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Introduction

A child is a person who is going to carry on what you have started…. He will assume control of your cities, States, and
nations. He is going to move in and take over your churches, schools, universities, and corporations … the fate of
humanity is in his hands.
-Abraham Lincoln
The society has undergone tremendous change in terms of its ideologies[1], perspectives and its moral and ethical
standard. What was considered immoral a decade ago is no more seen in the same light. The aspiration for good life, better
opportunities and comfort has indeed opened new doors for development. Yet the same aspirations have led us into a fast
moving way of life with less time for ourselves and personal introspection. These changes in the society and individual
have impacted children as well. They are now exposed to this fast growing race, competitiveness and stress for better
performance in every field, which has brought a lot of complexities. Is the individual’s neglect and the society’s apathy
towards the children the root cause of their deviance?
Presently, around 42% of India’s population is below 18 years.[2] The recent times have witnessed some of the most
brutal and heinous crimes being committed by the children. Some of the infamous crimes are as follow:
1. The Nirbhaya case.—On 16-12-2012, the capital witnessed the most heinous crime whereby a physiotherapy
student was brutally gang raped in a moving bus in which she was travelling with a male friend. One of the co-
accused was under-age. This was one of the prominent cases that brought out the flaw with the then juvenile
system.
2. Shakti Mills Gang Rape.—Another heinous case which saw the involvement of minors who was 17 years old at
the time of committing the sex offence. In July/August 2013, out of seven persons arrested in two separate gang
rape cases committed upon a photojournalist and a telephone operator, in Shakti Mills Compound (Mumbai), two
were minors.
3. Hatigaon Rape case.—In September 2013, a group of five boys (juvenile) in the age category of 12 years to 16
years; raped a 12-year-old minor girl, by dragging her to an abandoned place and raping her through the night.
These boys were neighbours with the victim minor girl.
4. Mayur Vihar Murder case.—In November 2013, a gang of five minors allegedly murdered a jeweller’s wife in
Delhi’s Mayur Vihar and fled with gold and cash.
5. Minor “Rape and Murder” case.—In April 2015, Chandigarh Police arrested a juvenile for the kidnapping and
murder of a minor girl.
6. Mercedes Hit and Run case.—In July 2016, it was the first case after the enactment of the new JJ Act, 2015
whereby the accused was tried as adults. The accused — 17 year and 11 months ran over a 32-year-old marketing
executive while driving his father’s Mercedes.
7. Jhabua Murder case.—On 1-3-2017, the first case after the amended JJ Act came into effect, two minors — aged
17 and 16 years were awarded life imprisonment. The two accused stabbed the deceased (teenager) over a matter
of 800 rupees.
NCRB Report
The annual figures released by National Crime Records Bureau (NCRB) has revealed the following ground realities:
1. In the year 2012, police in India charged 27,936 juveniles for alleged involvement in serious crimes including
banditry, murder, and rape and rioting. According to NCRB data, among those who faced JJB (Juvenile Justice
Boards) in 2012, two-thirds (66.6%) were between the age group of 16 and 18 years. The NCRB figures showed
that 30.9% were aged between 12 and 16 years old and the remainder, (2.5 %) were aged between 7 and 12
years.[3]
2. According to the NCRB data from 2002 to 2012, there has been an increase of 143% in the number of rapes by
juveniles. It also revealed that the figures of murder have gone up by 87% while at the same time there has been
an alarming increase of 500% in the number of kidnappings of women and girls by minors.
3. However, it is equally pertinent to note that (between 2007-2012) the number of heinous crimes such as rape and
murder account for only 8% of the total crime committed by minors. 72% of the crimes committed by minors are
petty crimes like theft, burglary and causing hurt. Though there is not a rise in the heinous crimes committed by
juveniles as such, there has been an increase in the gravity of the heinous crimes committed by them.
And hence the debate is — whether the legislators should go by the gravity of these heinous crimes or by the percentage of
the minor population (which is very less) that may commit such offence?
Was the Juvenile Justice (Care and Protection of Children) Act, 2000 far too liberal?
The Juvenile Justice (Care and Protection of Children) Act, 2000 (in short “JJ Act, 2000”) has been criticised on a number
of occasions. While hearing a case in 2014, with respect to JJ Act, 2000, it was opined, by the Bench of Justice Dipak
Misra and U.U. Lalit that the need for the law is to “satisfy the desire of society”, and the punishment to befit the gravity
of the crime. The Bench also referred the JJ Act, 2000 as “far too liberal” and asked the Government to revisit the law.
In Gaurav Kumar v. State of Haryana[4], the Supreme Court had been of the opinion that the Juvenile Justice Act of 2000
needs a reappraisal as it has failed to deter the juveniles of the country from committing petty[5] as well as heinous crimes.
Prominent reasons for deviance by minors
According to child right activist, Yamini Abde, the urge to do something different, daring, extraordinary filled with thrill
is one of the driving forces behind the minors getting involved in heinous crimes like rape and murder. Peer pressure,
desire for easy money, access to internet videos on crimes and pornographic material. Increase in aggression and sexual
activity in youngsters and the knowledge of the fact that they will not be punished under the criminal system for them
being juveniles. This absence of fear with regards to punishment has led to an increase in the crime rate among juveniles.
Does the Juvenile Justice (Care and Protection of Children) Act, 2015 violate the fundamental rights of the
children?
The Juvenile Justice (Care and Protection of Children) Act, 2015 (in short “JJ Act, 2015”) has been criticised for
incorporating Section 15[6] and Section 18(3)[7]. It lays down that if the minor has completed or is above sixteen years
and is involved in a heinous crime then on the report of preliminary assessment by the Juvenile Board, the case can be
trialed in the Children’s Court and the minors will be treated as adults and would be subjected to the criminal procedure.
This differential treatment of the minors between the age group of 16-18 years sparked the criticism. It was contested that
this provision led to the violation of Article 14 i.e. right to equality.
In order to ensure the protection of Article 14, that is, right to equality, among children in conflict with the law who belong
to different age group, the Act provides for intelligible differentia. So that children who have committed petty offences and
those children who have committed heinous offences are not treated alike and the special needs of each class for
reformation and rehabilitation is taken into account.
In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely:
(i) that the classification must be found on an intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group; and
(ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question.
What is necessary is that there must be a nexus between the basis of classification and the object of the Act under
consideration.[8]
Basis of classification
Children under the age group of 18 years may have different mental capabilities since the development of brain takes place
at different stages in different individuals, the severity of the crime committed may also differ thus indicating different
levels of maturity. As according to American Psychology Association the human brain is not fully mature and the brain is
still in the process of developing, therefore, the juveniles cannot be held fully responsible for their behaviour[9]. Hence
children involved in petty crimes such as house breaking, pickpocketing should not be kept with those involved in heinous
crimes like rape, murder, etc. as that would be prejudicial to the victim in the former case who suffer more.
In Roper v. Simmons[10], the Supreme Court opined that all juveniles should not be grouped into a single class instead;
juveniles should be given individual consideration and evaluated on the basis of their particular maturity level,
intelligence, life experience and feelings of moral responsibility, background history. Thus giving due consideration to the
idea of differential treatment of juveniles.
Object sought to be achieved
Data has also revealed that a lot of sexual exploitation takes place at such observation homes by some elder inmates on the
junior juveniles.[11] And one possible way to put a check on it can be the segregation on the basis of maturity depending
upon the mental capability, the heinousness of the crime committed and the background history of the juvenile.
The JJ Act, 2015 protects the fundamental right to life of the victim. The right to life also includes right to justice. The
previous Act by providing blanket immunity to the juvenile offenders and subjecting them to the same punishment
irrespective of the severity of the crime committed by them denied the victim the right to justice.
A lot of atrocities committed upon women, in the recent past, such as sexual harassment, rape, acid attack, brutal murders
have the involvement of juveniles in it. To curb this menace the JJ Act, 2015 states under Section 18(3) that if after 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 and[12], if the juvenile is
found to have committed a heinous crime and is above the age of 16 years then the Juvenile Board may transfer the case to
a Children’s Court where they may send him to a place of safety and after the attainment of 21 years and thereafter he
shall be transferred to a jail.[13] Thus protecting the fundamental rights to live with dignity guaranteed under the
Constitution of India.
In Bodhisattwa Gautam v. Subhra Chakraborty[14], offence of rape was held to be a violation of the right to life
guaranteed under Article 21 of the Constitution of India. Fundamental rights are superior to any other right guaranteed by
any statue. Thus making the blanket immunity to the juveniles as being ultra vires the Constitution. In Ram Prasad
Sahu v. State of Bihar[15], the Supreme Court held that a child offender can be convicted of committing rape[16] and an
attempt to commit rape. Where a child is not eligible to be punished but is capable of committing rape or murder it is
against the principle of justice and principle of proportionality of punishment if he is given blanket immunity. It is a well-
established medical psychological fact that the level of understanding of a 16-year-old was on a par with that of adults.[17]
The JJ Act, 2015 under Section 47(4) states that: “Every child alleged to be in conflict with law who is not placed under
the charge of parent or guardian and is sent to an observation home shall be segregated according to the child’s age and
gender, after giving due consideration to physical and mental status of the child and degree of the offence committed.’’
Thus the JJ Act, 2015 indeed protects the fundamental rights.
Are International treaties enforceable in Indian court of law?
The JJ Act, 2015 led to a huge uproar from human right activists challenging the Act on the basis of the violation of
international treaties to which India is a signatory. India has signed and ratified United Nations Child Right Convention,
Beijing Rules and Havana Rules which are for the protection of the rights of the children.
The constituent-makers provided the legislators with Article 51(c) which states that “The State shall endeavour to foster
respect for international law and treaty obligations in the dealings of organised people with one another.’’ This article of
Part IV of the Constitution related to DPSP[18] is a non-enforceable part of the Constitution and since the Constituent
Assembly Debates are silent on this point it must be inferred that the Framers intended that the will of the legislators with
respect to the international treaty obligation would be supreme and only when these treaties have been incorporated into
the domestic law through an Act of Parliament the same can be enforced in the court of law.
Treaty obligation only turns to be enforceable in the Indian court of law when they have been adopted into the domestic
law by a certain Act of Parliament and the same are not in conflict with the national laws as held by the Supreme Court
in Vishaka v. State of Rajasthan[19] and Kesavananda Bharati v. State of Kerala[20]. If an enabling Act is not enacted by
Parliament the rights conferred by a treaty cannot be enforced in an Indian court. Thus making the provisions of the
international treaties non-applicable. Article 246 clearly states that Parliament has exclusive power to make laws with
respect to any of the matters enumerated in List I in the Seventh Schedule, further Entry 14 states that entering into treaties
and agreements with foreign countries and implementing of treaties, agreement, and conventions with foreign countries is
a centre matter.
Is JJ Act, 2015 opposed to India’s International commitments?
The international treaties such as UNCRC, Beijing Rules and Havana Rules signed and ratified by India, states under Rule
17.2 of Beijing Rule and Article 37(3) of Convention on the Rights of the Child[21] that children under 18 years cannot be
awarded death penalty and life imprisonment, the new JJ Act, 2015 provides the same under clause (21) of Section 2 of the
Act. Thus the international treaties and conventions and the national law don’t prohibit lesser severe punishment than the
death penalty and life imprisonment.
Further General Comment No. 10 on CRC under Point 71 states that the reaction to an offence should always be in
proportion not only to the circumstances and the gravity of the offence but also to the age, lesser culpability, circumstances
and needs of the child, as well as to the various and particularly long-term needs of the society.
Taking into consideration the socio-cultural economic situation and the background of the juvenile, the punishment that
best serves his interest and also serves the interest of the society should be awarded. The punishment should aim at the
rehabilitation of the juvenile into the society. The new JJ Act, 2015 provides for reformative services including
educational services, skill development, alternative therapy such as counselling, behaviour modification therapy and
psychiatric support shall be provided to the child during the period of his stay in the place of safety.[22]
It is worth mentioning that Article 51-A of the Indian Constitution makes a distinction between international law and
treaty obligations. If it is understood that the international law is being referred to as customary international law which
further stands for law that is accepted as a standard law practice adopted by the nations across the globe than the JJ Act,
2015 is in coherence with the international practice with regards to punishment for heinous crime committed by juvenile
across the globe. If the international customary law is taken into consideration then the position in USA[23], UK[24], and
Canada[25] concludes that the minor can be prosecuted under the criminal law for grave and heinous crimes committed by
them.
Though mens rea i.e. a guilty mind is still difficult to be proved. As according to various researchers the human brain
keeps developing until the age of 18 years.[26] But the core of understanding the graveness lies in the fact that research
also shows that by the age of 5 years human brain cultivates 85% of their personality, skill and intellectual
capability[27] is developed, the brain recognises anti-social behaviour and has developed cognitive faculty. Thus making
the JJ Act, 2015 completely justified. Hence neither the international law nor international conventions prohibit India from
treating minors as adults under certain situations.
Conclusion
Punishment is compelled to justify itself by its actual effect, on society, in maintaining order without legalising brutality,
on the criminal, in deterring him or in aiding his reform.[28] The moral justification for punishment lies in its effects — in
its contribution to the prevention of crimes and the social readjustment of the criminal. It is based on a forward looking
theory. It considers the future good we do to the society in connection with the juvenile. Thus the validity of the said Act
need not be questioned based upon the presumption that it violated the fundamental rights and is opposed to India’s
international commitment.
The law defines the offences which it punishes in such a way as to make the state of mind or will of the offender aware of
the fact that such a course of action would lead to such an infringement of law and a punishment will follow.
Same offence should attract same punishment and hence a child above the age of 16 years does have sufficient maturity to
understand the nature of the act committed to forming mens rea and should not be taken to be too innocent.
* IIIrd year, NUSRL, Ranchi (95aasthamishra@gmail.com)
[1] From late 1990’s, after the liberalisation and privatisation of the Indian economy the ideological shift from
communism to capitalism took place. This brought with it the idea of individual growth, wealth accumulation and a
competitive market. The concept of nuclear families and individual liberty.
[2] <http://censusindia.gov.in/Census_And_You/age_structure_and_marital_status.aspx> last seen 12-2-2017.
[3] Juvenile Justice in India by Saurabh Chaturvedi and Krishna Pokharel,
<http://blogs.wsj.com/indiarealtime/2013/08/31/juvenile-justice-in-india/> last visited on 4-2-2017.
[4] (2015) 16 SCC 310.
[5] S. 2 cl (45) JJ Act, 2015, (45) “petty offences” includes the offences for which the maximum punishment under the
Penal Code or any other law for the time being in force is imprisonment up to three years.
[6] S. 15(1) JJ Act, 2015, (1) In 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, ability to understand the consequences of the offence and the circumustances in
which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-s. (3) of S. 18.
[7] S. 18(3) of JJ Act, 2015, (3) Where the Board after preliminary assessment under S. 15 pass an order that there is a
need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court
having jurisdiction to try such offences.
[8] D.S. Nakara v. Union of India, (1983) 1 SCC 305, para 11.
[9] Are Adolescents Less Mature Than Adults? Minors, Access to Abortion, Juvenile Death Penalty and the Alleged
APA. “Flip-Flop”, American Psychology Association, <http://www.apa.org/pubs/journals/releases/amp-64-7-583.pdf>.
[10] 2005 SCC OnLine US SC 12 : 161 L Ed 2d 1 : 543 US 551 (2005).
[11] Juvenile Homes are hellholes, say Aarti Dhar, The Hindu, <http://www.thehindu.com/news/national/juvenile-homes-
are-hellholes-says-report-on-child-rape/article4637540.ece> last visited 4-2-2017 See also <file:///C:/Users/pc/Desktop/
IndiasHellHoles2013.pdf>.
[12] S. 15(1) JJ Act, 2015.
[13] S. 19(3) JJ Act, 2015.
[14] (1996) 1 SCC 490; Rly. Board v. Chandrima Das, (2000) 2 SCC 465.
[15] (1980) 1 SCC 74 : AIR 1980 SC 83.
[16] S. 376(d) IPC defines punishment for rape which shall be rigorous imprisonment of either description of a term
which shall not be less than seven years but which may extend to imprisonment for life.
[17] Salil Bali v. Union of India, (2013) 7 SCC 705.
[18] Directive Principles of State Policy.
[19] (1997) 6 SCC 241, paras 7 and 10.
[20] (1973) 4 SCC 225.
[21] Hereinreferred as “CRC”.
[22] S. 19(3) JJ Act, 2015.
[23] Age at which a juvenile can be tried as an adult: The age is 13 years as per the federal law; however, this may vary
across different States, <http://uscode.house.gov/view.xhtml?path=/prelim@title18/part4/chapter403&edition=prelim>
last visited on 3-3-2017.
[24] Persons under age 18 are tried by a “Youth Court” which is a special type of Magistrate’s Court for those aged 10-18
years. However, for serious crimes like murder or rape, the case starts in Youth Court but is transferred to a Crown Court
which is the same as a Sessions Court. The Crown Court can sentence the child for offences of murder committed when
the offender was a youth as well as for “grave crimes” including sexual assault and sentence the child to “indeterminate
detention for public protection”, <http://www.legislation.gov.uk/ukpga/Geo5/23-24/12>.
[25] Age at which a juvenile can be tried as an adult: The age is 14 years, <http://laws-lois.justice.gc.ca/PDF/Y-1.5.pdf>.
[26] <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2892678>, last visited on 5-2-2017.
[27] See: David Edie and Deborah Schmid, Brain Development and Early Learning: Research on Brain Development,
Wisconsin Council on Children and Families, Winter 2007, Vol. 1,
<https://larrycuban.files.wordpress.com/2013/04/brain_dev_and_early_learning.pdf>, last visited on 7-3-2017.
[28] H.L.A. Hart, Morals of Evolution (3rd Edn., 1915), p. 130.
New Delhi: In a meeting held here Monday, members of the Prochild Network comprising a
broad network of NGOs, academics, activists and lawyers, voiced strong opposition to the Bill
amending the Juvenile Justice Act, 2000, that was passed in the Lok Sabha on May 7, terming
the provisions of the Juvenile Justice (JJ) Amendment Bill as patently unconstitutional. The
most crucial provision of the Bill, which will likely be debated in the Rajya Sabha today,
allows for children between the age of 16-18 to be tried as adults if they commit a heinous
crime, thereby advocating greater stringency of action as a deterrent. The category of heinous
offences includes offences for which the minimum punishment in law is seven years or more.

Challenging the very basis of the Bill’s provisions as untenable, Prof Ved Kumari argued that
treating children between 16-18 as adults violated the fundamental right to equality under
Article 14 of the Constitution as well as Article 15(3) which allows special laws for
marginalised sections of society, including children.

What this means is that if a 16-year old commits an offence that attracts a minimum seven year
sentence, he will be produced before the Juvenile Justice Board comprising a magistrate and
two social workers who will decide on the physical and mental capacity of the child to commit
the offence as well as his ability to understand the consequence of the offence and the
circumstances in which he committed the offence. This is a very subjective process which
creates scope for an enormous amount of arbitrariness. Moreover, Kumari argues that “latest
research shows that individualised assessments of adolescent mental capacity is not possible.”
Hence, the preliminary assessment by the Juvenile Justice Board providing for procedural
arbitrariness violates Articles 14 and 21 because an accurate assessment of mental capacity for
the purpose is just not possible and will result in subjective and arbitrary transfers into the
adult criminal system. This goes against the very basis of the Constitution, she said.

Further, she questioned the government’s commitment towards the implementation of juvenile
justice, pointing to the fact that the Union government’s budgetary allocation for child welfare
dropped from “an already inadequate 4.52 percent in 2014-15 to a measly share of just over 3
percent in 2015-16.”

Representatives of Prochild pointed out that these finances are in no way adequate to create
places of safety for juveniles as envisaged in the Bill. Consequently, juveniles would either be
detained in the existing Special Homes or Borstals or jails. This would only ensure that a child
offender turns into a hardened criminal by spending seven to 20 years in the company of
hardened criminals while growing to adulthood. Prof. Faizan Mustafa, Vice-Chancellor,
NALSAR University of Law, Hyderabad, emphasised that “putting children with adult
criminals is self-destructive and self-defeating. Adolescents in conflict with law need adult
guidance not the company of hardened criminals.”
Further, it was argued that in the absence of adequate funding, the proposed reformative
services, including the services of psychologists, psychiatrists and social workers during the
stage of preliminary assessment and rehabilitation inquiry would remain confined on paper.

The government’s contention that one of the main triggers for the Bill was the aspect of safety
of women (as seen against the backdrop of the ‘Nirbhaya’ rape case), was challenged by
Supreme Court lawyer and women’s rights activist Vrinda Grover. The government’s attempt
to push through amendments to the Juvenile Justice law that seek to prosecute and try 16-18
year old juveniles for rape or other sexual crimes before the adult criminal justice system and
incarcerate them in prisons, will not in any way enhance the safety of women, she asserted. It
was more important for the government to invest in strengthening the reformative and
rehabilitative mechanisms under the JJ law, she said.

Bombay High Court


Mohamed Huzaifa Javed Ahmed ... vs The State Of Maharashtra on 15 July, 2019
Bench: D. S. Naidu

1/44 juvenile
justice board.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY


CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1153 of 2018

Mumtaz Ahmed Nasir Khan


R/o.117/125, Room No.10,
Sharbatwala Building,
Maulana Azad Road, Dunkan Road,
Mumbai - 8. ...
Appellant/
Original
Complainant.
v/s.

