of additional Boards.

Sub-section (2), the high level committee. The number of cases pending, the duration of the pendency, its nature and the reasons for it shall be reviewed every six months by a high level committee consisting of:

• the Executive Chairperson of the State Legal Services Authority, as Chairperson;
• the Home Secretary;
• the Secretary responsible for the implementation of this Act in the State; and
• a representative from a voluntary or non-governmental organisation nominated by the Chairperson.

Sub-section (3). The Board shall furnish the information of such pendency to the Chief Judicial Magistrate or Chief Metropolitan Magistrate and the District Magistrate on a quarterly basis, in the prescribed form.

Sub-section (4), inserted by Act 23 of 2021 with effect from 1 September 2022. The District Magistrate may, as and when required, in the best interest of a child, call for any information from all the stakeholders including the Board and the Committee.

A worked example

A boy is produced before the Board. He was seventeen years and two months on the date of the offence, which is one for which the law prescribes a minimum of ten years.

Which class of offence is it? Heinous, section 2(33), because the minimum is seven years or more.

Which procedure applies? He was above sixteen on the date of commission, so section 14(5)(f)(ii) sends the matter to section 15.

What must the Board assess? His mental and physical capacity to commit the offence, his ability to understand the consequences, and the circumstances in which he allegedly committed it, section 15(1).

May it take help? Yes, from experienced psychologists or psycho-social workers or other experts, proviso.

Is this a trial of the offence? No. The Explanation says it is not a trial, but an assessment of his capacity to commit and understand the consequences.

By when? Within three months from the date of his first production, sections 14(3) and the second proviso to section 15(2).

The Board decides to keep the case. Then it follows, as far as may be, the procedure for trial in a summons case, section 15(2); and that order is appealable under section 101(2), first proviso.

The Board decides otherwise. Then it passes an order under section 18(3), which is the transfer to the Children's Court, taken up in the next chapter.

Change the facts: he was fifteen and eleven months on the date of the offence. Section 15 does not apply at all. The inquiry into the heinous offence goes under section 14(5)(f)(i), that is the summons case procedure, and no question of trial as an adult arises.

Change the offence to one carrying a maximum of two years. Petty, disposed of by summary proceedings, section 14(5)(d). And if that inquiry is still inconclusive after the four months and the two month extension, the proceedings stand terminated, section 14(4).

A serious offence, and the Board needs more time than six months. Only the Chief Judicial Magistrate or Chief Metropolitan Magistrate may extend it, and only for reasons recorded in writing, proviso to section 14(4).

At the start of the inquiry the boy says the police beat him. Section 14(5)(a) requires the Board to satisfy itself that he has not been ill-treated by the police or by any other person, including a lawyer or probation officer, and to take corrective steps.

The Board's cases are piling up. The Chief Judicial Magistrate reviews the pendency every three months and may direct more frequent sittings or recommend additional Boards, section 16(1); and a high level committee chaired by the Executive Chairperson of the State Legal Services Authority reviews it every six months.

Distinctions

What this does NOT mean

The age of criminal responsibility has not been lowered. A child remains a person under eighteen; section 15 creates a route by which one class of child may be tried as an adult, after an assessment.

The preliminary assessment is not a finding of guilt. The Explanation says it is not a trial; it goes to capacity and understanding, not to whether he did it.

It does not apply to every grave-sounding offence. It applies only to a heinous offence as defined by the minimum punishment test in section 2(33).

It does not apply to every older child. He must have completed or be above sixteen on the date of commission of the offence.

And an inquiry cannot run indefinitely. Four months, extendable by two, with termination for a petty offence and a CJM's extension for a serious or heinous one.

Quick revision

• 14(1) and (2): the Board holds an inquiry and may pass orders under sections 17 and 18; four months from first production, extendable by two months with reasons in writing.
• 14(3) and (4): a preliminary assessment within three months; a petty offence inquiry still inconclusive after the extension stands terminated; a serious or heinous one may be extended further only by the CJM or CMM, for reasons in writing.
• 14(5): satisfy itself the child has not been ill-treated by anybody, including a lawyer or probation officer; simple, child-friendly proceedings; every child heard and allowed to participate; petty, summary; serious, summons case; heinous below sixteen, summons case; heinous sixteen or above, section 15.
• 15(1): for a heinous offence by a child of sixteen or above, assess mental and physical capacity, ability to understand the consequences, and the circumstances; experts may assist; it is not a trial.
• 15(2): if the Board keeps the case, the summons case procedure, and that order is appealable under s.101(2); the assessment within the section 14 period.
• 16: the CJM or CMM reviews pendency every three months and may direct more sittings or recommend additional Boards; a high level committee under the Executive Chairperson of the State Legal Services Authority, with the Home Secretary, the implementing Secretary and an NGO representative, reviews it every six months; quarterly information to the CJM or CMM and the District Magistrate, who may also call for information from all stakeholders.

Test yourself

1. Within what time must the Board complete its inquiry? Four months from the date of first production of the child, extendable by a maximum of two more months by the Board after recording reasons in writing, section 14(2).

2. What happens if a petty offence inquiry is not concluded in time? The proceedings stand terminated, section 14(4).

3. Which children are liable to a preliminary assessment? Children who have completed or are above the age of sixteen years and are alleged to have committed a heinous offence, section 15(1) read with section 14(5)(f)(ii).

4. What does the Board assess? The child's mental and physical capacity to commit such offence, his ability to understand the consequences of the offence, and the circumstances in which he allegedly committed it.

5. Is the preliminary assessment a trial? No. The Explanation to section 15(1) clarifies that it is not a trial, but an assessment of the capacity of the child to commit and understand the consequences of the alleged offence.

6. Is the Board's decision to retain the case appealable? Yes. The first proviso to section 15(2) makes an order of the Board to dispose of the matter itself appealable under section 101(2).

7. Who reviews the pendency of cases before the Board? The Chief Judicial Magistrate or Chief Metropolitan Magistrate every three months, and a high level committee chaired by the Executive Chairperson of the State Legal Services Authority every six months, section 16.