In its April 17 order, a bench of Justice Achal Sachdev rejected the accused counsel’s argument that a four-year delay in conducting a preliminary assessment of his age had affected his right to a fair trial, as he had become an adult by then. The court cited a Supreme Court judgment to say that the three-month period for such an assessment under the Juvenile Justice Act is not mandatory and can be extended with reasons.
Citing provisions under the Act, the HC bench observed, “… preliminary assessment is not a trial, but is to assess the capacity of such a child to commit and understand the consequences of the alleged offence.”
Referring to the delay, the bench observed: “The delay is legally excused. Courts have consistently held that delay caused by judicial proceedings, particularly High Court or Supreme Court orders, cannot be attributed to either party as culpable delay. The period during which a stay or pendency operates is effectively excluded from consideration. The child turning 18 or even older during pendency does not bar the assessment.”
The case
The accused was booked on January 23, 2018, for sexually assaulting a minor girl in Budaun district. Police filed a chargesheet on March 10 the same year under IPC Section 376 (punishment for rape) and sections 3/4 of the POCSO Act. The Additional Sessions Judge/POCSO Court, Budaun, took cognisance of the chargesheet on April 25.
Submitting his school leaving certificate, the accused claimed his date of birth was February 3, 2000, and his age on the date of alleged crime as 17 years 11 months and 19 days — hence, he was to be treated as a minor.
His father also moved an application in the trial court to treat his son as a juvenile, which was rejected. He challenged the decision in the High Court; the trial court verdict was set aside on September 14, 2021, with a direction to reconsider the plea. On November 25 the same year, the trial court declared him a juvenile.
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A mental assessment of the accused was conducted and the Juvenile Justice Board directed that he be tried as a juvenile on December 12, 2022.
The victim then filed an appeal against this decision in the Special Judge (POCSO Court), Budaun. The court set aside the decision of the board on October 13, 2023, and held that the accused should be treated as a major during trial.
Arguments in court
Countering the argument by the accused’s counsel, the counsel for the victim said the delay in preliminary assessment had been caused by acts of the accused.
He submitted that petitions were filed in the Juvenile Justice Board and later in the High Court to try the accused as a.juvenile. The HC’s decision into the matter came in September, 2021, the counsel stated in his submission.
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The court upheld the submission of the victim’s counsel, which stated, “… “In essence, a four-year delay due to High Court pendency does not automatically invalidate the preliminary assessment, but significantly strengthens a juvenile’s argument that any psychological evaluation now conducted is unreliable and that the assessment order, if it goes against him, deserves heightened judicial scrutiny.”
Citing the counsel’s analysis, the bench of Justice Sachdev stated that the 2023 order by the Special Judge, POCSO Court, Budaun to conduct the trial against the accused treating him as an adult was passed keeping in sight the procedural as well as societal impact of crime, and does not suffer from any infirmity, and is liable to be upheld.