The State of Maharashtra


(Through J.J. Marg Police Station)

2. Shoeb Mohamed Akram Shaikh


Through his father
Mohd. Akram Shaikh
R/o: Room No.1603, Zain Tower,
Temkar Street, Mumbai ...
Respondents/

Original CCL-2
WITH
CRIMINAL WRIT PETITION NO.1346 OF 2018
WITH
CRIMINAL APPLICATION NO.262 OF 2018
IN
WRIT PETITION NO.1346 OF 2018

Mohamed Huzaifa Javed Ahemd Ansari


Through his Guardian
Javed Ahmed Ismail Ansari
R/at: 125/14, Kalvert Building,
M.A.Road (Duncan Road),
Mumbai - 400 008

::: Uploaded on - 17/07/2019 ::: Downloaded on -


17/07/2019 21:59:40 :::
2/44
juvenile justice board.doc

At present lodged at Children Home,


Dongri Mumbai. ...
Petitioner
(Ori.
Accused/CCL-1)
v/s.

The State of Maharashtra


(at the instance of
Senior Inspector of Police,
J.J.Marg Police Station
vide C.R. No.228 of 2016)
...Respondents

Ms. Gayatri Gokhale a/w.Ms. Samruddhi Salvi i/b. Rizwan


Merchant &
associates for the appellant.

Mr. Mubin Sollkar a/w. Mrs. Tahera Qureshi i/b Yakub Shaikh for
respondent no.2.
Mr. Nitin Sejpal a/w. Akshata Desai for petitioner in wp
1346/18.
Mr. A.S. Patil, APP for the State.

CORAM : DAMA SESHADRI NAIDU, J.

JUDGMENT RESERVED ON : 20th June


2019
JUDGMENT PRONOUNCED ON : 15th July
2019

JUDGMENT

Introduction:

A boy, on the verge of attaining adulthood--to be precise, seventeen and half years old--faces an allegation he has
inhumanly killed a three-and-half-year-old child. Motive uncertain, the offence remains heinous.

2. Another boy, only a little younger--sixteen and half years--


3/44 juvenile justice board.doc faces the allegation of, first, conspiring with the older boy in the offence and, second,
helping him, later, to "make the evidence disappear," besides screening that older boy from police detection, too.
Procedural History:

3. The Juvenile Justice Board ("the Board") assesses the older juvenile's physical health, mental maturity, and other
collateral factors, and decides to try him, under Section 15 of the Juvenile Justice Act, 2015, as if he were an adult.
After applying the same standards, it, however, decides to try the younger one as a juvenile. The Board's decision
engendered before the Sessions Court two appeals: One by the Government against the Board's decision to try the
younger boy as a juvenile; the other by the older boy against its decision to try him as an adult.

4. The Sessions Court, on the merits, through its Orders, dated 21st February 2018, dismissed both the appeals. Now
against the two appellate orders, the victim's father, instead of the Government, filed Appeal No.1153 of 2018. The
older juvenile, too, has filed Writ Petition No.1346 of 2018, in which the victim's father joined as an intervener.

Facts:

5. On 5th December 2016, the complainant received a phone call from his wife that their daughter, three-and-half-
year old, went missing. He rushed home, searched for his daughter, and then lodged a 4/44 juvenile justice
board.doc complaint with the jurisdictional police. The next day, the police registered a crime under Section 363 of
IPC. Until 18th December the case saw no progress. The next day, an anonymous person called the complainant
over the phone and demanded a ransom of one crore rupees. The calls continued the next three days. When the
police tracked the calls, they led to the older juvenile; they took him into custody. On the information provided by
him, the police recovered the baby's dead body.

6. The older juvenile, on interrogation, has allegedly revealed that, first, he applied chloroform to the baby and, later,
strangulated her by the cord of a mobile charger. He is said to have disposed of the dead body helped by the younger
juvenile. In the investigation, the police have also learned how the older juvenile used to boast of his criminal ability
or acumen, and how he enticed into his house the baby playing in their residential complex. They have also gathered
evidence about the role the younger juvenile played not only in disposing of the body but also in trying to conceal
the older juvenile's identity from the police: the use of different phones, sim cards, and, as a whole, the technological
adventures. So the police added to the crime Sections 302, 385, 201, and 34 of IPC.

7. As both the accused are juveniles, the Board took up their case for determining whether they should be tried as
juveniles or adults, under Section 15 of the Act. It has held that the older one should be 5/44 juvenile justice
board.doc tried as an adult and the younger one as a juvenile. The appeals rejected, the complainant and the older
juvenile have filed Appeal No.5160 of 2018 and WP No.1346 of 2018 respectively. The nomenclature of the
proceedings does not seem to jibe with the statutory mandate, for what lies is only a revision under Section 102 of
the Juvenile Justice Act. Yet one is an appeal and the other a criminal writ petition.

Submissions:

Victim's Father (Appellant in Appeal No.1153 of 2018 and Intervener in WP No.1346 of 2018):

8. Ms. Gayatri Gokhale, instructed by Rizwan Merchants & Associates, the appellant's counsel, has strenuously
contended that the murder is gruesome, and both the juveniles played equal role in that one. According to her, it is a
misnomer to call these two accused juveniles, because of both the depravity of the crime and their near adulthood--
just a few months short of 18 years.

9. Ms. Gokhale has taken pains to take me through the record, especially a few portions of the chargesheet as well as
the orders of both the Juvenile Justice Board and the Sessions Court. First, she contends there is voluminous
evidence on record that the younger juvenile has harboured common interest since inception and conspired with the
older one. To drive home her point, she has read out the statements of a couple of witnesses. Second, according to
her, after the murder, the 6/44 juvenile justice board.doc younger juvenile has continued to act in concert with the
older one and did all he could to give different colour to the crime, to make the evidence disappear, and to screen the
older juvenile from the needle of suspicion.

10. To conclude, Ms. Gokhale has submitted that to attract Section 34 IPC, it is unnecessary that the co-accused
should have committed any overt act. Thus, the younger juvenile's participation in the crime, she stresses, amounts
to his committing the heinous crime by himself, as defined under section 2(33) of the Juvenile Justice Act. And in
that background, he must be tried as an adult, Ms. Gokhale concludes.

11. Besides highlighting Section 15 of the Act, Ms. Gokhale draws my attention to Section 19 of the Act and
stresses that the Magistrate trying the offence has ample powers to declare a juvenile an adult, even disregarding the
Board's opinion.

12. About the older juvenile, Ms. Gokhale, for the intervening second respondent, has highlighted, what she calls,
the callous attitude the older juvenile has displayed throughout. She has referred to the social status and seemingly
normal childhood of the older juvenile. According to her, with no poverty and no familial deprivation, the older
juvenile had no justification for committing such monstrous crime.

13. Ms. Gokhale stresses that the Court ought to be guided by 7/44 juvenile justice board.doc the prima facie
allegations, at this stage. And that is what, she points out, the Board and the Session Court have done; they have
been, in fact, solely guided by what has been brought on record until now.

14. Eventually, Ms. Gokhale has taken me to a few parts of the chargsheet to highlight how both the juveniles used
the technology and how their street-smart attitude helped them not only to commit the crime but also to hide it, for a
while though. According to her, their conduct even post-murder deserves no sympathy. Thus, she urges this Court
not to interfere with concurrent findings of the Board and the Sessions Court.

Younger Juvenile (Respondent in Appeal No.1153 of 2018):

15. On the contrary, Shri Mobin Solkar, the younger juvenile's counsel, has submitted that even prima facie the
younger juvenile's role commenced only after the older one committed the alleged murder. In this context, he
contends that none of the Sections 302, 385, 201, 363, r/w 34 of the IPC applies to the alleged role the younger
juvenile has played. So, the contention that the younger juvenile has harboured a common intention and conspired to
kill the child attracting Section 34 of Indian Penal Code (IPC), Shri Solkar stresses, falls to the ground.

16. Only as a matter of hypothesis does Shri Solkar want the Court to treat Section 201 of IPC as applying to the
allegations the younger juvenile has faced. Then, he has drawn my attention to section 2(33) to underline the fact
that any offence to be labeled heinous must 8/44 juvenile justice board.doc be punishable with a minimum
punishment of seven years and above. The punishment under section 201 of IPC, according to him, even for a
capital offence, is a minimum of three years, extendable up to seven years. With that statutory prop, he asserts that
any offence under Section 201 cannot be termed 'heinous'.

17. On his part too, Shri Solkar has taken me through the statements of various witnesses to stress that until the
murder was committed, the younger juvenile was nowhere in the picture. In the same vein, he submits that post-
murder, there are, indeed, certain allegations against the younger juvenile. But none amounts to a heinous crime.
Thus, he urges this Court to dismiss the appeal. Older Juvenile (Appellant in WP No.1346 of 2018):

18. Shri Nitin Sejpal, the older juvenile's counsel, has taken me to the definitional dynamics of Section 2 of the Act,
with a particular reference to sub-sections (12), (13), (33), (35), (40) and (54). According to him, there is nothing
much to distinguish between the younger and the older juveniles (technically called CCL-1 and CCL-2
respectively). Yet the JJ Board has given the benefit of the Act only to the younger juvenile.
19. To elaborate, Shri Sejpal submits that both the juveniles are almost of the same age, but for a few months
between them. Their social background, family circumstances, and physical as well as mental capacity shows the
same pattern as revealed by the social investigation.

9/44 juvenile justice board.doc Then, Shri Sejpal has stressed that drastic may be the allegations but even the older
juvenile has always enjoyed the presumption of the innocence, as statutorily secured under Section 3 of the Act.

20. Shri Sejpal has taken me through every observation in investigation report to hammer home his contentions that
the older juvenile is a normal child, brought up in a family with values. In that context, he has submitted that the
father is well educated, the family is respected, and none in that family has been accused of any crime hitherto.

21. Elaborating on the older juvenile's credentials, Shri Sejpal submits that when the alleged incident took place, the
older juvenile was pursuing his eleventh class. Even in judicial custody, he continued his education and cleared the
Board examination, that is Class 12th, as well. The Social opprobrium the family has already suffered apart, the
Court's decision to try the older juvenile as an adult will jeopardize his future, including educational and career
prospects.

22. True, Shri Sejpal has also referred to the alleged police brutality and how they have extracted confessions from
him. I am afraid they fall beyond the scope of this adjudication. Nor has the appeal refers to the alleged police
brutality. Eventually, Shri Sejpal has referred to a judgment of this Court in Saurabh Jalinder Nangre and others v.
State of Maharashtra[ 1] . Based on that decision, he submits 1[] 2019 (1) Crimes 253 (Bom.) 10/44 juvenile justice
board.doc that the prosecution and the Juvenile Justice Court have failed to establish anything heinous against the
older juvenile.

23. Finally, Shri Sejpal submits that mere incorporation of, for instance, Section 302 would not foreclose a juvenile's
option--even right--to be tried only as a juvenile. Thus, summing up his submission, Shri Sejpal urges this Court to
reverse the concurrent findings of the Juvenile Justice Court and the Sessions Court. Consequently, he wants the
older juvenile, too, tried as a juvenile.

Discussion:

24. To preface, let me invoke William Shakespeare. In Winter's Tale, (Act 3, Scene 3), through a shepherd, he
bemoans the terrible teens: I would that there were no age between sixteen and three-and- twenty, or that youth
would sleep out the rest, for there is nothing in the between but getting wenches with child, wronging the ancientry,
stealing, fighting . . .[ 2]

25. Two juveniles--one aged seventeen and half years and the other sixteen and a half years--face the allegation of
killing a child of three and a half years. To face the trial, they must first be assessed whether they are mentally and
physically still juveniles or have the maturity of an adult. For this, we must, to begin with, survey the statutory
scheme.

2[] Paraphrased: I wish that the ages between sixteen and twenty- three didn't exist, or that young men would spend
them asleep. Otherwise there is nothing between those ages but getting . . . acting dishonestly toward their elders,
stealing, fighting . . .

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Statutory Stipulations:
26. Juvenile Justice (Care and Protection of Children) Act, 2015, governs the issue. It is a law that concerns the
"children alleged and found to be in conflict with the law and children in need of care and protection." The
enactment has its constitutional foundations in clause (3) of Article 15, clauses (e) and (f) of Articles 39, Article 45,
and Article 47 of the Constitution of India. Traveling beyond the Municipal Law, we find that "the Government of
India has acceded on the 11th December 1992 to the Convention on the Rights of the Child, adopted by the General
Assembly of United Nations." This Convention prescribes a set of standards to be adhered to by all State parties in
securing the best interest of the child. The 2015 Act models itself after the standards prescribed in the Convention's
Beijing Rules, 1985, the UN Rules for the Protection of Juveniles Deprived of their Liberty, 1990, and the Hague
Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, 1993.

27. This Act applies to all matters affecting the children needing care and protection and children in conflict with the
law. Under Section 2 (12), a "child" means a person who has not completed eighteen years of age. A "child in
conflict with law", under Section 2 (13), means a child who is alleged or found to have committed an offence and
who has not completed eighteen years of age on the date of commission of the offence. And "heinous offences", as
defined under 12/44 juvenile justice board.doc Section 2(33), include "the offences for which the minimum
punishment under the IPC or any other law for the time being in force is imprisonment for seven years or more."

28. Under Section 2 (35) a "juvenile" means a child below the age of eighteen years. Thus a "child" and a "juvenile"
seem synonymous

--both having the threshold of 18 years. Sub-section (4) defines an "observation home." And sub-section (54)
defines "serious offences". As the definition is inclusive, any offences for which the punishment, under the IPC or
any other law in force, is imprisonment between three to seven years.

29. Section 3 enumerates the "general principles to be followed in the administration of the Act." Among those
principles, the principal are these: (a) The presumption of innocence: every child shall be presumed to be innocent of
any mala fide or criminal intent up to the age of eighteen years. (b) Dignity and worth: all humans shall be treated
with equal dignity and rights. (c) Participation: Every child shall have a right to be heard and to participate in all
processes and decisions affecting his or her interest. (d) Best Interest: all decisions about the child shall be in the
best interest of the child and to help the child develop full potential. (e) Non-stigmatic semantics (words):
adversarial or accusatory words are not to be used against a child. (f) No waiver of rights: no waiver of the child's
any right. (g) Diversion: all measures must be taken to avoid judicial proceedings while dealing 13/44 juvenile
justice board.doc with the children in conflict with the law. The judicial recourse, however, must be in the child's
best interest or the society's.

30. Under Section 4 of the Act, the Juvenile Justice Board comprises a Metropolitan Magistrate or a Judicial
Magistrate of First Class with prescribed qualifications such as experience, and two social workers, of whom at least
one must be a woman. This Board will have the powers of a Metropolitan Magistrate or a Judicial Magistrate of
First Class. If a person committed an offence when he was a juvenile but was apprehended after his crossing 18
years, he must be treated, under Section 6, as a child during the process of inquiry. Among the powers, functions,
and responsibilities of the Board is its power to adjudicate and dispose of cases of children in conflict with the law in
accordance with the process of inquiry specified in Section 14.

31. Under Section 14 of the Act, the Board inquires and passes orders under Sections 17 and 18. The inquiry
encompasses all aspects of a child in conflict with the law. Indeed, under subsection (3), the Board preliminarily
assesses heinous offences under section 15, in three months after the child is produced before it. Of course, the time
may be extended for the reasons recorded. The Board would inquire into or try a heinous offence adopting the
procedure of summons cases if the child was below sixteen years when he had committed the offence. For a child
above sixteen years, inquiry must be as per Section 15.

14/44 juvenile justice board.doc

32. Now comes the prominent provision for our purpose: Section 15 of the Act. If a child above 16 years is accused
of committing a heinous offence, the Board must conduct a preliminary assessment about the child's mental and
physical capacity to commit the alleged offence, his ability to understand the consequences of the offence and the
circumstances in which he allegedly committed the offence. Then, the Board will pass an order under Section 18 (3)
of the Act. It pays to quote Section 15:

Section 15 - Preliminary assessment into heinous offences by Board:


(1) In 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, 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 the provisions of subsection (3) of
section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-
social workers or other experts.
Explanation.-- For the purposes of this section, it is clarified that preliminary assessment is not a trial , but is to
assess the capacity of such child to commit and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then
the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal
Procedure, 1973 (2 of 1974): Provided that the order of the Board to dispose of the matter shall be appealable under
sub-section (2) of section 101:
15/44 juvenile justice board.doc Provided further that the assessment under this section shall be completed within
the period specified in section 14.

(italics supplied)

33. As Section 15 permits the Board may, during the preliminary assessment, take the assistance of experienced
psychologists or psycho- social workers or other experts. First, the preliminary assessment is "not a trial." Second, it
is, instead, an inquiry to assess the child's capacity to commit the alleged offence and to understand its
consequences. On inquiry, the Board must satisfy itself in its preliminary assessment about the juvenile's mental and
physical capacity, his ability to understand the consequences of the offence, and so on. Then, if the Board is
"satisfied on preliminary assessment that the matter should be disposed of", it will follow "the procedure, as far as
may be, for trial in summons case under Cr PC." The Board's order is appealable under sub-section (2) of Section
101.

34. Now comes the role of the Children's Court. Once it receives the preliminary assessment from the Board
under section 15, it may decide to try the child as an adult under Cr. P.C. If it decides to the contrary, it tries him as a
juvenile. The Children's Court, too, "may conduct an inquiry as a Board and pass appropriate orders" under Section
18.

The Adjudicatory Bounds:

35. Against the Board's order under Section 15 of the Act, Section 101 (2) provides for an appeal. The appeal must
be before the 16/44 juvenile justice board.doc Court of Sessions. The appellate court, too, takes the assistance of
experienced psychologists and medical specialists, other than those who assisted the Board in its passing the order
under appeal. As subsection (4) mandates, there is no further appeal against the Court of Session's order.

36. Indeed, the High Court, under Section 102, has revisional powers. It is, as I see, a generic revisional power. It
may, at any time, "call for the record of any proceeding in which any Committee or Board or Children's Court, or
Court has passed an order". Once the record is placed before it, the High Court may satisfy itself about "the legality
or propriety" of any order and "pass such order in relation thereto as it thinks fit."

37. Earlier the Supreme Court has considered the High Court's revisional powers under the now-repealed 2002
Act. In Jabar Singh v. Dinesh[ 3], it has held that the revisional court's powers differ from the appellate court's. They
are more restricted. Especially on the findings of a fact, the revisional court does not interfere unless there is
illegality or perversity.

What makes a juvenile an adult, besides the numerical called age?

38. A universally accepted ideal is that children are dependent and deficient in the mental and physical capacities,
and are in need of 3[ ] 2010 3 SCR 353 17/44 juvenile justice board.doc guidance. Perhaps, initially, a multi-visual
medium like TV; later, a globe devouring internet (appropriately, ominously worded as "world wide web"), and
finally--and fatally--the post-truth social media have let the children, especially the adolescents, leapfrog into the
adult world. Mostly it is a crash-landing, with disastrous consequences. So the childhood innocence is the casualty.
These devices may have made a child bypass his or her childhood, sadly. Then, naturally, the theory of reduced
culpability for juveniles relative to adults has taken a statutory dent. The good-old-days icon of a truant child seems
to get replaced by the modern-day mascot of a violent predator.

39. If we take the USA as a case in point because there the data are more easily accessible, we can see a dramatic
upswing in youth crimes beginning in the 1970s. It caused a new shift in the treatment of juvenile offenders. The
public became increasingly alarmed by the reported surge in murders, rapes, and other violent assaults committed by
teenagers. So people began demanding their legislatures to act. Some experts have blamed the increase in juvenile
crime on the rise in drug abuse, especially the influx of crack cocaine, while others blame a lack of parental
guidance due to the decline of the traditional two- parent home. While overall crime increased during the 1980s and
1990s, juvenile crime grew at a disproportionately faster rate. According to one study cited by Richard E. Redding
in Juvenile and Family Court Journal, from 1987 to 1995 the number of juveniles 18/44 juvenile justice board.doc
arrested for violent crimes such as aggravated assault, murder, manslaughter, and rape rose 60%, while adult violent
crime rose only 24% over the same period. But Redding also notes that between 1994 and 1996, there were
significant decreases in juvenile crime, including a 31% decrease in juvenile homicide[ 4].

40. The perception of a juvenile crime wave persists, however, largely because of national media coverage of
extreme cases. So concludes Richard E. Redding.[ 5]

41. As a result, since the mid-1970s, nearly every U.S. state has revised its laws to facilitate the transfer of
adolescents from juvenile to criminal court (these laws are thus called the "transfer laws"). Some states have
lowered the age at which an adolescent is eligible to be transferred by a judge to criminal court; some states have
allowed prosecutors to directly file adolescents' cases in criminal court, before any hearing in the juvenile court; and
some states created laws that automatically exclude certain adolescents (based on their age and charged offense)
from juvenile court. The specifics of states' transfer laws vary considerably, but the result is that more youth below
eighteen are now prosecuted in criminal court rather than juvenile court.[ 6] 4[] As quoted in Trial of Juveniles as
Adults, Kevil Hile, Chelsea House Publishers, Philadelphia, Ed.2003, pp.21 and 22. 5[].Id.

6[] Judging Juveniles, Prosecuting Adolescents in Adult and Juvenile Court, by Aaron Kupchik, New York
University Press, Ed. 2006. P.4 19/44 juvenile justice board.doc

42. On transfer to the regular criminal court, the trial may be according to the mainstream criminal procedure, but
the punishment, however, must be reformative and rehabilitative--rather than retributive. Then what is the difference
between the two trials--the trial before the regular court and that before the children's court?

43. Essentially, the trial in the regular court is offense oriented; in the juvenile court, it is offender oriented. In other
words, in the children's court, societal safety and the child's future are balanced. For an adult offender, prison is the
default option; for a juvenile it is the last resort. Aaron Kupchik calls the method adopted by the regular criminal
courts vis-a-vis juveniles the "sequential model of justice." That is, it adheres to a criminal justice model during the
trial phase of case processing, but moves toward a juvenile justice model during sentencing, though the quantum
varies in both methods. In contrast, the juvenile court follows a justice model throughout.

44. Under the Chapter "Understanding the Scope of the Problem", Aaron Kupchik notes that jurisdictional transfer is
hardly an innovation. Since the creation of the juvenile court, judges have been able to designate as adults and
transfer to criminal court certain serious offenders who require punishments beyond what the juvenile court can
give. The methods, according to him, vary, though. He identifies three methods.

20/44 juvenile justice board.doc

45. The first method is judge-centric. The judge can select for transfer the most serious juvenile court cases,
involving either the most severe offenses or chronic offenders. This method is termed "judicial transfer" or "judicial
waiver". It was once prevalent. The second method is legislative transfer, or statutory exclusion. This is
what Section 15 of the Act advocates. The third is "direct file", or "prosecutorial transfer". This method gives
prosecutors "substantial authority without any oversight or judicial supervision."

46. The learned author then quotes from the book, The Child Savers, in which its author Anthony Platt responds to
how he would ideally like to handle cases of adolescents. He replies:

If I was going to do social engineering, I suppose what I would do is create a system where the courts would deal
with these issues, the [Juvenile] Court and the [Criminal] Court, would be permitted access to impaneled and
certified experts in child psychology, child behavior, mental health, where assessments could be done that would be
state-of-the-

art to evaluate the child's cognitive skills and educational level, where we would have the benefit of a full analysis of
the capacity of the individual in front of us and access to expertise at will. And then we can do what is appropriate
based on a better understanding [of] who is in front of us.[ 7]

47. I reckon Section 15 of the Act precisely does this. It takes into the evaluative process the child's behaviour,
mental health, cognitive skills, and educational level. The criteria met, then it is "adult time for 7[] Anthony Platt's
The Child Savers, as quoted in Judging Juveniles, P.97 21/44 juvenile justice board.doc adult crime." That said, it is
no easy task to apply this adage of adult crime and adult time.

48. In Rethinking Juvenile Justice[ 8], Elizabeth S. Scott & Laurence Steinberg, under the caption "The Psychology
of Adolescence and the Regulation of Crime," observe that adolescents differ from adults--and juvenile offenders
differ from adult criminals

--in ways important to the regulation of youth crime. A vast body of recent research that was not available a
generation ago, according to the authors, offers insights into both adolescence and youth crime. The research
demonstrates convincingly this developmental stage is distinctive in ways that are relevant both to the involvement
of adolescents in crime and to the effective legal responses.

49. According to Elizabeth S. Scott et al, first, available scientific knowledge confirms what parents of adolescents
surely know--that although teenagers are not childlike, they are less competent decision makers than are adults.
Indeed, adolescents' capacities for reasoning and understanding (what might be called "pure" cognitive abilities)
approach adult levels by about age sixteen. But the evidence suggests they may be less capable than are adults of
using these capacities in making real-world choices. More important perhaps is that the juvenile's emotional and
psychosocial development lags behind their cognitive maturation.

8[] Harvard University Press, Ed. 2008, Pp.4-6 22/44 juvenile justice board.doc

50. For example, teenagers are, according to Elizabeth S. Scott et al, considerably more susceptible to peer influence
than are adults; they are more likely to focus on immediate rather than long-term consequences; they are more
impulsive and subject to mood fluctuations. They are, in fact, more likely to take risks and probably less skilled in
balancing risks and rewards. Finally, personal identity, the authors opine, is fluid and unformed in adolescence. This
is a period when individuals separate from their parents, experiment (often in risky endeavors), and struggle to
figure out who they are.
51. Then, Elizabeth S. Scott et al note that these developmental factors, in combination, undermine adolescent
decision making and contribute to immature judgment--as this term is used in common parlance. Moreover, recent
research has elucidated the biological underpinnings of many of these psychological attributes. Studies of brain
development show that during adolescence, significant maturation occurs in brain systems and regions involved in
long-term planning, impulse control, regulation of emotion, and evaluation of risk and reward. Thus, the immature
judgment of teenagers to some extent may be a function of hard wiring.[ 9]

52. Of course, there are people who scoff at this pro-juvenile slant. For them juvenile offenders are "criminals who
happen to be young, not children who happen to be criminal."[ 10] Finally, Elizabeth 9[] Id., p.--------

10[] Id., p.82

23/44
juvenile justice board.doc

S. Scott et al caution that "the categorical waiver of youths on the basis of age and the seriousness of the presenting
criminal charges alone is undesirable" on social welfare grounds because almost surely it will lead to adult
prosecution and punishment not only of life-course persistent offenders but "also of many normative adolescents
who would likely mature out of their inclinations to get involved in criminal conduct." Then, "to avoid sweeping
many youths who are not incipient criminals into the adult system," they conclude, "transfer should be precluded for
any juvenile with no previous record of serious violent offending"[ 11]. In the UK:

53. Under the English Legal System, young offenders are usually tried in youth courts (formerly called juvenile
courts), which are a branch of the magistrates' court. Other than those involved in the proceedings, the parents and
the press, nobody may be present unless authorised by the court. Parents or guardians of children under 16 must
attend court at all stages of the proceedings, and the court has the power to order parents of older children to attend.

54. Young persons can, in limited circumstances, be tried in a Crown Court: for example, if the offence charged is
murder, manslaughter, or causing death by dangerous driving. They may sometimes be tried in an adult magistrates'
court or the Crown Court if a co-defendant in the case is an adult. Following a Practice Direction, 11[] Id.,
p.243 24/44 juvenile justice board.doc discussed below, a separate trial should be ordered unless it is in the interests
of justice to do otherwise. If a joint trial is ordered, the ordinary procedures apply 'subject to such modifications (if
any) as the court might see fit to order'.

55. The trial procedures for young offenders have been reformed in the light of a ruling of the European Court of
Human Rights in T v UK and V v UK (2000). The EC Court has found that Jon Venables and Robert Thompson,
who were convicted by a Crown Court of murdering the two-year-old James Bulger in 1993, did not have a fair trial
under Art. 6 of the European Convention on Human Rights.

56. Following that decision in Thompson and Venables, a Practice Direction was issued by the Lord Chief Justice
laying down guidance on how young offenders should be tried when their case is to be heard in the Crown Court.
The language used by the Practice Direction follows closely that employed in the European decision. It does not lay
down fixed rules but states that the individual trial judge must decide what special measures are required by the
particular case, considering 'the age, maturity, and development (intellectual and emotional) of the young defendant
on trial'.

57. The trial process should not expose that defendant to avoidable intimidation, humiliation or distress. All possible
steps should be taken to assist the defendant to understand and participate in the proceedings. It recommends that
young defendants be brought into 25/44 juvenile justice board.doc the court out of hours, so they become
accustomed to its layout. Jon Venables and Robert Thompson had both benefited from these familiarisation visits.
The police should try to avoid exposing the defendant to intimidation, vilification or abuse. As regards the trial, it is
recommended that wigs and gowns should not be worn and public access should be limited. The courtroom should
be adapted so that, ordinarily, everyone sits on the same level[ 12]. Europe:

58. In Western continental Europe, the upper limit of penal liability within the juvenile justice system is 18 years. In
some countries this upper-age limit is absolute: strict model. It means minors can never be brought before an adult
court. In others, this limit is flexible, so minors can get adult sentences and (in some countries) even be sentenced by
an adult criminal court. It is a flexible model.

59. Germany is a striking example of the strict model. In that country, juveniles only come under the youth justice
system from the age of 14. The German Jugendgerichtsgesetz (JGG) distinguishes educational measures,
disciplinary measures, and punishments. Austria, too, operates, under the strict model. So is Switzerland.

60. The second model in operation in Europe is one in which a flexible upper limit is coupled with relatively low
maximum penalties in the juvenile justice system.

12[] English Legal System, Catherine Elliott and Frances Quinn, 17th Ed., Pp.514-15 26/44 juvenile justice
board.doc

61. Under the flexible model, most juveniles who appear in court are guaranteed a relatively low maximum penalty,
with exceptions for very serious cases. This model operates in the Netherlands. Article 77b of the Penal Code allows
courts to try suspects who were 16 or 17 years old at the time of the offence under ordinary adult criminal law if
they find grounds to do so in 'the seriousness of the crime, the personality of the offender, or the circumstances in
which the crime was committed'. Belgium and France, too, operate this model, with variations as to the juvenile's
age.[ 13] In the USA:

62. In Kent v. United States[ 14] , Kent, 16-year-old, was arrested for various charges. For 24 hours he was in police
custody; questioned, he admitted to some offenses. Then Kent was subject to the "exclusive jurisdiction" of the
District Juvenile Court, which could "only waive jurisdiction after a "full investigation" of the question of waiver."
In Kent's case, the Juvenile Court waived its jurisdiction without a hearing or allowing Kent's counsel to access
important Court Social Service files. The U.S. District Court dismissed Kent's claim and tried him as an adult. Later,
he was convicted as an adult.

63. When Kent's challenge eventually reached the US Supreme Court, it has considered the factors to be considered
before transferring 13[] Reforming Juvenile Justice, Josine Junger-Tas Frieder Dünkel Editors, Springer, Ed. 2009
14[] 383 U.S. 541 (1966) 27/44 juvenile justice board.doc juveniles to criminal court. According to it, the judges
must assess these factors thoroughly before waiving a juvenile to criminal court:

1. The seriousness of the alleged offense to the community and whether protecting the community requires waiver;
2. Whether the alleged offense was committed in an aggressive, violent, premeditated, or willed manner;
3. Whether the alleged offense was against persons or against property, greater weight being given to offenses
against persons, especially if personal injury resulted;
4. The prosecutive merit, i.e., whether there is evidence upon which a [court] may be expected to return an
indictment;
5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the
alleged offense are adults;
6. The sophistication and maturity of the juvenile by consideration of his home, environmental situation, emotional
attitude, and pattern of living;
7. The record and previous history of the juvenile, including previous contacts with . . . law enforcement agencies,
juvenile courts and other jurisdictions, prior periods of probation . . . or prior commitments to juvenile institutions;

8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile
(if he is found to have committed the alleged offense) by the use of procedures, services, and facilities currently
available 28/44 juvenile justice board.doc to the juvenile court.[ 15] (italics supplied) The Older Juvenile's
Characteristics:

(a) The Social Investigation Report, dt.18.08.2018:

64. In the absence of any other criteria, let us examine the case in the light shown by Kent. First, we will examine
the Social Investigation Report. Prefatorily, the Report classifies, rightly, the offence as heinous. About the older
juvenile, it notes he is a normal child; his father is an architect having his own office; the mother a homemaker; and
two siblings, younger sisters, both studying.

65. As to the relationship among the members of the family: father & mother--cordial; father & child--cordial;
mother & child-- cordial; father & siblings--cordial; mother & siblings--cordial; child & siblings--cordial; child &
relative--not known. The older juvenile's attitude towards religion, to sum up, is God-fearing; he does his prayers
regularly. Of moral code at home, the Report records it to be good, as the father is well-educated and is well aware
and concerned about the children's education. "All children are pursuing education. Parents often inquire about daily
schedule of children."

66. About the present living conditions, the Report reveals that before the incident, the family was living in its own
house. Post-

15[] Source: Dean J. Champion and G. Larry Mays, Transferring Juveniles to Criminal Courts: Trends and
Implications for Criminal Justice, Praeger, 1991, as quoted in Trial of Juveniles as Adults, p.19 29/44 juvenile
justice board.doc incident, it shifted to paternal uncle's house. Under the caption "other factors of importance if any",
the Report notes that after the incident the complainant and the neighbours turned hostile, so the family had to leave
the place.

67. About the older juvenile's habits, the Report notes that he does not smoke, drink, gamble, or beg. He uses no
drugs. He watches TV and movies, loves playing both indoors and outdoor games, reads books, but does not have
specific religious activities. He is fond of sports cars.

68. The juvenile's personality trait is reported to be "cool tempered and noticed to be sensible." The older juvenile's
attitude towards school, teachers, classmates and "vice-versa" reveals that he was not so regular to college and
average in studies. "He said he is absent from long as he was not keeping well due to harpies that he was infected."
Majority of his friends are educated, either of the same age or older, but belong to the same gender. His attitude
towards friends reveals that he spends good time with his friends. He is stated to have a good bonding with friends
and "so does his friends."

69. Of importance is the neighbours' observations or, more precisely, their absence. The Report reveals that
"neighbours are not contacted as the society is a flat system, other flats on the floor were locked & no one was
available to interact." This version, first, is difficult to believe and, second, the Report misses a vital opportunity
to 30/44 juvenile justice board.doc assess the juvenile in the eye of the neighbours--the miniature society. Then, on
the parental attitude towards discipline in the home and child's reaction, the Report observes that it is "noticed to be
good", as the parents stated they often enquire about the daily schedule of children, keep supervision on academics.
And the juvenile too affirms it.
70. Another vital factor in the Report concerns whether the "child has been subjected to any form of abuse." The
older juvenile informs the authorities that at the time of his admission into OHU, he "was beaten in the police station
by police officials" and that the statement was submitted to the Juvenile Justice Board for information. About the
"alleged role of the child in the offence", the older juvenile admits that he committed the crime. Despite that, the
Report concludes that the child is "manipulative based on verbal statements given by him."

71. The older juvenile's health is normal. As to the emotional factors, he is "observed to be emotionally stable. There
is no evidence of any kind of psychological disorder. " The [older juvenile] expressed his feelings of guilt and regret
for his unhealthy action in the offence." In other words, he is penitent.

72. Now comes the summation part of the Report. Under "Analysis of the case", the Report records that "the [older
juvenile] accepted his active involvement in the offence & stated that the girl was accidentally death by him.

31/44 juvenile justice board.doc [The older juvenile] mentioned that he and his friend Shoeb is partially involved in
the offence whereas he refers to this incident with the coincidence."

73. From the above extract, I gather that the older juvenile has admitted that he killed the girl, but that was
accidental. He states that his friend, the younger juvenile, has a partial role in the crime. He again reiterates the
crime was accidental.

74. Then comes the subjective observation in the Report. It states that the older juvenile "fumbled while providing
the details of the incident; his own information is contradicting with the other factors provided by him. And he was
not so co-operative during interview sessions and seems to be highly manipulate[ive]."

75. With due deference to the Probation Officer's opinion, I may note that the conclusion does not jibe well with the
rest of the Report. If the older juvenile is manipulative, he ought to be crafty and cunning. He must be glib, not
fumbling and clumsy. Then, he must not have admitted his guilt. On the contrary, he has, prima facie, made a clean
breast of the event.

76. Finally comes the "recommendation regarding rehabilitation by Probation Officer." The Report records that the
older juvenile is undergoing Class XII exam in OHU, "preparing well for the exam." Now it comes to light, he did
clear that examination. The parents were "at present unwilling . . . for the custody" of their child. They felt it better if
the child is kept in the 32/44 juvenile justice board.doc Observation Home for some more time, "as outside
environment is unfavourable and it might be harmful to the [older juvenile.]

77. The Report also records that the older juvenile was "counselled against the involvement in the criminal act & he
was also motivated for a need to focus on his academic career that will help him" make a better future. But the
Report concludes thus: "Considering the gravity of the offence and in the best interest of the [older juvenile], further
necessary orders can be passed." This report emanates from the Probation Officer.

(b) Mental Health Report:

78. The Mental Health Report comes from three Mental Health Experts of J. J. Group of Hospitals. It was given on
10th April 2017.

79. The MH Report begins with an observation that the older juvenile "has no psychiatric complaints at present."
Then it records, what the juvenile has narrated. The juvenile knew the victim as she used to stay in the same building
and often visited his house asking for chocolate, which he regularly kept in the house. Once he ignored the child's
request (on the fateful day), she started to snatch at his phone; then he pushed her. When she fell down, a wooden
plank fell on her. In that process, she got "accidentally strangulated due to computer wire." He is said to have
panicked and hidden her body in a bag (in his house) and threw it from the window to the terrace of a neighbouring
structure to evade suspicion.
33/44 juvenile justice board.doc

80. The MH Report records how the older juvenile has further dealt with the incident. He says that he announced the
news of the missing girl in the local Masjid. He claims to have tried to keep track of the search operations for the
missing child. Some people started voicing concerns that as no ransom calls were made, the child must be in the
locality. So he made ransom calls along with his friend, the second juvenile. He further claims to have never gone to
the place where he asked the child's father to drop the ransom money.

81. Then, MH Report records the juvenile's mental health assessment. In January 2008, he was taken to Psychiatry
OPD in Nair hospital for behavioural problems. "Provisional diagnosis conduct was made and he was kept under
observation on OPD basis. His IQ test showed average intelligence and CAT test in 2009 showed conflicts with
"authority figures". As per the available documents, he was given medications on 14.11.2009 for his behavioural
problems after which they never followed up. Further documents of treatment and further progression of illness is
not available. No history of any substance use. No family history of psychiatric illness. No history of any medical or
surgical illness.

82. On Mental Status Examination, the MH Report concludes that the older juvenile is "conscious, cooperative,
communicative; Attention is aroused and sustained; eye to eye contact initiated and maintained; rapport established;
oriented of time, place and person;

34/44 juvenile justice board.doc speech and thought conscious, coherent, relevant, no delusions. In one word, the
MH Report concludes that the older juvenile is normal and suffers from no mental incapacity to commit the offence.

(b) Juvenile Justice Board:

83. The Board comprised the Principal Magistrate and two members, one of whom was absent. In its Report or
Order, dt.22.08.2017, the Board has decided to try the older juvenile as an adult and the younger one as a juvenile.

84. After referring to the Social Investigation Report and the MH Report, the Board concludes, "[i]n the
circumstances stated above, I do not find any mitigating circumstances in the case of [older juvenile] to extend him
the benefit of Juvenile Justice Act." Of course, it takes a lenient view vis-à-vis the younger juvenile, given his
limited role in the crime.

(d) The Appellate Court:

85. On appeal, the Special Judge, Children's Court, has observed that the JJ Board has rightly appreciated the Social
Investigation Report and Physical & Mental Health Report. The appellate order holds that the older juvenile was of
sound mind and had the age of understanding the consequences when he allegedly committed the offence. It, then,
concluded, "I am of the considered view that [the older juvenile] cannot be inquired with by the JJ Board in view of
the heinous act committed by him, he has to be treated as an adult."

35/44 juvenile justice board.doc Does the Board's Decision, as Affirmed by the Appellate Court, Brook
Interference?

86. It is inadvisable to tinker with an expert's opinion. Yet it remains, after all is said and done, an opinion, at that.
The JJ Board has undertaken no independent assessment; it has, in fact, heavily relied on the Social Investigation
Report and MH Report. So its opinion, in the strict sense, cannot be branded an "expert opinion." The same
reasoning applies to the appellate order, too. That said, the two reports the Board has relied on are, indeed, expert
opinions: one rendered by a Probation Officer and the other by a panel of doctors. But neither report brings out into
open any exceptional circumstances that compel the older juvenile to face the trial as an adult.

87. So we need to revisit Section 15 of the Act to determine what circumstances compel a juvenile to face the trial as
if he were an adult. (1) It must be a heinous offence; here it is. (2) The child must have completed sixteen years; here
he has. (3) The Board must have conducted a preliminary assessment; here it has. (4) That preliminary assessment
concerns four aspects: (a) the child's mental and (b) physical capacity to commit such offence; (c) his ability to
understand the consequences of the offence; (d) and the circumstances in which he allegedly committed the offence.
The preliminary assessment, indeed, has been on all these aspects. Agreed. But has the Board found the child fitting
into the scheme on all four counts?

36/44 juvenile justice board.doc

88. I reckon of the four aspects--physical capacity, mental ability, understanding, and the circumstances--none is
dispensable. They all must be present, for they are not in the alternative. Let us remind ourselves, just because the
statute permits a child of 16 years and beyond can stand trial in a heinous offence as an adult, it does not mean that
the statute intends that all those children should be subject to adult punishment. It is not a default choice; a
conscious, calibrated one. And for that, all the statutory criteria must be fulfilled.

89. Here, the Social Investigation Report records many factors uniformly in the older juvenile's favour. It misses out
on one very vital aspect: the neighbourhood perception of the juvenile. It records an improbable circumstance: that
in a residential apartment, none was present to provide information on that count. On every other parameter, the
Report favours the juvenile. In fact, the juvenile makes a clean breast of the incident or crime and expresses remorse
for the accident, as he calls it. It is, true, an extra-judicial confession. So is what the police have extracted from him
about the child's death. The older juvenile did report to the Probation Officer about the police brutality and the
Report responds to it. It has informed the Board about the juvenile's allegation.

90. Despite the older juvenile's "confession" to crime, the Report records that he has been manipulative and evasive-
-even contradictory. But the very Report belies it. Perhaps, the gravity of the offence and the 37/44 juvenile justice
board.doc public outcry must have heavily weighed on the Report. Let us take, for want of better evaluative norms,
Kent's criteria and assess the Board's justification to try the older juvenile as an adult:

(1) The seriousness of the alleged offense to the community and whether protecting the community requires a
waiver:

The offence serious--even grave--and the community needs protection. But the Social Investigation Report misses
out on gathering the community's opinion whether it needs protection from this juvenile. Is he a predator on the
prowl and out to repeat the offence with or without provocation? The older juvenile, in fact, is an ordinary,
unremarkable neighbourhood boy.

(2) Was the alleged offence committed in an aggressive, violent, premeditated, or willed manner?

No. Even the extra-judicial confession does not spell out that it was.

(3) Was the alleged offense committed against persons or against property, with a greater weight attached to
offenses against persons, especially if personal injury resulted.

The alleged offence answers this claim here.

(4) The prosecutive merit of the complaint; that is, is there evidence upon which the court may be expected to return
a guilty verdict?

Very likely (only for the evaluative purpose, though) (5) The desirability of trial and disposition of the entire offense
in one court when the juvenile's associates in the alleged offense are 38/44 juvenile justice board.doc adults.

It does not apply here.


(6) The sophistication and maturity of the juvenile by consideration of his home, environmental situation, emotional
attitude, and pattern of living:

Post the alleged offence, the juvenile seems to have displayed some sophistication in making calls of ransom only to
deflect the police attention. But the juvenile's home, environmental situation, emotional attitude and pattern of living
are normal or unremarkable. Especially, his family and pattern of living are almost ideal, as per the Report.

(7) The record and previous history of the juvenile, including previous contacts with the law enforcement agencies,
juvenile courts and other jurisdictions, prior periods of probation or prior commitments to juvenile institutions.

To this criterion, the answer is a clear no. The juvenile had been pursuing his education, had been under strict
parental care, and has no criminal track record.

(8) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile
(if he is found to have committed the alleged offense) by using the procedures, services, and facilities currently
available to the juvenile court.

On this count, we may note that post the incident, the parents faced social opprobrium and shunning. They were
forced to shift to some other place. They preferred the juvenile to be kept in the Observation Home.

91. In the Observation Home, the older juvenile's conduct is 39/44 juvenile justice board.doc reported as good. He
studiously pursued his studies and even cleared the Board examination. Both the Social Investigation Report and the
MH Report reveal that the juvenile has been remorseful about the event and displayed a calm, unagitated mind.

92. The explanation to Section 15 of the Act clarifies that the preliminary assessment is not a trial; it is an exercise to
assess the child's capacity to commit and understand the consequences of the alleged offence.

93. In this context, if the Board's criteria of evaluation, as affirmed by the Appellate Court, are followed, then every
case becomes an open and shut case. If the child is 16 or above and is capable of committing the offence and
understanding the consequences, that will suffice. I am afraid it ought to be more than that. The whole endeavour of
the JJ Act is to save the child in conflict with the law from the path of self-destruction and being a menace to the
society. It is reformative, not retributive. Section 15, I believe, must be read and understood keeping in view the
objective that permeates the whole Act and the spirit it is imbued with.

94. That to contain crime, the State must be strict and the punishment must be harsh is an intuitive assertion; but
sometimes the solution to the crime are counterintuitive. Steven D. Levitt and Stephen J. Dubner, in their popular
book Freakonomics[ 16] , have 16[] In the introductory chapter, The Hidden Side of Everything, 40/44 juvenile
justice board.doc hypothesized that the juvenile crime in a few of states of the US has come down thanks to Roe v.
Wade, a judgment of the American Supreme Court that legalized abortion. Critics apart, there can be ideas that are
worth exploring. It is equally worthwhile, first, to explore for ideas, instead getting stuck in a predictable, plebian
approach to societal problems.

95. Let us not forget public opinion is versatile. One day it weeps for the victims and cries vengeance, sometimes
more than the victims themselves want. The next, it decries prison as a 'school of crime'.[ 17] What Does
Neuroscience Say?

96. "Weathering teenagers' adolescence often means just riding out the rough seas with them until calmer waters are
reached," observes the noted neuroscientist Frances E. Jensen (with Amy Ellis Nutt), under the Chapter Mental
Illness, in his book The Teenage Brain[ 18]. Then under the Chapter "Crime and Punishment", he quotes Steven
Drizin of Northwestern University in Chicago, a distinguished legal scholar, to the effect that, "Juveniles function
very much like the mentally retarded. The biggest similarity is their cognitive deficit. [Teens] may be highly
functioning, but that doesn't make them capable of making good decisions." Frances E. Jensen et al supply the
justification for that observation: "Teens, we now know, engage the 17[] Children Who Kill, Edited by Paul
Cavadino, Waterside Press in association with British Juvenile and Family Courts Society, Ed.2002, p.173 18[]
HarperCollins Publishers, eBook 41/44 juvenile justice board.doc hippocampus and right amygdala when faced with
a threat or a dangerous situation--this is why they are prone to being emotional and impulsive--whereas adults
engage the prefrontal cortex, which allows them to more reasonably assess the threat. We know that the risk factors
for teens committing violent acts include seeing violence and being the victims of it themselves."

97. Frances E. Jensen et al endorse the view of Valerie Reyna, a teacher and researcher in the Department of Human
Development at Cornell University, who summed up the competence of adolescents in the juvenile justice system
when she wrote in a 2006 journal article: "In the heat of passion, in the presence of peers, on the spur of the moment,
in unfamiliar situations, when trading off risks and benefits favors bad long-term outcomes, and when behavioral
inhibition is required for good outcomes, adolescents are likely to reason more poorly than adults do."

98. Merely on the premise that the offence is heinous and that it lends to the societal volatility of indignation, we are
bracing for juvenile recidivism. Retributive approach vis-à-vis juveniles needs to be shunned unless there are
exceptional circumstances, involving gross moral turpitude and irredeemable proclivity for the crime. Condemned,
any juvenile is going to be a mere numeral in prison for a lifetime; reformed, he may redeem himself and may
become a value addition to the Society. Let no child be condemned unless his fate is 42/44 juvenile justice board.doc
foreordained by his own destructive conduct. For this, a single incident not revealing wickedness, human depravity,
mental perversity, or moral degeneration may not be enough. Just deserts are more than mere retribution.

99. The Society, or restrictively the aggrieved person, views any problem ex post; it wants a wrong to be righted or
remedied to the extent possible. The courts, especially the Courts of Record, view the same problem ex ante. "It
involves looking forward and asking what effects the decision about this case will have in the future"[ 19]. To be
more accurate, the courts balance both perspectives. I reckon Section 15 of the Act requires us to balance both the
competing perspectives: ex post and ex ante.

100. So I conclude that the Board, in the first place, has mechanically relied on the Social Investigation Report and
MH Report, without analysing the older adult's case on its own. Similarly, the Appellate Court has also endorsed the
order in appeal, without exercising the powers it has under Section 101. So both fail the legal scrutiny; they have
failed to exercise the jurisdiction vested in them. About the Younger Juvenile:

101. Given the reversal of findings for the older juvenile, I reckon the younger juvenile's case requires little
cogitation. Suffice it to say, that his role in the alleged crime came after the baby's death. In 19[] The Legal Analyst,
Ward Farnsworth, The University of Chicago Press, Ed. 2007. P. 5 43/44 juvenile justice board.doc that context,
both the Board and the Appellate Court have felt that he would be chargeable under Section 201 of IPC. That
applied, it does not amount to heinous crime.

102. Prima facie Section 302 IPC does not apply to the younger juvenile. And how Section 34 IPC applies is too
premature a question that needs no answer right now. In Virendra Singh v. State of M.P.[ 20] , the Supreme Court
has held that vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand
fulfilled: the mental element or the intention to commit the criminal act conjointly with another or others; and the
actual participation in one form or the other in the commission of the crime. Thus, Section 34 concerns the question
of constructive criminality, and it is a matter of trial. Then, Section 385 attracts a maximum sentence of two years.
Finally remains Section 201.

103. As we have already discussed, a heinous offence is the offence for which the minimum punishment is seven
years or more. But under Section 201, seven years is the maximum punishment, not the minimum. Therefore, the
ratio of Saurabh Jalinder Nangre can be applied.

104. Even the Board and the Appellate Court have held that the younger juvenile must be tried only a juvenile. And
that finding needs no interference.
20[] (2010) 8 SCC 407

44/44
juvenile justice board.doc

ombay High Court: A Single Judge Bench comprising of Mridula Bhatkar, J. allowed a petition challenging the Juvenile
Justice Board, Sangli’s order passed on 19-1-2018 and 13-7-2018, committing a child who has not committed the heinous
offence to Children’s Court.
In the present case, petitioners concerned were not adults when they had attempted to commit an offence of murder
punishable under Section 307 IPC. They all were aged 17 years at the time of the commission of the offence and were
admittedly falling under the definition of Section 2 (12) of the Juvenile Justice (Care and Protection of Children) Act,
2000.
The petitioners were referred to a psychologist for assessment and on placing the report of the same before the JJ Board,
the assessment made by the board was that the mental, as well as physical capacity of CCL (Child in Conflict with Law),
was sufficient to commit crime. Therefore, JJ Board transferred the matter to the Children’s Court in accordance with
Section 18(3) of the Act. This order was challenged by the petitioners before the High Court.
Learned Counsel for the petitioners Mr Satyavrat Joshi stated that petitioners being “child” if not have committed a
heinous crime, then they are to be tried by JJ Board and not Children’s Court.
The Court considered Section 2(33) which defines heinous crime and noted that to be one which is punishable with a
minimum punishment of seven years or more. However, under Section 307 IPC, no minimum sentence is prescribed.
Therefore, Court was of the opinion that since the offence alleged to have been committed by the petitioners was a serious
offence and not heinous offence, Section 15 under which assessment into heinous offences was to be made by the Board
had no application. Furthermore, the Court embarked to cull put the steps to be followed by the Board in terms of inquiry
in such cases. The Board, stated the Court, should follow the following steps:
(a) To ascertain the age of the child
Whether he is above 16 years old, but below 18 years old?
(b) Nature of the offence
(i) Whether the offence is heinous under Section 2 (33) of the Act, which is to be decided on the basis of minimum
punishment of 7 years for the offence;
(ii) Whether it is a heinous offence or a serious offence or a petty offence;
(iii) In the offence, if minimum punishment is given for 7 years, then only it is to be considered as heinous offence under
section 2 (33) of the said Act.
(c) Juvenile Justice Board has to take into account Section 18 of the Act. If the child has committed (a) serious offence (b)
petty offence or (c) child below 16 years if has committed heinous offence, then Juvenile Justice Board is required to pass
an order after taking into account the circumstances as mentioned in Section 18 (a) to (g) and 18 (2) of the Act.
(d) Juvenile Justice Board to consider Section 15 of the said Act only if the offence is of heinous nature and it is
committed by a child, who is between 16 to 18 years, then Juvenile Justice Board shall go for a preliminary assessment.
(e) Under Section 15, Juvenile Justice Board may take the assistance of expert physiologists or psycho-social workers.
(f) Thereafter, Juvenile Justice Board shall pass an order under Section 18 (3) if child as an adult by transferring the trial of
the case to the Children’s Court.
(g) The Children’s Court to try the child as per Section 19 of the Act.
In the present case, on basis of the discussion as mentioned above, the Court held that the Board could not have transferred
the case to Children’s Court. Hence, the impugned order was quashed. The Board was directed to proceed with the
inquiry. [Saurabh Jalinder Nangre v. State of Maharashtra, 2018 SCC OnLine Bom 6295, dated 10-12-2018]
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Case name: Sampurna Behura v. Union of India & Ors.

Date of Judgment: February 09, 2018

In a recent case, the Two-Judge Bench of the Supreme Court extensively deliberated on the status of
Child care institutions in India under the The Juvenile Justice (Care and Protection of Children) Act,
2000 and the Juvenile Justice (Care and Protection) Act, 2015. The Bench in the case took strong
note of virtual non-implementation or tardy implementation of laws beneficial to children,
particularly, The Juvenile Justice (Care and Protection of Children) Act, 2000 and Juvenile Justice
(Care and Protection) Act, 2015.

The Supreme expressed its concern in the case by stating that:

What can a citizen do if the State pays no attention to his or her fundamental or human or
statutory right, nor takes serious interest in fulfilling its constitutional or statutory
obligations? What if that citizen is a voiceless child or someone whose voice cannot be
heard over the din of governance – for example, physically or mentally challenged persons,
senior citizens, and other disadvantaged sections of society such as scheduled castes,
tribals and several others? The aggrieved would perhaps approach the judiciary for the
enforcement of a human right. Should the judiciary take corrective steps and be accused of
‘judicial activism’ or overreach – or should the cynics and skeptics have their day resulting
in the grievance of the voiceless and the disadvantaged remaining unheard and the
fundamental and human rights lying unaddressed?

The Supreme Court in the case hearing a PIL instituted by one Sampurna Behura, wherein the
Petitioner drew attention to several Articles of the Constitution which impose primary responsibility on
the State to ensure that the needs of children are met and their basic human rights are protected. The
PIL highlighted the failure of State Governments to implement various provisions of the Act of 2000
including, inter alia, the establishment of Child Welfare Committees, Juvenile Justice Boards, Special
Juvenile Police Units, establishment of appropriate Homes for children in need of care and protection.
The Petitioner in the case prayed that the Chief Secretaries and the Directors General of Police and
Superintendents of Police of all the States should forthwith implement the Act of 2000 in its true spirit.

The Supreme Court Bench in view of the concerns expressed and the need to invigorate the
juvenile justice system in the country, issued the following directions:
 The Ministry of Women and Child Development (MWCD) in the Government of India and the
State Governments should ensure that all positions in the NCPCR (National Commission for
Protection of Child Rights) and the SCPRs (State Commission for Protection of Child Rights)
are filled up well in time and adequate staff is provided to these statutory bodies so that
they can function effectively and meaningfully for the benefit of the children.
 The NCPCR and the SCPCRs should take their duties, functions and responsibilities with great
earnestness keeping in mind the faith reposed in them by Parliament. A position in these
statutory institutions is not a sinecure. These bodies have a very significant and proactive
role to play in improving the lives of children across the country.
 The State level Child Protection Societies and the District level Child Protection Units have an
enormous responsibility in ensuring that the JJ Act is effectively implemented and Child
Care Institutions are managed and maintained in a manner that is conducive to the well-
being of children in all respects including nutrition, education, medical benefits, skill
development and general living conditions. These two bodies would be well advised to take
the assistance of NGOs and civil society to ensure that the JJ Act serves the purpose for
which it is enacted by Parliament.
 The State Governments must ensure that all positions in the JJBs and CWCs are filled up
expeditiously and in accordance with the Model Rules or the Rules framed by the State
Government. Any delay in filling up the positions might adversely impact on children and
this should be avoided.
 The JJBs (Juvenile Justice Board) and CWCs (Child Welfare Committees) must appreciate that
it is necessary to have sittings on a regular basis so that a minimal number of inquiries are
pending at any given point of time and justice is given to all juveniles in conflict with law
and social justice to children in need of care and protection. This is a constitutional
obligation.
 The NCPCR and the SCPCRs must carry out time-bound studies on various issues, as deemed
appropriate, under the JJ Act. Based on these studies, the State Governments and the
Union Territories must take remedial steps.
 In particular the NCPCR and the SCPCRs must carry out a study for estimating the number of
Probation Officers required for the effective implementation of the JJ Act. Based on this
study, the State Government must appoint the necessary number of Probation Officers. It
must be emphasised that the role of a Probation Officer is critical for the rehabilitation and
social reintegration of a juvenile in conflict with law and due importance must be given to
their duties as postulated in the Model Rules and Rules, if any, framed by the State
Governments and the Union Territories.
 The MWCD must continue to make creative use of information and communication technology
not only for the purpose of collecting data and information but also for other issues
connected with the JJ Act such as having a database of missing children, trafficked children
and for follow up of adoption cases etc. With the utilization of technology to the fullest
extent, administrative efficiency will improve considerably, which in turn will have a positive
impact on the lives of children.
 It is important for the police to appreciate their role as the first responder on issues pertaining
to offences allegedly committed by children as well as offences committed against children.
There is therefore a need to set up meaningful Special Juvenile Police Units and appoint
Child Welfare Police Officers in terms of the JJ Act at the earliest and not only on paper. In
this context, it is necessary to clearly identify the duties and responsibilities of such Units
and Officers and wherever necessary, guidance from the available expertise, either the
National Police Academy or the Bureau of Police Research and Development or NGOs must
be taken for the benefit of children.
 The National Police Academy and State Police Academies must consider including child rights
as a part of their curriculum on a regular basis and not as an isolated or sporadic event.
 The management of Child Care Institutions is extremely important and State Governments
and Union Territories would be well advised to ensure that all such institutions are
registered so that children can live a dignified life in these Institutions and issues of missing
children and trafficking are also addressed.
 State Governments and Union Territories would be well advised to appoint eminent persons
from civil society as Visitors to monitor and supervise the Child Care Institutions in all the
districts. This will ensure that the management and maintenance of these Institutions are
addressed. We have no doubt that the State Legal Service Authorities and the District Legal
Service Authorities will extend full assistance and cooperation to the government authorities
in this venture as well as to the Visitors.
 The JJ Fund is a bit of an embarrassment with an absence of an effective response from the
State Governments and the Union Territories. If financial resources are not made available
for the welfare of the children we shudder to think what could be better utilization of the
funds.
 We request NALSA (National Legal Services Authority) to carry forward the exercise and
complete a Report preferably before 30th April, 2018 to assist all the policy making and
decision taking authorities to plan out their affairs.
 The importance of training cannot be over-emphasized. It is vital for understanding and
appreciating child rights and for the effective implementation of the JJ Act. All authorities
such as JJBs and CWCs, Probation Officers, members of the Child Protection Societies and
District Child Protection Units, Special Juvenile Police Units, Child Welfare Police Officers and
managerial staff of Child Care Institutions must be sensitized and given adequate training
relating to their position. A very positive step has been taken in this regard by NALSA and
we expect the NCPCR with the assistance of the SCPCRs to carry forward this initiative so
that there is meaningful implementation of the JJ Act.
 Since the involvement of the State Governments and the Union Territories is critical to child
rights and the effective implementation of the JJ Act, it would be appropriate if each High
Court and the Juvenile Justice Committee of each High Court continues its proactive role in
the welfare of children in their State. To make the involvement and process more
meaningful, we request the Chief Justice of every High Court to register proceedings on its
own motion for the effective implementation of the Juvenile Justice (Care and Protection of
Children) Act, 2015 so that road-blocks if any, encountered by statutory authorities and the
Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the
concerned governmental authorities.
 Finally, we request and urge the Chief Justice of each High Court to seriously consider
establishing child friendly courts and vulnerable witness courts in each district. Inquiries
under the JJ Act and trials under other statutes such as the Protection of Children from
Sexual Offences Act, 2012, the Prohibition of Child Marriage Act, 2006, trials for sexual
offences under Indian Penal Code and other similar laws require to be conducted with a
high degree of sensitivity, care and empathy for the victim.
 It is often said that the experience in our courts of a juvenile accused of an offence or the
victim of a sexual offence is traumatic. We need to have some compassion towards them –
even juveniles in conflict with law, since they are entitled to the presumption of innocence –
and establishing child friendly courts and vulnerable witness courts is perhaps one manner
in which the justice delivery system can respond to ease their pain and suffering. Another
advantage of such child friendly courts and vulnerable witness courts is that they can be
used for trials in which adult women are victims of sexual offences since they too are often
traumatized by the not so friendly setting and environment in our courts.

The entire case can be accessed here.

Finally, we request and urge the Chief Justice of each High Court to seriously consider establishing
child friendly courts and vulnerable witness courts in each district. Inquiries under the JJ Act and trials
under other statutes such as the Protection of Children from Sexual Offences Act, 2012, the
Prohibition of Child Marriage Act, 2006, trials for sexual offences under Indian Penal Code and other
similar laws require to be conducted with a high degree of sensitivity, care and empathy for the
victim.

 The Ministry of Women and Child Development (MWCD) in the Government of India and the
State Governments should ensure that all positions in the NCPCR (National Commission for
Protection of Child Rights) and the SCPRs (State Commission for Protection of Child Rights)
are filled up well in time and adequate staff is provided to these statutory bodies so that
they can function effectively and meaningfully for the benefit of the children.
 The NCPCR and the SCPCRs should take their duties, functions and responsibilities with great
earnestness keeping in mind the faith reposed in them by Parliament. A position in these
statutory institutions is not a sinecure. These bodies have a very significant and proactive
role to play in improving the lives of children across the country.
 The State level Child Protection Societies and the District level Child Protection Units have an
enormous responsibility in ensuring that the JJ Act is effectively implemented and Child
Care Institutions are managed and maintained in a manner that is conducive to the well-
being of children in all respects including nutrition, education, medical benefits, skill
development and general living conditions. These two bodies would be well advised to take
the assistance of NGOs and civil society to ensure that the JJ Act serves the purpose for
which it is enacted by Parliament.
 The State Governments must ensure that all positions in the JJBs and CWCs are filled up
expeditiously and in accordance with the Model Rules or the Rules framed by the State
Government. Any delay in filling up the positions might adversely impact on children and
this should be avoided.
 The JJBs (Juvenile Justice Board) and CWCs (Child Welfare Committees) must appreciate that
it is necessary to have sittings on a regular basis so that a minimal number of inquiries are
pending at any given point of time and justice is given to all juveniles in conflict with law
and social justice to children in need of care and protection. This is a constitutional
obligation.
 The NCPCR and the SCPCRs must carry out time-bound studies on various issues, as deemed
appropriate, under the JJ Act. Based on these studies, the State Governments and the
Union Territories must take remedial steps.
 In particular the NCPCR and the SCPCRs must carry out a study for estimating the number of
Probation Officers required for the effective implementation of the JJ Act. Based on this
study, the State Government must appoint the necessary number of Probation Officers. It
must be emphasised that the role of a Probation Officer is critical for the rehabilitation and
social reintegration of a juvenile in conflict with law and due importance must be given to
their duties as postulated in the Model Rules and Rules, if any, framed by the State
Governments and the Union Territories.
 The MWCD must continue to make creative use of information and communication technology
not only for the purpose of collecting data and information but also for other issues
connected with the JJ Act such as having a database of missing children, trafficked children
and for follow up of adoption cases etc. With the utilization of technology to the fullest
extent, administrative efficiency will improve considerably, which in turn will have a positive
impact on the lives of children.
 It is important for the police to appreciate their role as the first responder on issues pertaining
to offences allegedly committed by children as well as offences committed against children.
There is therefore a need to set up meaningful Special Juvenile Police Units and appoint
Child Welfare Police Officers in terms of the JJ Act at the earliest and not only on paper. In
this context, it is necessary to clearly identify the duties and responsibilities of such Units
and Officers and wherever necessary, guidance from the available expertise, either the
National Police Academy or the Bureau of Police Research and Development or NGOs must
be taken for the benefit of children.
 The National Police Academy and State Police Academies must consider including child rights
as a part of their curriculum on a regular basis and not as an isolated or sporadic event.
 The management of Child Care Institutions is extremely important and State Governments
and Union Territories would be well advised to ensure that all such institutions are
registered so that children can live a dignified life in these Institutions and issues of missing
children and trafficking are also addressed.
 State Governments and Union Territories would be well advised to appoint eminent persons
from civil society as Visitors to monitor and supervise the Child Care Institutions in all the
districts. This will ensure that the management and maintenance of these Institutions are
addressed. We have no doubt that the State Legal Service Authorities and the District Legal
Service Authorities will extend full assistance and cooperation to the government authorities
in this venture as well as to the Visitors.
 The JJ Fund is a bit of an embarrassment with an absence of an effective response from the
State Governments and the Union Territories. If financial resources are not made available
for the welfare of the children we shudder to think what could be better utilization of the
funds.
 We request NALSA (National Legal Services Authority) to carry forward the exercise and
complete a Report preferably before 30th April, 2018 to assist all the policy making and
decision taking authorities to plan out their affairs.
 The importance of training cannot be over-emphasized. It is vital for understanding and
appreciating child rights and for the effective implementation of the JJ Act. All authorities
such as JJBs and CWCs, Probation Officers, members of the Child Protection Societies and
District Child Protection Units, Special Juvenile Police Units, Child Welfare Police Officers and
managerial staff of Child Care Institutions must be sensitized and given adequate training
relating to their position. A very positive step has been taken in this regard by NALSA and
we expect the NCPCR with the assistance of the SCPCRs to carry forward this initiative so
that there is meaningful implementation of the JJ Act.
 Since the involvement of the State Governments and the Union Territories is critical to child
rights and the effective implementation of the JJ Act, it would be appropriate if each High
Court and the Juvenile Justice Committee of each High Court continues its proactive role in
the welfare of children in their State. To make the involvement and process more
meaningful, we request the Chief Justice of every High Court to register proceedings on its
own motion for the effective implementation of the Juvenile Justice (Care and Protection of
Children) Act, 2015 so that road-blocks if any, encountered by statutory authorities and the
Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the
concerned governmental authorities.
 Finally, we request and urge the Chief Justice of each High Court to seriously consider
establishing child friendly courts and vulnerable witness courts in each district. Inquiries
under the JJ Act and trials under other statutes such as the Protection of Children from
Sexual Offences Act, 2012, the Prohibition of Child Marriage Act, 2006, trials for sexual
offences under Indian Penal Code and other similar laws require to be conducted with a
high degree of sensitivity, care and empathy for the victim.
 It is often said that the experience in our courts of a juvenile accused of an offence or the
victim of a sexual offence is traumatic. We need to have some compassion towards them –
even juveniles in conflict with law, since they are entitled to the presumption of innocence –
and establishing child friendly courts and vulnerable witness courts is perhaps one manner
in which the justice delivery system can respond to ease their pain and suffering. Another
advantage of such child friendly courts and vulnerable witness courts is that they can be
used for trials in which adult women are victims of sexual offences since they too are often
traumatized by the not so friendly setting and environment in our courts.
IN THE HON’BLE SUPREME COURT OF INDICA

IN THE MATTER OF

MR. X, SAHIL’S FATHER

..............................................................................PETITIONER

VERSUS

UNION OF INDIA AND ORS.

..............................................................................RESPONDENTS

MOST RESPECTFULLY SUBMITTED TO THE


HON’BLE JUDGE ON BEHALF OF THE PETITIONER

Name – Pratham Shah

Sem - 4

Division – A
Roll No – 1

TABLE OF CONTENTS

Contents Page No

List of Abbreviation 3

Index of Authorities 4

The Statement of Jurisdiction 5-6

The Statement of Facts 7-8

The Statement of Issues 9

The Summary of Arguments 10

The Advanced Arguments 11-17

The Prayer 18
LIST OF ABBREVIATION

Hon’ble Honourable

Sec. Section

U.N. United Nations

V/s. Versus

W.W.W. World Wide Web

Cr.P.C. Criminal Procedure Code

JJA Juvenile Justice Act


INDEX OF AUTHORITIES

STATUES:

 Juvenile Justice (Care and Protection of Children) Act, 2015

 The Code of Criminal Procedure, 1973

 Indian Penal Code, 1860

 United Nations Convention on the Rights Of the Child,1990

WEBSITES:

http://www.indiakanoon.com/

https://www.ohchr.org

https://www.advocatekhoj.com
STATEMENT OF JURISDICTION

The Counsels representing the Appellants have endorsed their pleadings before the Hon’ble
High Court of Gujarat under Article 32 of the Constitution and Section 15 of Juvenile Justice
(Care and Protection of Children) Act, 2015which confers upon this Court, the jurisdiction to
hear the said matter.

Article-32 of the Constitution of India reads as under:-

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution
Section-15 of Juvenile Justice (Care and Protection of Children) Act, 2015 reads as under:
Preliminary assessment into heinous offences by Board.

1. In 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,
ability to understand the consequences of the offence and the circumustances in which he
allegedly committed the offence, and may pass an order in accordance with the
provisions of subsection (3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced
psychologists or psycho-social workers or other experts.

Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a
trial, but is to assess the capacity of such child to commit and understand the consequences of the
alleged offence.

2. Where the Board is satisfied on preliminary assessment that the matter should be
disposed of by the Board, then the Board shall follow the procedure, as far as may be, for
trial in summons case under the Code of Criminal Procedure, 1973:

Provided that the order of the Board to dispose of the matter shall be appealable under sub-
section (2) of section 101:

Provided further that the assessment under this section shall be completed within the period
specified in section 14.
STATEMENT OF FACTS

1. Insophia is one of the developing countries in the south of Asia. Raghav was a poor boy
lives in city of Ahmed in Rajpath. He started working at Mr. Soham‘s house who belongs
to reserved category at the age 12. Raghav use to do all the household work very
efficiently since last 5 years.

2. Soham had two kids elder son name Vansh 18 years old and younger daughter Vani aged
15 years.

3. Vansh and Vani always use to behave rudely with Raghav and their behaviour towards
Raghav was condescending even they also use to insult him occasionally. Raghav also
had complained the same to Mr. Soham several times but he never paid attention to
Raghav‘s complain.

4. Shail another boy aged 16 years was staying in the neighbour of Mr. Sohan. While
playing hockey Shail’s ball got hit with Vani‘s head as result of which she had small head
injury. As a consequence of these Vansh and Shail had quarrel between them which was
then sorted by intervention of another neighbour Mr. Slok a resident of the same society.

5. Vansh and Shail were already having grievances with each other since childhood and
Shail was also were well aware about the fact that both brother and sister do not have
good relation and Raghav.
6. On 7th of January 2017 Raghav took a leave of 5 days to go to his village for the
marriage of his brother. After two days it was Sunday, so both brother and sister went in
a exhibition of book fair 8 kilometres away from their residence which was at the
outskirts of the city.

7. At 6:30pm they reached the venue of the exhibition. The organizers of the exhibition
were good friends of Mr. Soham, and hence Vansh became busy talking to them
meanwhile at 8:30pm he came to know that Vani was missing hence they stated to search
her.

8. At around 10:00pm one of the guards went to the basement to switch off the lights where
he found a girl lying unconscious on the ground he informed the family and she was
identified as Vani after that they brought her back home.

9. Vani narrated the whole story to her parents, that she was taken to the basement area by
Raghav and Shail and further stated that they, outraged her modesty by tearing off her
clothes.

10. She stated that she was also subjected to rape. When she shouted for help her mouth was
forcefully shut and in a sudden haste she was strangled and then she became unconscious.
And then the boys ran away.

11. On the next day that is 10th of January FIR was being registered to the nearest police
station against Raghav and Shail, they both were charged under various sections of IPC
and, The protection of children from sexual offence act 2012 and the schedule cast and
schedule tribe amendment act 2015.

12. On 11th of August the investigating officer arrested Raghav from one of the longue near
his village and Shail was arrest from his maternal uncle’s house and the case went to the
juvenile justice board as both were minor.

13. A preliminary assessment was about to be made under section 15 of the juvenile justice
board as both were minor and hence it could be decided that whether the case can be
heard by the district and session‘s court or it will be decided by the juvenile justice board.
14. Sahil’s father decided to challenge the constitutional validity of the section 15 of
juvenile justice act 2015(2 of 2016) before Supreme court of Indicia.

15. The Supreme Court issued notice and the matter is kept for further hearing.

 Laws of Indica is similar to laws of India

ISSUES

I. WHETHER OR NOT THIS WRIT PETITION IS MAINTAINABLE


UNDER ARTICLE 32 OF CONSTITUTION?

II. WHETHER OR NOT THE SECTION 15 OF THE JUVENILE


JUSTICE ACT,2015 IS VIOLATIVE OF CONSTITUTIONAL
MANDATES?

III. WHETHER OR NOT THE SECTION 15 OF THE JUVENILE


JUSTICE ACT,2015 IS IN CONTRAVENTION OF UN
CONVENTION OF CHILD RIGHTS CHARTER?
SUMMARY OF ARGUMENTS

I. WHETHER OR NOT THIS WRIT PETITION IS MAINTAINABLE UNDER


ARTICLE 32 OF CONSTITUTION?

Yes, this writ petition is maintainable under Article-32 of the constitution as the Supreme court
has powers under the Article-32 to entertain such writs when the fundamental rights of a person
are infringed. Here fundamental rights under Article-14 and Article-15(3) are infringed and thus
this writ is maintainable.

II. WHETHER OR NOT THE SECTION 15 OF THE JUVENILE JUSTICE ACT,2015


IS VIOLATIVE OF CONSTITUTIONAL MANDATES?

Yes, this section is violative of constitutional mandates. The principle of linking maturity of a
child with the gravity of offence is not acceptable. This section is violative of doctrine of
presumption of innocence. Also it violates the doctrine of fresh start not allowing the offenders
to reintegrate in the society. The principles regarding children’s court are absent in some cases
while defective in some. All of these grounds are enough to make the act constitutionally invalid.
III. WHETHER OR NOT THE SECTION 15 OF THE JUVENILE JUSTICE ACT,2015
IS IN CONTRAVENTION OF UN CONVENTION OF CHILD RIGHTS
CHARTER?
Yes the section 15 of Juvenile Justice Act,2015 is in contravention of UN Convention of Child
rights. The United Nations Child Rights Committee (‘Child Rights Committee’) has
unequivocally stated that treatment of children as adults is a violation of the right against
discrimination embodied in the CRC. It is violative of various Articles of this charter like
Article-2(2), 6(2), 37(2), 39, 40(1) etc.

ADVANCED ARGUMENTS

1. WHETHER OR NOT THIS WRIT PETITION IS MAINTAINABLE UNDER


ARTICLE 32 OF CONSTITUTION?

Yes, this petition is maintainable under Article-32 of the Constitution. Article-32


gives the powers to the Supreme Court to entertain a writ petition and direct such writes or
directions.

As per Article 32 of the constitution, Remedies for enforcement of rights conferred by


this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part

Thus, under Article -32 writ petition can be filed when a fundamental right protected by the
constitution is infringed

Locus Standi

Section 15 of juvenile justice act is violative of Article 14 and Article 15(3) of Constitution.

Article 14 of the constitution states that,

Equality before law- The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.

Article 15(3) in The Constitution Of India 1949

(3) Nothing in this article shall prevent the State from making any special provision for women
and children

Here Article 15 gives the power to make special provisions for children. Also according to
section 2(12) of juvenile justice (Care and protection) Act ,2015 - ‘child means a person who
has not completed eighteen years of age’; So Section 15 of juvenile justice (Care and protection)
Act ,2015 violates the Article 14 in the way because it discriminates between the children of age
16-18 and 0-16 , which is contradictory to definition of child .
It would be against the guarantee of Article 14 of the Constitution which deems that only like
individuals be treated equally. Special provisions for juveniles are in fact in accordance with the
mandate of Article 15(3) which permits the State to make laws catering to the specific needs of
children. Therefore, the transfer mechanism within the 2015 Act is violative of constitutional
mandates.
So the writ petition is maintainable in this Honble Supereme Court .
2. Whether or not the section 15 of the juvenile justice act,2015 is violative
of constitutional mandates?

According to sec-2(12) of juvenile justice act a child means any person below the age of 18
years. Also as we see children are one of the most vulnerable sections of society. They should be
protected as they are prone to crimes more easily.
If we see the origin of the act of 2015, it was the result of horrific rape of a young student in
2015. This led to tremendous public outcry demanding a change in the juvenile justice laws,
lowering the age limit of juveniles, and stricter punishment for juveniles committing grave
offences like rape and murder. The government justified the law as a measure which would have
a deterrent effect on potential juvenile offenders. This act was a result of outrage against a
specific incident and thus can’t be given constitutional validity on the basis of following
grounds:

2.1 The link between the gravity of the offence and maturity of the child and its
psychological impact:-
The 2015 Act vests the Board with the power to make a preliminary assessment of the
maturity of a child above the age of sixteen, who has committed a heinous offence. The
Board is required to assess the mental and physical capacity of a child to commit such
offence, his ability to understand its consequences, and the circumstances in which the said
offence was committed. Using these parameters, the Board is to accurately determine, within
a period of three months, whether the child committed the offence as a child or as an adult.
The Board may obtain the assistance of experienced psychologists for such determination.
The structure proposed by the 2015 Act suggests that the commission of a heinous crime by a
juvenile is an indication that the juvenile is as mature as an adult, and thus need not receive
special treatment provided to children within the juvenile justice system in India. However,
Neuroscience findings reveal that while the cognitive capacity of a child above the age of
sixteen is similar to that of an adult, the psychosocial maturity is not. 1The research indicates
that children are unable to look more than a few days into the future while making decisions,
and thereby place emphasis on the short term consequences rather than on long term impacts.
Psychological research also consistently demonstrates that children have a greater tendency
than adults to make decisions based primarily on emotions such as anger or fear, than guided
by logic or reason.
Thus, determination of maturity of the child is something very abstract.

2.2 Violation of doctrine of presumption of innocence


The evaluation by the Board of the maturity of the juvenile to commit the offence is the first
step of the evaluation process, taking place before it is even proved if the offence has been
committed by the juvenile.

1
Laurence Steinberg, Adolescent Development and Juvenile Justice, (2008)
Thus, the preliminary assessment of the Board proceeds on the assumption that the
alleged offence has been committed, and is thus a sentencing decision before guilt is
established. This contravenes the constitutional guarantee of presumption of innocence. The
further trial of the juvenile also proceeds on this preliminary assumption of culpability, which
may prejudice the decision making body against the juvenile.
Also the child is kept as an adult during the trial after his maturity is proved but before
the offence is proved and thus is violative of doctrine of presumption of offence.

2.3 The essential provisions regarding children’s court are either absent or defective.
The Board, through its preliminary assessment, may conclude that the heinous offence was
committed by the juvenile as an adult. On such determination, the juvenile is transferred to
the jurisdiction of the Children’s Court. The Children’s Court is empowered under the 2015
Act to conclusively determine whether there is “need for trial” of the child as an adult.
But the parameters on the basis of which such discretion is to be exercised are absent. If
the Children’s Court opines that trial be conducted as an adult, the child would be prosecuted
and punished as an adult, as per the provisions of the Criminal Procedure, Code, 1973, thus
transferring the child out of the juvenile system. The structure proposed by the 2015 Act
would, in essence, lead to trial of the child in adult courts, by persons not adequately trained
in dealing with children.
First, it ought to be noted that specialised Children’s Courts have either not been set up or
are not functional in majority of states and Union Territories in India. In the absence of
Children’s Courts, Sessions Courts, which are adult courts, are vested with the jurisdiction of
dealing with juvenile offenders above the age of sixteen. Conducting the trial of a juvenile as an
adult in a criminal court violates the juvenile’s right to fair trial. Adult courts, in their
functioning, are insensitive to the needs of a juvenile and the complicated legal environment is
not suitable for conducting trials of juveniles. Thus the transfer to adult courts is termed as
violative of right to personal life and liberty secured under Article 21 of the Constitution.

2.4 Violation of the doctrine of fresh start


Principle of doctrine of fresh start deals with the reformation of the offenders and their
reintegration in the society. The principle of fresh start seeks to liberate juvenile offenders
from the stain of a criminal conviction and offers them a second chance, a fresh start free of
the social and economic disabilities which often accompany a conviction. Thus treating a
juvenile as an adult will take away the opportunities of rehabilitation.

Thus by taking in consideration all of these grounds we could say that section 15 of juvenile
justice act, 2015 is violative of constitutional mandates.
3. Whether section 15 of Juvenile Justice Act, 2015 is in contravention of
UN convention of child rights Charter?

United Nations has declared the convention of child rights to protect the fundamental rights of
the child and for its welfare. India is one of its member states which has signed and ratified this
convention. Section 15 of the Juvenile justice Act 2015 in one manner or the other is violative of
this convention. In fact the United Nations Child Rights Committee (‘Child Rights Committee’)
has unequivocally stated that treatment of children as adults is a violation of the right against
discrimination embodied in the CRC.
According to Article 2(2) of this charter, ‘States Parties shall take all appropriate measures to
ensure that the child is protected against all forms of discrimination or punishment on the basis
of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or
family members.’

According to Article 6(2) of this charter States, ‘Parties shall ensure to the maximum extent
possible the survival and development of the child.’

Punishing a child as an adult would be violative of Article 2(2) as it prohibits giving punishment
on its status of the child. Also it would hinder the development of the child and its survival in
some cases. Also Article 28 provides for the right of education of the child which is violated if a
child is imprisoned as an adult.

According to Article 37(2) states that, ‘No child shall be deprived of his or her liberty
unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity
with the law and shall be used only as a measure of last resort and for the shortest appropriate
period of time.’

Section 15 of juvenile Justice Act is contrary to Article 37(2) that it clearly states that the arrest,
detention or imprisonment shall be used as a measure of last resort, but Section 15 treats child as
an adult and gives imprisonment.

According to Article 39, States ‘Parties shall take all appropriate measures to promote physical
and psychological recovery and social reintegration of a child victim of: any form of neglect,
exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or
punishment; or armed conflicts. Such recovery and reintegration shall take place in an
environment which fosters the health, self-respect and dignity of the child.’

Section 15 JJA does not give the chance to child the child between the age of 16 to 18 to promote
their physical and psychological recovery and also to reintegrate back in the society.

According to Article 40(1), ‘States Parties recognize the right of every child alleged as, accused
of, or recognized as having infringed the penal law to be treated in a manner consistent with the
promotion of the child's sense of dignity and worth, which reinforces the child's respect for the
human rights and fundamental freedoms of others and which takes into account the child's age
and the desirability of promoting the child's reintegration and the child's assuming a constructive
role in society.’

Under Indian Law the child accused of infringing the penal law does not respect the rights and
freedom of the child on account of its age and desirability between the age of 16 to 18 years of
age.

Thus by taking account all this violations of the charter we could say that the said act is
inconsistent with the UN convention of child rights.
PRAYER

Wherefore, in the light of facts presented, issues raised, arguments advanced and authorities cited
the counsels for the Petitioner humbly prays before this Hon’ble Court that:

 Be pleased to Admit and Allow this petition.


 Be pleased to declare sec-15 of Juvenile Justice( Care and Protection) Act, 2015 as
unconstitutional and ultravires.

Or pass any other order the Hon’ble Court may deem fit in the interest of justice, equity and
good conscience.

AND FOR THIS ACT OF KINDNESS OF YOUR LORDSHIPS THE PETITIONER SHALL
AS DUTYBOUND EVER PRAY.
PG NO.1
Lex Auctor B. Parmeshwar Dayal National Moot Court Competition - 2016
MEMORANDUM FOR THE PETITIONER
BEFORE
THE HONORABLE SUPREME COURT OF INDICA
UTC= LA-BIDDING
2016
UNDER ARTICLE 32 OF CONSTITUION OF INDICA
IN THE MATTER OF
SATYA AND SASHI …………………………………………………………PETITIONER
V.
STATE OF MAHARAJ PRADESH……………………………………………..RESPONDENT
WRITTEN SUBMISSION ON BEHALF OF PETITIONER
PG NO.2
Lex Auctor B. Parmeshwar Dayal National Moot Court Competition - 2016
MEMORANDUM FOR THE PETITIONER
TABLE OF CONTENTS
1) Index of abbreviation………………………………………………… PG NO.- 3
2) Index of authorities…………………………………………………… PG NO.-5
3) Statement of jurisdiction……………………………………………... PG NO.-11
4) Statement of facts.....................................................................................PG NO-12
5) Statement of issues……………………………………………………. PG NO.-15
6) Summary of arguments………………………………………………. PG NO.-16
7) Written pleadings……………………………………………………... PG NO.-18
8) Prayer…………………………………………………………………. PG NO.-29
PG NO.3
Lex Auctor B. Parmeshwar Dayal National Moot Court Competition - 2016
MEMORANDUM FOR THE PETITIONER
INDEX OF ABBREVIATION
Cr. Criminal
Appl. Appeal
w.p. Write petition
Rev. Revision
Mrs. Mister
Vs. Versus
Up Uttar Pradesh
Gov. Government
Scc Supreme court case
& And
@ At the rate
Air All India reporter
Fir First important report
Gov. Government
Hon‟al Honorable
OR‟s. Others
Pg. Page
Uoi Union of India
Anr. Another
Mrs. Misses
Ccr. Current criminal report
Ed. Edition
i.l.r Indian law reporter
l.j. Law journal
Re. Reference
Sd/ Singed
PG NO.4
Lex Auctor B. Parmeshwar Dayal National Moot Court Competition - 2016
MEMORANDUM FOR THE PETITIONER
Index of authorities
Supreme Court cases
1) Salili bali vs. union of India w.p. no. 10 of 2013
2) Upendra Pradhan vs. state of Orissa cra. Appl. No. 2174 of 2009
3) Ram narin vs. state of up cr. Misc. pit. No. 7526 of 2015
4) Hari ram vs. state of rajasthan cr. Appl. No. 907 of 2009
5) Babloo singh vs. state of up cr. Appl. No. 763 of 2003
6) Raju vs. state of Haryana cr. Appl. No. 281 of 2010
7) Munna vs. state scc 154 (2) 1989
8) Dharanbir vs. state cr. Appl. No. 860 of 2010
9) Gopinath gosh vs. state of Bengal scc 228 of 1984
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10) Alwzar Hossain vs. state of Bengal scc 489 (10) 2012
11) Pradip kumar vs. state of up scc 419 (4) 1995
12) The State Of West Bengal vs Anwar All Sarkar1952 AIR 75, 1952 SCR 284
13) Ramana Dayaram Shetty Vs International Airport Authority Of India And Others
(1979 AIR(SC) 1628 )
14) Anwar Ali Sarkar vs The State Of West Bengal AIR 1952 Cal 150
15) Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104
16) T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
17) State of Punjab v. Balkaran Singh, (2006) 8 SCC 481, 655
18) Tahseen poonawalla v union of india
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19) Bandhua Mukti Morcha v. Union of India & Ors., AIR 1984 SC
20) Romesh Thappar vs The State Of Madras 1950 AIR 124, 1950 SCR 594
21) Dr. Subramanian Swamy v. Raju S.L.P. (Crl) No.1953 of 2014
22) S.P. Gupta v. President of India & Ors., AIR 1982 SC 149
23) Union for Democratic Rights v. Union of India & Ors., AIR 1982 SC 1473
24) Sheela Barse v. Union of India 16AIR 1986 SC 1773
25) M/S SHARMA TRANSPORT REP.BY SHRI D.P.SHARMA Vs. GOVERNMENT
OF A.P. & ORS.(AIR 2002 SC 322
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STATUES
1) Juvenile Justice (Care and Protection of Children) Act, 2015
2)The Indian Penal Code, 1860
3) The Constitution of India
4) The United Nations Convention on the Rights of the Child
WEBSITES
1. WWW.SUPREMECOURTCASES.COM
2. WWW.INDIANKANOON.COM
3. WWW.MANUPATRA.COM
4. WWW.LIVELAW.COM
5. WWW.FIRSTPOST.COM
6. WWW.LEGALBLOG.IN
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BOOKS AND ARTICLES
V.G. Ramachandran, Law of Writs (6th ed. 2006).
Subhash C Kashyap, Constitutional Law Of India (2008)
Durga Das Basu, Commentary on the Constitution of India, (8th ed. 2008)
Arvind P. Datar, Commentary on Constitution of India (2nd ed. 2007).
Shiva Rao, Framing of the Indian Constitution
DR. L.M. SINGHVI, CONSTITUTION OF INDIA( 2nd ed.) Vol I
H.M. Seervai , Constitutional Law of India (4th ed. 1993).
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ARTICLES
1) Critique of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (JJ Bill)
2)http://articles.latimes.com/keyword/juvenile-justice
3) Prof. Ved Kumari on Juvenile Justice Act
4) Are Reforms Really Needed In the Juvenile Justice (Care and Protection of Children)
Amendment Act, 2000
5) Elizabeth Cauffman and Laurence Steinberg, “(I‟m) maturity of Judgment in
Adolescence: Why Adolescents May Be Less Culpable Than Adults,”Behav. Sci.
Law 18:
741 at742-743 (2000)
6) Developing Statutes for Competence to Stand Trial in Juvenile Delinquency
Proceedings: A Guide for Lawmakers, 2 April 2012
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STATEMENT OF JURISDICTION
The counsels representing the petitioner have endorsed their pleadings before the hon‘ble
supreme court of Indica under article 321 of constitution of Indica in which the hon‘ble court has
the jurisdiction.
The present memorandum sets forth the facts, contentions and arguments.
1(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution
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STATEMENT OF FACTS
For the sake of brevity and convenience of the hon‘ble court the facts of the case are summarized
as follow
i. SATYA being a poor boy lives in city of GOLIA in Maharaja Pradesh, due to his poor
economic conditions he had to leave his school and hence he started to work at MR.
RAJAN‘S house who belongs to schedule caste.
ii. At MR.RAJAN‘S house S\SATYA use to do all the household work, it has been six years
since SATYA‘S employment. Besides this MR. RAJAN also has two kid one boy named
VANSH of 18 years and one daughter named VANI of 16 years.
iii. VANSH and VANI always use to behave rudely with SATYA and their behavior towards
SATYA was condescending even they also use to insult him occasionally. SATYA also
had complained the same to MR. RAJAN several times but he never paid attention to
SATYA‘S complain.
iv. SASHI another boy aged 11 years son of MR. SAXENA was playing football in the
ground where VANSH and VANI were doing their daily routine of jogging. While
playing soccer SASHI‘S ball got hit with VANI‘S head as result of which she had small
head injury. But as a consequence of these VANSH and SASHI had quarrel between
them which was then sorted by MR. MEHTA a resident of the society.
v. VANSH and SASHI were already having grievances with each other since childhood and
SASHI was also were well aware about the fact that VANSH, VANI and SATYA do not
share a good sort of relationship with each other.
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vi. Once VANSH asked SATYA to bring something from market which SATYA failed to
brought as the thing ordered by VANSH was not available in the market but still VANSH
abused SATYA. On such another occasion VANSH was abusing SATYA in the corridor
of society and this was witnessed by SASHI who standing there only. After VANSH and
SATYA were done SASHI went to SATYA and spoke about the same thing with
SATYA and discussed as how they share the feeling of hatred towards VANSH and
VANI.
vii. On 5th of March 2016 SATYA asked MR. RAJAN to grant him leave for 3 days as he
wanted to go to his village, on the very next day that is 6th of March MR.RAJAN also left
for his business meeting which was in another city. As it was a Sunday hence
MRS.RAJNI wife of MR.RAJAN decided to take children to an art exhibition. SATYA
was already having the knowledge about the aforesaid plan.
viii. At 6:30pm on 6th March MRS. RAJNI along with her children reached the venue of the
exhibition which was located at the outskirts of the city. As the organizers of the
exhibition were good friends of MRS. RAJNI hence she became busy talking to them
meanwhile at 8:30pm VANSH came to know that VANI was missing hence they stated
to search VANI. At around 10:00pm one of the guard went to the basement to switch off
the lights where he found a girl lying unconscious on the ground he informed the family
and she was identified as VANI after that they brought VANI back home.
ix. The next morning MR. RAJAN also came back where VANI narrated him the whole
story that she was taken to the basement area by SATYA and SASHI where they,
outraged her modesty by tearing off her clothes. She stated that she was also subjected to
rape. When she shouted for help her mouth was forcefully shut and in a sudden haste she
was strangled and then she became unconscious. And then the boys ran away.
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x. On the next that is 7th of Marcha fir was being registered to the nearest police station
against SATYA and SASHI they both were charged under various sections under.
1) The INDIAN penal code
2) The protection of children from sexual offence act 2012 no.32 of 2012
3) The schedule cast and schedule tribe amendment act 2015 (no.1 of 2016).
xi. On 8th of March the investigating officer arrested SATYA and SASHI and the case went
to the juvenile justice board as both were minor. A preliminary assessment was about to
be made under section 15 of the juvenile justice board as both were minor and hence it
could be decided that whether the case can be heard by the district and session‘s court or
it will be decided by the juvenile justice board.
xii. As there was a huge media coverage and moreover the family of MR. RAJAN was very
influenceal hence SATYA and SASHI both thought that there case might go to the
district and sessions court and hence they decided to challenge the constitutional validity
of the section 15 of juvenile justice act 2015(2 of 2016) before supreme court of Indicia.
xiii. As SATYA and SASHI were minor and were victims of continues harassment by MR.
RAJAN specifically by VANSH and VANI hence they challenged the constitutional
validity of section 15 of juvenile justice act 2015.
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STATEMENT OF ISSUES
ON MAINTAINABILITY
I. THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE
BEFORE THE HON‟BLE SUPREME COURT OF INDIA.
ON MERITS
II. WHETHER SECTION 15 OF JUVENILE JUSTICE ACT VOLIATE
BASIC STRUCTURE OF INDIAN CONSTITUTION?
a) THE IMPUGNED AMENDMENT VIOLATES ARTICLE 14 OF THE
CONSTITUTION.
b)IMPUGNED AMENDMENT VIOLATES ARTICLE 15(3) OF THE
CONSTITUTION.
c) CLASSIFICATION LACKS INTELLEGIBLE DIFFERENCIA.
III.WHETHER THE SECTION IS IN CONTRAVENTION TO UNITED
NATION CONVENTION ON RIGHTS OF CHILDREN?
IV.WHEATHER THE LEGISLATION IS CORRECT TO DECIDE THE AGE 16-
18?
a) STUDY OF BRAIN CELL.
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SUMMARY OF ARGUMENTS
ON MAINTAINABILITY
I. THE WRIT PETITION IN THE PRESENT CASE IS MAINTAINABLE BEFORE THE
HON‘BLE SUPREME COURT OF INDIA.
The petitioner, Society for Equality has litigation competence to submit the writ petition before
Supreme Court of India. Further, Article 32 of the Constitution of India gives power to the
Supreme Court of India to entertain the writ petition.
ON MERITS
II. THE SECTION 15 OF JUVENILE JUSTICE ACT 2015 VIOLATES THE BASIC
STRUCTURE OF THE CONSTITUTION
The Juvenile justice act 2015 allows children between 16 and 18 years alleged to have
committed heinous offences to be tried and sentenced as adults. While it does not expressly
lower the age of a child in conflict with law from 18 to 16 years, the effect is the same, as the
Bill proposes that children above 16 years can be tried and treated as adults. It thus completely
destroys the rehabilitative foundation of the existing juvenile justice system in India by adopting
a retributive approach for heinous crimes committed by children in this age group. In its Two
Hundred Sixty-Fourth Report, the Department-Related Parliamentary Standing Committee on
Human Resource Development on The Juvenile Justice (Care and Protection of Children) Bill,
2014 concluded in para 3.21 that ―the existing juvenile system is not only reformative and
rehabilitative in nature but also recognizes the fact that 16-18 years is an extremely sensitive and
critical age requiring greater protection2. Also it lacks in classification of intelligibledifferentia,
‗Preliminary assessment‘ by the Juvenile Justice Board violates the test of procedural fairness
under the Constitution
2Critique of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (JJ Bill)
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Hence, there is no need to subject them to different or adult judicial system as it will go against
Articles 14 and 15(3) of the Constitution.‖ This recommendation has been entirely ignored.
III. the Section is in contravention to United Nations convention for Child Rights
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WRITTEN PLEADINGS
1) Whether the honorable Supreme Court can entertain the present case?
Article 323 provides right to move the Supreme Court , acting in a bona fide manner, in
case of violation of fundamental right, for the benefit of the society at large. The
Amendment Act in question is violative of the basic structure of the constitution and the
right to equality ensured as a fundamental right under Articles 14 of the constitution4.
Thus in the present case, by virtue of power conferred under Article 32 of the constitution
Supreme Court has jurisdiction to entertain the present writ .
The Counsel humbly submits that in Romesh Thappar5, the Supreme Court ruled that such
a petition can come straight to the Supreme Court without going to the High Court first.
The Court stated that unlike Art. 226, Art. 32 confers a Fundamental Right on the
individual and imposes an obligation on the Supreme Court which it must discharge when
a person complains of infringement of a Fundamental Right. Art. 32 provides a guaranteed
remedy for the enforcement of the Fundamental Rights and constitutes the Supreme Court
as the ―guarantor and protector of Fundamental Rights.‖ This proposition has been
reiterated by the Supreme Court in a number of cases.
332. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution
4 Tehseen poonawalla v union of india
5Romesh Thappar vs The State Of Madras 1950 AIR 124, 1950 SCR 594
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The Section 15 of JUVENILE JUSTICE (CARE AND PROTECTION )ACT 2015 is
unconstitutional and should be declared as void.
2) Whether the section 15 of juvenile justice act violates the basic structure of the
constitution of India?
It is most humbly submitted before this honorable court that the amendment being made in the
section 15 of the juvenile justice act violates the article 14 of the constitution of indica as article
14 of the constitution states the right to equality before the law but the amendment the grounds
of being unreasonable, arbitrary and hence, in violation of Article 14 of the Constitution.
2.1) THE IMPUNGED VIOLATES ARTICLE 14 OF THE CONSTITUTION
The concept of equality and equal protection of laws guaranteed by Article 14 in its
spectrum
Encompasses social and economic justice in a political democracy6. Implicit in the
concept
Of equality is the concept that persons who are in fact unequally circumstanced7 cannot be
Cannot be treated as par and equal as unequal‘s8. The principle guiding Article 14 is that there
should not be discrimination between onePerson and another if as regards the subject matter of
6 Dalmia Cement (Bharat) Ltd. v. Union of India, (1996) 10 SCC 104
7 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
8 State of Punjab v. Balkaran Singh, (2006) 8 SCC 481, 655
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the legislation their position is theSame, or in other words, action must not be arbitrary but must
be based on some valid.The guarantee of equality before the law is an aspect of what Dicey calls
the Rule OF Law in England. It means that no man is above the law and that every person
whatever be his rank or condition is subject to the jurisdiction of ordinary courts.
Rule of law require that no person shall be subjected to harsh, uncivilized or discriminatory
treatment even when the object is the securing of the paramount exigencies of law and order
The Bill requires the JJB to arbitrarily assess culpability prior to even an establishment of guilt.
This assessment is in essence a sentencing decision that is arrived at even before the guilt is
established. This is in complete violation of the presumption of innocence - a central tenet of the
juvenile justice as well as the criminal justice system. Further, accurate assessment of
„mental
Capacity‟ is impossible and will inevitably lead to arbitrary transfers. The Bill
assumes that
An accurate assessment of mental capacity/maturity for the purpose of transfer is possible when
this is in fact not true. Latest research shows that individualized assessments of adolescent
mental capacity is not possible and the suggestion that it can be done would mean ―exceeding
the
limits of science‖. Evaluation of mental capacity is a complex process which cannot be done
accurately by the JJB even with the help of experienced psychologists. Such assessments will be
fraught with errors and arbitrariness and will allow inherent biases to determine which child is
transferred to an adult court. When psycho-social maturity or mental capacity cannot be
measured or assessed accurately, it will be a travesty of justice if children alleged to be in
conflict with the law are transferred to an adult criminal court and ultimately sent to an
adult prison based on such a flawed assessment. 9
9Bonnie & Scott, ‗The Teenage Brain: Adolescent Research and the Law‘, Current Directions in Psychological
Science, 22(2) 158–161 (2013), p.161.
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Principle which itself must not be irrational or discriminatory.The principle of
reasonableness and rationality which is legally as well as philosophically an essential
element of equality or non-arbitrariness is projected by Art. 14 and it must characterize
every State action, whether it be under authority of law or in exercise of executive power
without making of law. The State cannot, therefore, act arbitrarily in entering into
relationship, contractual or otherwise with a third party, but its action must conform to
some standard or norm which is rational and non-discriminatory. In Ramana Dayaram
Shetty Vs International Airport Authority Of India And Others (1979 AIR(SC) 1628 ) the
expression ―arbitrarily‖ means: in an unreasonable manner, as fixed or done capriciously
or at pleasure, without adequate determining principle, not founded in the nature of things,
non-rational, not done or acting according to reason or judgment, depending on the will
alone. In M/S SHARMA TRANSPORT REP.BY SHRI D.P.SHARMA Vs. GOVERNMENT
OF A.P. & ORS.(AIR 2002 SC 322
2.2) IMPUGNED AMENDMENT VIOLATES ARTICLE 15 (3) OF THE
CONSTITUTION
It is further submitted that the impugned Act is in violation of Article 15(3) of the
Constitution of India. It is submitted that the stated object of the Act is for the welfare of
Children, however, the amendment passed makes the legislation draconian and against the idea
of welfare of children. It is submitted that the idea behind treating a certain age group as children
is to protect the most vulnerable section of the society. In case a crime is committed by the
children,theendeavor of the state should be reformative rather than punitive or worse retributive.
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The Juvenile Justice Board (JJB), a multi-disciplinary body meant to dispose matters in the best
interest of the child, is now empowered to re-criminalize the child.10
The law of juvenile justice stands on the principles of restorative justice and any digression from
the same would be detrimental to the right of the children and in contravention with the principle
as enunciated under Article 15(3) of the Constitution. It is respectfully submitted that the
impugned Act seeksTo punish the child in conflict with law for the failure of the
Society at large in providing the child with adequate care andProtection
2.3) Classification Lacks Intelligible Differentia
Article 14 forbids class legislation but does not forbid reasonable classification for the
Purpose of legislation. I t is submitted that the impugned Act seeks to create aFictional
classification between the children belonging to ageGroup of 16-18 years on the basis of
degree of crime "allegedly"Committed by them the correct position will be that class
legislation is permissible if theClassification on which it is based is rational and has a
nexus with the object sought to beAchieved. Mere classification is not enough to get over
the inhibition of this Article. TheClassification must be rational. The differentia which is
the basis of classification and theObject of the Act are distinct things and what is
necessary is that there must be a nexus between them. The legislation is given the utmost
latitude in making the classification and it is only when there is a palpable abuse of power
and the differences made have no rationalRelation to the objectives that judicial
interference becomes necessary. Every State action must be informed by reason and it
follows that an act uninformed by reason is per se arbitrary
10 Developing
Statutes for Competence to Stand Trial in Juvenile Delinquency Proceedings: A Guide for
Lawmakers, 2 April 2012
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The Preamble to the JJ Bill, 2014 states that it seeks ―to consolidate and amend the law relating
to children alleged and found to be in conflict with law and children in need of care and
protection by catering to their basic needs through proper care, protection, development,
treatment, social re-integration, by adopting a child-friendly approach in the adjudication and
disposal of matters in the best interest of children and for their rehabilitation through processes
provided, and institutions and bodies established.‖ None of these objectives can be met by
sending children alleged and found to be in conflict with the law to ‗places of safety‘ and/or an
adult criminal justice system.
Transfer will deprive these juveniles not only of protection and treatment and would amount to
sentencing them to physical and sexual abuse by adult under-trials and convicts and leaving them
with no option but to pursue a career in crime11.
3) Whether the amendment is in contravention of the United Nations convection?
The humble Petitioner submits that the impugnedAmendment is against the UN
Convention on the Rights ofThe Child which is a comprehensive, internationally binding
Agreement on the rights of children (hereinafter referred to as"The UNCRC"), which was
adopted by the United NationsGeneral Assembly in 1989. The definition of child as
envisagedIn Article-1 states;―For the purposes of the present Convention, a child means
Every human being below the age of eighteen years unlessunder the law applicable to the
child, majority is attainedEarlier."
The object clause of the present amendment states thus;
Critique of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (JJ Bill)
11
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"AND WHEREAS, the Government of India has acceded on the11th December, 1992 to
the Convention on the Rights of theChild, adopted by the General Assembly of United
Nations,Which has prescribed a set of standards to be adhered to by allState parties in
securing the best interest of child;"
The Petitioner submits that the mention of UNCRC in theObjective of the impugned
amendment is a mere eye wash asthe amendment seeks to erode the very definition of
child asEnvisaged in the UNCRC.
The Petitioner further submits that section 16 of the ActOf 2000 (the existing Act) had a
specific provision to deal withChildren between 16-18 years who had committed serious
Offences which was well within the existing juvenile systemand that there was no need to
push juvenile offenders intoAdult criminal system.
The Petitioner submits that our country accepts the international convention of keeping 18
years as the age of the child
And the same is reflected in various laws. Where the age of child was kept at 18 years
such as Contract Act, Motor Vehicles Act, etc.
It is submitted that the Amended Act provides that theChild alleged to have a committed a
heinous crime and isFound mentally and physically capable of committing the same
And understanding the implication of his act will be tried inThe Children Court,
established under the Commissions forProtection of Child Rights Act, 2005 or a Special
Court under The Protection of Children from Sexual Offences Act, 2012,
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Wherever existing and where such courts have not beendesignated, the Court of Sessions
having jurisdiction to tryOffences under the Act.
. These rehabilitative dispositions included admonition, community service, imposition of
a fine, probation, group counselling and an extreme measure of
Deprivation of liberty by way of placement of the child in a special home for three years.
These alternatives were in absolute compliance with UN Convention on the rights of the
Child. In the impugned legislation, however, the Juvenile Justice Board, a body meant to
dispose cases in the best interest of children, is being obligated to decide whether a
Child should be pushed into the adult system on the basis of a preliminary inquiry. The
Petitioner submits that it is highly arbitrary inquiry violating several rights under the
Constitution as well as the UNCRC.
Data already shows that more than half the children apprehended for offences come from
families with an annual income of less than Rs. 25,000 while only 0.55% of the children
apprehended come from families with an annual income of more than Rs. 3,00,000.12
Undoubtedly, the provisions of the JJ Bill will result in class, caste and religion-based targeting
of children under the garb of assessing their potential contribution to society and extent of
reformation. Such discrimination is also contrary to Article 2 of the legally binding UN
Convention on the Rights of the Child which prohibits discrimination of any kind, including
religion, property and other status
12Crime in India, 2013, Compendium, National Crime Records Bureau (2014), pg. 4. Available at
http://ncrb.gov.in/CD-CII2013/compendium%202013.pdf
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4) Whether the legislation is correct to decide the age of 16-18?
The legislation has failed to study various scientific as well as philosophical basis before
deciding the age 16 -18
4.1 Study of brain cells
The Petitioner herein submits that the brain of the teenager is not completely developed
and he/ she is incapable of fully understanding the consequences of his actions or
omissions. It is submitted that in 2007, a study conducted at the National Institute of
Mental Health (NIMH), U.S., scanned the brains of nearly 1,000 healthy children between
ages 3 and 18. Child and adolescent psychiatrist Jay Geed, who conducted the Magnetic
Resonance Imaging (MRI) scans and followed the actual physical changes in the
adolescent brain,
Believes that brain maturation peaks around the age of 25. In a 2005 paper on
―Adolescence, Brain Development and Legal Culpability‖, Dr. Geed was quoted as
saying, ―Part of the brain that is helping organization, planning and strategizing is not
Done being built yet… It‘s sort of unfair to expect [adolescents] to have adult levels of
organizational skills or decision-making before their brain is finished being built.‖
According to available neuro-scientific data, the frontal lobe, especially the prefrontal cortex, is
among the last parts of the brain to fully mature. The frontal lobes are responsible for impulse
control, in charge of decision-making, judgment and emotions — and therefore crucial when
fixing ―culpability‖ in the case of juvenile delinquency. Further, we now know conclusively
that
teenagers tend to be impulsive and prone to mood swings because the limbic system — which
processes emotions — is still developing. The finding herein has been affirmed in a research
paper titled Cruel and Unusual Punishment: The Juvenile Death Penalty Adolescence, Brain
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Development and Legal Culpability published by the Juvenile Justice Centre of the American
Bar Association.
In Sheela Barse v. Union of India16, the Supreme Court observed: ―Even where children are
accused of offences, they must not be kept in jails. It is no answer on the part of the State to say
That it has not got enough number of remand homes or observation homes or other places where
children can be kept and that is why they are lodged in jails.
It is also no answer on the part of the State to urge that the ward in the jail where the children are
kept in separate from the ward in which the other prisoners are detained. It is the atmosphere of
the jail which has a highly injurious.
Effect on the mind of the child, estranging him from the society and breeding in him aversion
bordering on hatred against a system which keeps him in jail
Research in developmental psychology explains the difference in cognitive capacity and
psychosocial maturity between children including adolescents and adults that influence their
decision-making in anti-social situations.13Whether the juvenile understood the consequences of
the offence or whether he or she had the mental and physical capacity to commit the offence is a
narrow and non-holistic approach to respond to serious/heinous crimes. It fails to take into
account the ongoing process of development and its impact on children, especially adolescents.
13
2Elizabeth Cauffman and Laurence Steinberg, ―(I‘m) maturity of Judgment in Adolescence: Why Adolescents
May
Be Less Culpable than Adults,‖Behav. Sci. Law 18: 741 at742-743 (2000)
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According to Andrew Von Hirsch, Honorary Professor of Penal Theory and Penal Law at
Cambridge University, ―[y]young adolescents, the reasoning must be, cannot reasonably be
expected to have a fully-fledged comprehension of what people‘s basic interests are and how
typical crimes affect those interests – because achieving this kind of understanding is a
Developmental process. Developing that understanding calls both for cognitive skills and
capacity for moral reasoning which develop over time – and does so precisely during the period
of adolescence…‖3 While the cognitive levels of a 16 or 17 year old may match that of an adult,
findings show that they lack psychosocial maturity levels as compared to adults.4 Adolescents
are more prone to peer. Further, The Child shall be forced to face trial which will have negative
Effect on the psychology of the child. Under the existing law, if a child, in conflict with law,
between the ages of 16-18 years was found to have committed an offence by the Juvenile Justice
Board, there was a range of rehabilitative dispositions that could be passed by the Juvenile
Justice Board
.
PG NO.28
Lex Auctor B. Parmeshwar Dayal National Moot Court Competition - 2016
MEMORANDUM FOR THE PETITIONER
PRAYER FOR RELIEF
IN THE LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES
CITED ABOVE, THE PETITIONER HUMBLY REQUESTS THE HON‟BLE SUPREME
COURT OF INDIA, TO ADMIT THE WRIT PETITION, AND IN SO DOING,
ADJUDGE AND DECLARE THAT:
I. THE JUVENILE JUSTICE ACT (CARE AND PROTECTION ACT) ACT, 2015 IS
UNCONSTITUTIONAL BEING INTER-ALIA VIOLATIVE OF THE BASIC STRUCTURE
OF THE CONSTITUTION, THE PRINCIPLES OF EQUALITY ENSHRINED IN THE
PREAMBLE OF THE CONSTITUTION..
AND PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT IT MAY DEEM
FIT IN THE BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD
CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL DUTY BOUND FOREVER
PRAY.
SD/-
COUNSELS FOR THE PETITIONER
PG NO.29
Lex Auctor B. Parmeshwar Dayal National Moot Court Competition - 2016
MEMORANDUM FOR THE PETITIONER
PG NO.30
Lex Auctor B. Parmeshwar Dayal National Moot Court Competition - 2016

MEMORANDUM FOR THE PETITIONER


HIGH COURT OF KARNATAKA

PUNEET S S/O SOMASHEKAR


V/S
STATE OF KARNATAKA REP BY CIRCLE INSPECTOR OF
POLICE MULBAGIL POLICE STATION

Date of Decision: 23 September 2019

Citation: 2019 LawSuit(Kar) 2817

Hon'ble Judges: K N Phaneendra

Case Type: Criminal Appeal

Case No: 1597 of 2018

Subject: Criminal

Acts Referred:
INDIAN PENAL CODE, 1860 SEC 376, SEC 366A
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
SEC 6
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2015 SEC 14, SEC 34, SEC 15, SEC 15(2), SEC 9, SEC 18, SEC
18(3)

Final Decision: Appeal allowed

Advocates: Veeranna G Tigadi, Honnappa

Judgement Text:-

K N Phaneendra, J
[1] The present appeal is preferred against the order passed by the
II Addl. District and Sessions Judge, Kolar dated 08.08.2018 under
Section 9 of the Juvenile Justice (Care and Protection of Children)
Act, 2015, (hereinafter referred to as 'JJ Act' for short).

[2] The petitioner, the sole accused is charge sheeted for the
offence punishable under Sections 366A and 376 of IPC and also
under Section 6 of the Prevention of Children from Sexual Offences
Act (hereinafter referred to as 'POCSO Act' for short).

[3] During pendency of the proceedings, an application was filed


stating that the accused was not completed the age of 18 years as
on the date of the alleged incident and he was a Juvenile as his date
of birth is 28.04.1999 and the incident happened between
21.04.2016 to 30.04.2016, alleging that the accused has kidnapped
and abducted the victim girl from Mallasandra village to Bengaluru
on his Motorcycle and he had committed sexual intercourse with her
during the above said period. The learned Sessions Judge, on
16.01.2018 has passed an order that the accused was below the
age of 18 years and above 16 years of age and if he is aware of the
consequences of the act and committed the heinous offence, then
the Sessions Court can try the appeal. Therefore, the application
filed by the accused was rejected.

[4] The said order was challenged before this Court in Criminal
Appeal No.445/2018 and this Court vide order dated 20.06.2018
has allowed the said appeal and this court has directed that the
Sessions Court has to enquire into the claim regarding the age of
the accused as to whether the matter is triable by the Juvenile
Justice Board or by this Court in view of Section 14, 15 and 18 of
the JJ Act. This Court in the said judgment at para 9 has observed
that the order of the learned Sessions Judge does not reflect proper
analysis of the circumstances and document to come to a conclusion
regarding age of the appellant-accused as to whether he was below
18 years or there was any enquiry in this connection. After the
remand, the learned Sessions Judge has passed the impugned order
dated 08.08.2018. In the said order, the learned Sessions Judge
has in fact considered the age of the boy, under the provision of
Section 34 of the JJ Act and after perusal of the Aadhaar Card and
also the Birth Certificate. Both shows that the date of birth of the
accused as 28.04.1999. Therefore, the trial Court has come to the
conclusion that, the accused has completed the age of 16 years and
he was below the age of 18 years and he was a minor as on the
date of the alleged incident.

[5] Though the learned Sessions Judge has come to the conclusion
that the accused was above the age of 16 years and below the age
of 18 years, but without referring to the provisions of Sections 15
and 18 of the JJ Act, he himself has simply stated that the accused
has committed the heinous offence and it is purely conferred on the
Special Court to decide the age u/s.34 of the JJ Act, and therefore,
the Sessions Court has got jurisdiction to proceed with the trial of
the case. Accordingly, again the said application was dismissed.
Against which order, the present appeal is preferred.

[6] Of course, the learned Sessions Judge has got ample power
u/s.34 of the JJ Act to determine the age of the Juvenile as on the
date of the incident. There is no dispute that the Sessions Judge has
enquired into the matter considering the Birth Certificate and the
Aadhaar Card, and came to a definite conclusion that the accused
was above the age of 16 years and below the age of 18 years. But
without referring to Sections 15 & 18 of the Act, the provisions are
mechanically mentioned in the order. Further, the learned Sessions
Judge has not even cared to look into meticulously the contents of
the said provisions. Only on the ground that, the offence is heinous
in nature, the Sessions Judge has got power to proceed with the
Trial.

[7] In this background, it is just and necessary for this court to


have the meticulous look at Sections 15 and 18 of the JJ Act to
consider whether the Sessions Judge has got any power to pass
such an order holding that the offence is heinous in nature and that
the accused can be tried by the Sessions Court itself.

[8] Sections 15 and 18 of the JJ Act have to be extracted for proper


analysis with reference to the facts of this case. The above said
provisions reads thus: -
"Section 15.- Preliminary assessment into heinous offences by
board- (1) In 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, ability to understand the consequences of the offence and
the circumustances in which he allegedly committed the offence,
and may pass an order in accordance with the provisions of
subsection (3) of Section 18:

Provided that for such an assessment, the Board may take the
assistance of experienced psychologists or psycho-social workers or
other experts.

Explanation. For the purposes of this section, it is clarified that


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

(2) Where the Board is satisfied on preliminary assessment that the


matter should be disposed of by the Board, then the Board shall
follow the procedure, as far as may be, for trial in summons case
under the Code of Criminal Procedure, 1973 (2 of 1974):

Provided that the order of the Board to dispose of the matter shall
be appealable under sub-section (2) of Section 101:

Provided further that the assessment under this section shall be


completed within the period specified in Section 14.

Section 18- Orders regarding child found to be in conflict with law-


(1) Where a Board is satisfied on inquiry that a child irrespective of
age has committed a petty offence, or a serious offence, or a child
below the age of sixteen years has committed a heinous offence,
then, notwithstanding anything contrary contained in any other law
for the time being in force, and based on the nature of offence,
specific need for supervision or intervention, circumstances as
brought out in the social investigation report and past conduct of
the child, the Board may, if it so thinks fit,
Xxxxxxxxxx

xxxxxxxxxx

(3) Where the Board after preliminary assessment under Section 15


pass an order that there is a need for trial of the said child as an
adult, then the Board may order transfer of the trial of the case to
the Children's Court having jurisdiction to try such offences."

[9] Section 15 of the JJ Act is a procedure to conduct a Preliminary


assessment to consider this type of heinous offence. The said
provision specifically says that if the offence is heinous in nature
and the accused person has completed the age of 16 years and if he
is below the age of 18 years, the Board shall conduct a preliminary
assessment with regard to the mental and physical capacity to
commit such offence, and also the ability to understand the
consequences of the offence and the circumstances in which, he
allegedly committed the offence and thereafter, the Board can pass
appropriate orders under sub section (2) of section 15 or under sub
section (3) of Section 18 of the JJ Act.

[10] For the purpose of analyzing and coming to a conclusion to


pass order u/s.15 of the JJ Act, the Board has got ample power to
take the assistance of an experienced psychologists or Psycho-social
workers or other experts. It is also made clear that, if the Board is
satisfied on the preliminary assessment and arrived at a conclusion
that the Board itself can dispose of the case by following the
procedure to try the accused before the Board itself as
contemplated under the provisions of the Cr.PC. and the JJ Act. In
such on eventuality, the Board shall not send the Juvenile to the
Sessions Court for trial. Therefore, it is crystal clear that such power
is exclusively vested with the Board to pass such an order. The main
object of Section 15 is to ascertain and assess the total capacity of
the accused on the basis of the facts and on the basis of the
expert's opinion if necessary as contemplated under the said
provisions. It is not a mechanical power entrusted to the Board. It
should also be borne in mind that mere using of the words that "the
accused is mentally and physically capable of committing such an
offence and ability to understand the consequences and also the
circumstances existed to establish the above said factors", but, the
Board has to in detail examine with reference to the surrounding
circumstances and if necessary after taking expert's opinion has to
reason out, why the Board is coming to such a conclusion. But, this
has not been taken care of by the learned Sessions Judge while
passing the impugned order.

[11] Be that as it may, as could be seen from the above said


provision, the learned Sessions Judge or the Special Judge or the
Child Friendly Court, presided over by the learned Sessions Judge
have absolutely no power to pass any order u/s.15 of the Act. It is
the statutory power vested with the Board. This has completely lost
the sight of the Sessions Judge as could be seen from the order
itself.

[12] Once the Board comes to the conclusion that the Board has
got jurisdiction then the Board shall follow the procedure as
contemplated u/s.15 of the JJ Act and to proceed with the trial
against the accused. If the Board come to the conclusion otherwise
than the above, and after inquiry, the Board is of the opinion that
the accused after the preliminary inquiry as contemplated u/s.15,
feels that there is a need for trial of the child as an adult, then by
giving reasons to the effect that the accused/juvenile is between the
age of 16 and 18 years, and he was mentally and physically
competent to commit such an offence and he was able to
understand the consequences of the offence and also the
circumstances in which he has committed the offence, then only the
Board shall pass order of transfer of the case to the Children's'
Court/Sessions Court having jurisdiction to try such offence, as
specified under section 18(3) of the said JJ Act.

[13] Looking from the above said angle, considering the provisions
of Sections 15 and 18 of the JJ Act, the II Addl. Sessions Judge,
Kolar, had absolutely no jurisdiction to pass order u/s.15 of the JJ
Act. The Sessions Court has not even cared to look into the
provisions of the Act, but in an over enthusiasm appears to have
passed the above said order. Under the above said circumstances,
the order is not sustainable either in law or on facts.

[14] It is also a notable point that as on the date of the offence,


the JJ Act, 2015 had already in force, vide Gazette Notification in
Extra Part II dated 1.1.2016. Therefore, all the provisions of the
2015 JJ Act, are applicable to the present facts and circumstances of
the case.

With the aforesaid observations, the Appeal is allowed. Consequently, the order
passed by the learned II Addl. District & Sessions Judge, Kolar in SC No.97/2016
dated 8.8.2018 is hereby set aside. The learned Sessions Judge is hereby directed to
refer the matter to the Juvenile Justice Board to pass appropriate order u/s.15 and
18 of the Juvenile Justice (Care and Protection of Children) Act

HIGH COURT OF ALLAHABAD

RADHIKA (JUVENILE); HIMANSHU ALIAS DABBU; AMAN;


RAJU ALIAS RAJ KUMAR ; AQIL (JUVENILE); PRINCE @
ADITYA TIWARI
V/S
STATE OF U P AND ANOTHER

Date of Decision: 05 August 2019

Citation: 2019 LawSuit(All) 1312

Hon'ble Judges: Rahul Chaturvedi

Case Type: Criminal Appeal; Criminal Miscellaneous Bail Application

Case No: 4418 of 2019, 4420 of 2019, 4518 of 2019, 4467 of


2019, 2702 of 2019; 38818 of 2018

Subject: Criminal

Acts Referred:
INDIAN PENAL CODE, 1860 SEC 201, SEC 304B, SEC 148, SEC 34,
SEC 147, SEC 302, SEC 376D, SEC 354, SEC 498A, SEC 377, SEC
411, SEC 506, SEC 394
CODE OF CRIMINAL PROCEDURE, 1973 SEC 439
DOWRY PROHIBITION ACT, 1961 SEC 4, SEC 3
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
SEC 6, SEC 5, SEC 4, SEC 3
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2015 SEC 12(1), SEC 21, SEC 2(33), SEC 15, SEC 101(1), SEC 102,
SEC 15(1), SEC 2(12), SEC 8, SEC 2(28), SEC 12(4), SEC 2(20),
SEC 18(3), SEC 12, SEC 101(5)

Final Decision: Appeal dismissed

Advocates: Gaurav Tripathi, Anurag Vajpeyi, Amit Mishra, Ram Jee


Saxena, Raghuvansh Chandra, Bhanu Prakash Verma, Pankaj
Satsangi, Kamal Kishor Mishra, Sanjay Chaturvedi, Dharmendra
Singhal, Shivendra Raj Singhal, Kameshwar Singh, Nilam Shukla,
Vimlendu Tripathi

Judgement Text:-

Rahul Chaturvedi, J

[1] Heard Sri Dharmendra Singhal, learned Senior Counsel, S/Sri


Sanjay Chaturvedi, Amit Mishra, Gaurav Tripathi, Pankaj Satsangi,
B.P. Verma, Ramji Saxena and Kamal Kishor Mishra, learned
counsel for the appellants in all the connected matters and Sri
Satendra Kumar, Phool Chand and Faraz Kazmi, learned counsel for
the State at length.

[2] Questions of law recurring in all the aforesaid appeals are as


under:-

(i) As to whether the aforesaid appeals filed under Section 101(5) of


Juvenile Justice (Care and Protection of Children) Act, 2015
(hereinafter referred to as 'Act') is an appropriate remedy for the
appellants after getting their respective bail applications rejected by
Children Court/Special Sessions Judge POCSO Act ?
(ii) Ancillary to the aforementioned prime question, the court is also
posed with yet another serious legal question that while deciding
the application of a juvenile between the age group of 16-18 years,
the seriousness, gravity of the offence and their respective role in
commission of crime, would also be a determinable factor while
releasing them on the proceedings opted by them ?

[3] Since the malady of all these appeals arose out the fact that the
concerned learned Additional Session Judge (POCSO Act) has
rejected the bail applications of the concerned juveniles. Therefore,
aggrieved by those bail rejection orders, all the delinquent
juveniles/appellants have filed their respective appeals before this
Court in exercise of power U/s 101(5) of the Act, which reads thus:

"101(5) - Any person aggrieved by an order of the Children's Court


may file an appeal before the High Court in accordance with the
procedure specified in the Code of Criminal Procedure, 1973 (2 of
1974)."

[4] Since common question of law is involved with regard to


maintainability of these appeals U/s 101(5) of the Act before this
Court, hence, for the sake of brevity, all the aforesaid appeals are
being adjudicated and decided by the following common judgment.

[5] Before coming to the legal aspect of the issue, it is imperative


to spell out the brief facts of every appeal to appreciate the
controversy involved in its correct perspective.

FACTS OF THE RESPECTIVE APPEALS

(a) APPEAL No. 4418 of 2019

Radhika (Juvenile)

The instant appeal has been filed against the order dated
12.06.2019 passed by Additional Sessions Judge/FTC Court, Etawah
while rejecting the Bail Application no. 1096/2018-19 arising out of
Case Crime No. 223/2018 U/s 498A, 304B I.P.C. and U/s 3/4 D.P.
Act, Police Station Chaubiya District Etawah. The appellant Radhika
is one of the named accused of the FIR lodged by Rakesh Kumar for
the alleged act of bride burning of Ms. Jyoti. The deceased was
married just 6 months back and in her dying declaration, she has
attributed the role of pouring kerosene oil on her to the appellant
when she was alive and as per the opinion of the doctor she took
her last breath on account of 95% burn injuries. After holding an
extensive investigation, the police has submitted charge sheet U/s
498A, 304B I.P.C. and U/s 3/4 Dowry Prohibition Act against all the
named accused persons including the appellant Ms. Jyoti.

Since the appellant claims juvenility and after holding a preliminary


assessment in this regard, her case was segregated as a juvenile
and Juvenile Justice Board, Etawah vide its order dated 22.2.19
pursuant to Section 15(1) of the Juvenile Justice Act, 2015 have
adjudicated after assessing her age related document that the
alleged delinquent offender is above 16 years of the age at the time
of incident and according to preliminary assessment with regard to
her mental and physical capacity, she was quite intelligent and has
sufficient ability to understand the far reaching consequences of her
conduct in commission of crime (Assessment order by the Board
dated 22.2.19/Annexure No. 14 to the affidavit). After holding the
assessment, the Board has passed an order that there is need of
trial of said child as an adult and transferred the case to Children
Court/Special Judge, POCSO Act, Etawah, where bail application was
moved on behalf of the appellant and the same was rejected by
Special Judge, POCSO Act, Etawah. Hence the appeal U/s 101(5) of
Juvenile Justice Act,2015 before this Court.

(b) APPEAL NO. 4420 OF 2019

(Himanshu Alias Dabbu)

Instant appeal was filed against order dated 16.05.2019 whereby


the Incharge Special Judge, POCSO Act, Kanpur Nagar has rejected
the bail application No. 1288/2019 arising out of Case Crime No.
46/2019 U/s 394, 411 I.P.C. Police Station Bithoor, District Kanpur
Nagar. An FIR was registered by one Anurag Yadav against 3
unknown persons for the alleged robbery of Rs. 4.45 lacs and during
investigation, the complicity of the appellant was surfaced in the
commission of offence.
The appellant claimed juvenility. The Juvenile Justice Board after
assessing his age related documents/High School Certificate, 2016
in which his date of birth is 15.04.2001 and thus on the date of
incident dated 03.02.2019 he was above 16 years (17 years, 9
months and 16 days to be precise) and has declared juvenile and
the Board after conducing his preliminary assessment, as per
provision of Section 15(1) of the Act, he understands the
consequences of his offence remitted the case to Children's
Court/Special Judge, POCSO Act pursuant to Section 18(3) of
Juvenile Justice Board having jurisdiction to try such delinquent
offender as an adult. The appellant Himanshu @ Dabbu has moved
bail application before the court concern and the learned Special
Judge has rejected the bail vide order dated 16.5.2019. Hence this
appeal U/s 101(5) of Juvenile Justice Act.

(c) APPEAL NO. 4467 OF 2019

(Raju Alias Raj Kumar)

Present appeal has been filed against the bail rejection order dated
21.06.2019 whereby Special Judge, POCSO Act has rejected the bail
application of the appellant bearing No. 1735/2019 arising out of
Case Crime No. 313/2018 U/s 147, 302, 201, 34 I.P.C. Police
Station Shergarh, District Mathura. The FIR came into existence by
one Shri Makhan, who lodged the present FIR on 23.09.2018 for the
incident said to have taken place on 18.09.2018 naming as many as
7 persons including the appellant. Contended by the counsel that
the case hinges upon last scene and circumstantial evidence.

The appellant claimes juvenility and the Juvenile Justice Board


Mathura vide order dated 22.05.2019 after threshing his document
and other material on record, has hold that the age of delinquent on
the date of incident was 17 years, 7 months and 8 days. Thereafter,
the Board in his preliminary assessment, pursuant to the mandate
of Section 15 of the Act, vide order dated 29.05.2019 has
mentioned that since the delinquent is 16(+) years of age, he
understands the consequences of his conduct and should be tried
like an adult and thus remitted the matter to the Children
Court/Special Court POCSO Act for the said purpose. The learned
Sessions Judge, after taking into account the assessment report by
Juvenile Justice Board and the report of the District Probation
Officer in response to his bail application has rejected it on
21.06.2019. Hence the Appeal U/s 101(5) of the Juvenile Justice
Act.

(d) APPEAL NO. 2702 OF 2019

Aqil (Juvenile)

Aggrieved by the order, rejecting the bail application no. 2019/2018


of the appellant dated 04.07.2018 whereby Addl. Sessions
Judge/Special Judge, POCSO Act, Budaun rejected the bail arising
out of Case Crime No. 304/2017 U/s 376D and Section 5/6 of
POCSO Act. The genesis of the case starts from lodging of the FIR
from one Eikta Devi (the victim herself) on 9.10.2017 for the
alleged incident of gang rape upon her by Wahid, Aqil (the
appellant) and Latoori. In this incident the accused/appellant
intercepted her and thereafter stuffing her mouth, committed gang
rape upon her one by one. In 161 and 164 Cr.P.C. statements, she
has attributed role of gang rape upon her by all the 3 accused
persons whereby in 164 Cr.P.C. statement, she has reiterated the
story mentioned in 161 Cr.P.C. statement.

The delinquent Aquil claimed juvenility and in the report of Juvenile


Justice Board, Budaun annexed as Annexure No.1 to the affidavit
dated 9.1.18, the board has determined his age on the date of
incident as 16 years, 3 months and 8 days (less than 18 years) and
was declared as Juvenile. Not only this, in the assessment report,
the board hold that the juvenile understands the repercussions of
his action and is quite intelligent, and thus remitted the matter to
Children Court as per the mandate of law as per Section 18(3) of
Juvenile Justice Act. It is also borne out from the bail rejection itself
that as per the report of C.M.O. Budaun, the age of prosecutrix is
barely 13 years and all the named 3 accused persons have
physically assaulted her and thereafter ravished her. The bail
application was moved and was rejected by Special Judge, POCSO
Act, Budaun. Hence the appeal U/s 101(5) of Juvenile Justice Act,
before this Court.

(e) APPEAL NO. 4518 OF 2019


(Aman)

This appeal is being filed after getting the bail application No.
2438/2019 rejected by Special Judge, POCSO Act, Meerut arising
out of Case Crime No. 787/2018 U/s 377, 506 IPC and 3/4 POCSO
Act. Kundan Singh has lodged FIR at P.S. Nauchandi Meerut against
the appellant Aman, with the allegation that Chhotu and Aman
(appellant) have committed unnatural sex/sodomy with one Harsh
on 1.2.18. The age of victim Harsh was barely 10 years.

The appellant Aman has claimed juvenility and his claim was
examined by Juvenile Justice Board who vide order dated 30.3.19
have found that on the date of incident, the delinquent was 16
years, 10 months and 4 days (less than 18 years). Bedsides this,
the Juvenile Justice Board conducted a preliminary assessment of
the delinquent in pursuant to Section 15(1) of J.J. Act and he was
put before Dr. Bhagat Singh, Psychologist, who opined that the
delinquent/juvenile is mentally mature boy and understands result
of the conduct and taking into account the Psychologist report and
report of District Probation Officer, Meerut, the records of the case
was transmitted to Children Court/Special Judge, POSCO Act,
pursuant to the mandate of late U/s 18(3) of J.J. Act to be tried as
an adult. The appellant has moved the bail application before
Special Judge, POCSO Act, Meerut and the court concern has
rejected the bail application on 07.06.2019. Hence the Appeal U/s
101(5) of the Juvenile Justice Act.

(f) CRIMINAL MISC. BAIL APPLICATION NO. 38818 of 2018

(Prince @ Aditya Tiwari)

This is the IInd. Bail Application. The earlier bail application no.
8744/2018 was rejected by this Court on 8.3.2018 with the
direction to the court for expeditious disposal of the case. However,
after getting his first bail application rejected, the applicant claims
juvenility and vide order dated 08.05.2018, relying upon his date of
birth mentioned in his High School Certificate, the Prince @ Aditya
Tiwari was declared as juvenile holding that on the date of incident,
he was aged about 17 years 2 months and 19 days, less than 18
years and was declared as juvenile, his case was sent to Juvenile
Justice Board. The report from District Probation Officer, Ballia was
sought who has given his report on 31.05.2018. The Juvenile Justice
Board vide order dated 06.07.2018 has opined that he has
committed a heinous offence in murdering a young girl in a fit of
infatuation with the deceased girl and as per the provision of
Section 18(3) of the Act, the matter was remitted to Special Judge,
POCSO Act, Ballia. The applicant is the main accused of FIR lodged
by Jitendra Kumar Dubey registered as Case Crime No. 1128/2017
U/s 147, 148, 302, 354, 506 IPC and he in the FIR has attributed
role of assault by giving a knife blow over the deceased Ragini
Dubey on her neck. It is also mentioned that the alleged blood
stained knife was recovered at his pointing out. The Bail Application
of the applicant was disposed of on 26.7.2018 by Special Judge,
POCSO Act, Ballia whereby the court has remitted back the matter
before Juvenile Justice Board, Ballia without touching the merit of
the case. Hence the IInd. bail application U/s 439 Cr.P.C.

[6] Now, the legal question surfaces out of all these appeals is, as
to what would be the forum of considering the bail of delinquent
juvenile under the scheme of the Act and what would be the factors
applied by the court below while releasing them on
bail/appeal/revision with regard to delinquent juveniles within the
age group of 16-18 years?

[7] This Court has carefully heard the submissions made by the
respective learned counsel of the respective appeals, mentioned
above, and learned A.G.A. in its rebuttal. All the counsel of the
appellants have submitted that the appellants after claiming the
juvenility, their case was remitted to Special Judge, POCSO
Act/Children Court, pursuant to the provisions of Section 15(1) of
the Act. The Juvenile Justice Board (herein after referred to as "the
Board") after having a preliminary assessment under section 15(1)
of the Act, passed an order that there is need for a trial of the child
as an adult and remitted the matter of trial of the case to the
children's Court, having jurisdiction to try such an offence.

[8] The 'Children Court' is defined in Section 2(20) of the Act :-

2(20) "Children's Court" means a court established under the


Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or
a Special Court under the Protection of Children from Sexual
Offences Act, 2012(32 of 2012), wherever existing and where such
courts have not been designated, the Court of Sessions have
jurisdiction to try offences under the Act;

[9] Since in the State of U.P. there is no Children's Court and


Special Court (POCSO Act) acts as Children Court herein, therefore,
all such matters are being heard and decided by the said Special
Judge(POCSO Act). Misconstruing the legal provisions of Section
18(3) of the Act, whereby it is directed that such child shall be
"TRIED" as an adult, hence, all the appellants moved their
respective regular bail applications before the said Special Judge,
POCSO Act, whereupon the said Special Judge rejected their
respective bail applications. Aggrieved by the said bail orders, the
present appeal U/s 101(5) of the Act have been moved before this
Court to ventilate their grievance.

[10] For scrutinizing the entire case, it is germane to spell out the
mandate of law, provided under Section 15(1), 18(3) and 101(5) of
the Act, which is being reproduced herein below: -

Section 15(1). In 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, 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 the provisions of sub-section
(3) of Section 18:

Provided that for such an assessment, the Board may take the
assistance of experienced psychologists or psycho-social workers of
other experts.

Section 18(3):- Where the Board after preliminary assessment


under Section 15 pass an order that there is a need for trial of the
said child as an adult, then the Board may order transfer of the trial
of the case to the Children's Court having jurisdiction to try such
offences.
Section 101(5): Any person aggrieved by an order of the Children's
Court may file an appeal before the High Court in accordance with
the procedure specified in the Code of Criminal Procedure, 1973 (2
of 1974).

[11] Learned counsel for the appellants, while addressing the


maintainability of the present appeals, has drawn attention of the
Court towards Section 8 of the Juvenile Justice Act for justifying the
forum of such appeals before this Court. Section 8 of the Juvenile
Justice Act speaks about powers, functions and responsibility of the
Board, which reads thus:-

Section 8(1). Notwithstanding anything contained in any other law


for the time being in force but save as otherwise expressly provided
in this Act, the Board constituted for any district shall have the
power to deal exclusively with all the proceedings under this Act,
relating to children in conflict with law, in the area of jurisdiction of
such Board.

(2) The powers conferred on the Board by or under this Act may
also be exercised by the High Court and the Children's Court, when
the proceedings come before them under Section 19 or in appeal,
revision or otherwise.

[12] And thus, learned counsel for the appellants strenuously


contended that since the Special Judge (POCSO Act) acting as
Children Court, has rejected the bail applications, hence, section
101(5) of the Act is an apt forum to decide the bail applications of
the respective appellants.

[13] This Court has carefully gone through the aforesaid provisions
of law. Section 8 of the Act speaks about function and responsibility
of the Board which has been categorically spelled out in Sub Section
8(a) to 8(n) of the Act, therefore, considering the functions and
responsibilities of the aforesaid provisions of law, the High Courts
and Children Courts have power akin to the Board in appeal or
revision. In these functions and responsibilities, there is not even a
whisper that the High Court can decide the bail application of the
appellants in exercise of powers under section 101(5) of Act, and
thus, I am afraid to accept the contentions raised by learned
counsel in this regard. Moreover, when there is specific remedy
provided under the Act itself regarding bail of delinquent juvenile,
leaving no scope of any other interpretation, one cannot be
permitted to mold it or bypass it for the sake of his convenience and
file an appeal under Section 101(5) of the Act before the High
Court.

[14] In the entire scheme of Juvenile Justice Act there is one and
only provision considering the bail of a child. The word 'Child'
defined in the Act in Section 2(12) of the Act, means a person who
has not completed 18 years of age. Therefore, as per the mandate
of the law, any child who is below 18 years of age, involved in an
offence, can take the recourse of Section 12 of the Act for getting
himself bailed out.

[15] Section 12 of the Juvenile Justice Act reads thus:-

Section 12. Bail to a person who is 'apparently a child' alleged to be


in conflict with law-

(1) When any person, who is apparently a child and is alleged to


have committed a bailable or non-bailable offence, is apprehended
or detained by the police or appears or brought before a Board,
such person shall, notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974) or in any other law for the
time being in force, be released on bail with or without surety or
placed under the supervision of a probation officer or under the care
of any fit person:

Provided that such person shall not be so released if there appears


reasonable grounds for believing that the release is likely to bring
that person into association with any known criminal or expose the
said person to moral, physical or psychological danger or the
person's release would defeat the ends of justice, and the Board
shall record the reasons for denying the bail and circumstances that
led to such a decision.

(2) When such person having been apprehended is no released on


bail under sub section (1) by the officer-in-charge of the police
station, such officer shall cause the person to be kept only in an
observation home in such manner as may be prescribed until the
person can be brought before a Board.

(3) When such person is not released on bail under sub-section (1)
by the Board, it shall make an order sending him to an observation
home or a place of safety, as the case may be, for such period
during the pendency of the inquiry regarding the person, as may be
specified in the order.

(4) When a child is conflict with law is unable to fulfill the conditions
of bail order within seven days of the bail order, such child shall be
produced before the Board for modification of the conditions of bail.

[16] Plain reading of Section 12 of the Act, speaks about bail to a


person, who is "apparently a child". Thus, a million dollar question is
as to what does this phrase 'apparently a child' connotes? Does it
mean that by perseverance of its senses, court can guage that a
particular is a child or it requires something more... The word 'child'
as mentioned above, has already been defined in Section 2(12) of
the Act, meaning thereby, a person who has not completed 18
years. Thus, on conjoint reading apparently a child means, any
person on his perseverance looks like a young lad of below 18
years, can apply for bail under section 12 of the Act. Thus, so far as
bail of a minor is concerned, there is no distinction or classification
with regard to the age group.

[17] It is explicit from the plain reading of Section 12 of the Act


that irrespective of nature and character of the crime, if a 'child'
brought by the police or appears before the Board, such child shall,
notwithstanding anything contained in Code of Criminal Procedure,
1973 or any other law enforced in time, 'shall' be released on bail
with or without surety under the supervision of Probation Officer or
under the care of any fit person. The word 'fit person' is defined
under section 2(28) of the Act, means any person prepared to owe
responsibility of a child for a specific purpose and after making due
enquiry in this behalf, the Board may give the custody of child in the
hand of 'fit person'. Thus, it is clear that the child delinquent has got
a right to be released on bail with or without surety and the gravity,
nature and depth of the offence shall not come into the way.
[18] However, in the proviso of Section 12(1) of the Act, there are
three embargoes/riders; namely; (a) if there appears reasonable
ground for believing that the release is likely to bring that person
into association with any known criminal or; (b) expose that person
as moral, physical or psychological danger or; (c) the person's
release would defeat the ends of justice, the Board shall record the
reasons for denying the bail and circumstances lead to such a
decision.

[19] From the plain reading of the above proviso, it has been
clearly borne out that (1) the juvenile delinquent has got unqualified
right to seek bail irrespective of the gravity, depth and seriousness
of the offence ; (2) his bail could be denied strictly on the three
grounds, as mentioned under the proviso of Section 12 of the Act by
the Board.

[20] In the event, if the bail application of a juvenile delinquent is


refused under Section 12 of the Act, as per scheme of the Act of
2015 its remedy lies under section 101(1) of the Act, which speaks
as under :-

101 Appeals-(1) Subject to the provisions of this Act, any person


aggrieved by an order made by the Committee or the Board under
this Act may, within thirty days from the date of such order, prefer
an appeal to the Children's Court, except for decisions by the
Committee related to Foster Care and Sponsorship. After Care for
which the appeal shall lie with the District Magistrate.

And there is provision of appeal, subject to the provision of this Act,


any person aggrieved by the Committee or the Board under this
Act, may within 30 days from the date of such order, prefers an
appeal to the court of Sessions.

[21] In the instant appeals, after getting their respective bail


applications rejected by Special Judge (POCSO Act), the appellants
straightway approached the High Court under section 101(5) of the
Act. This is not mandatory under law nor permissible under the
scheme of the Act because the appeal would lie only in the court of
Sessions and as per the provisions of Section 101(1) of the Act, the
Sessions Court are not empowered to hear the appeals after the bail
of delinquent juvenile is rejected by Special Judge(POCSO Act), who
in fact, is an officer of the rank of Additional Session Judge of the
same sessions Division.

[22] This appellate order passed by the learned Sessions Judge


could be challenged before the High Court under Section 102 of Act
whereby it has empowered High Court that either on its own motion
or an application received in this behalf, call for the record of any
proceeding in which any Committee or Board or Children's Court or
Court has passed an order for the purposes of satisfying itself as to
the legality or propriety of any such order in relation thereto as it
thinks fit.

[23] Thus, the scheme of the Act of 2015 for consideration of bail
application of delinquent juvenile clearly lays down a particular
procedure and there cannot be any justification for its deviation. In
all the appeals before consideration, after being declared juvenile,
by the Board, the delinquent offenders applied for regular bail
before Special Judge(POCSO Act) acting as Children Court, who
rejected their respective bail applications and after that all, the
appellants moved the appeals before this Court U/s 101(5) of the
Act, which is clearly violative of the scheme of the Act and cannot
be sustained.

[24] The appellants are hereby directed to approach for bail Under
Section 12 of the Act, which shall be decided by the Board within
seven days from its institution as per mandate of law under Section
12(4) of the Act.

Second aspect of the issue:-

[25] Now coming to the Second aspect of the issue; as to the


whether gravity, depth and seriousness of the offence would be
taken into account, while deciding the bail application of juvenile
delinquent under the age group of 16 to 18 years ?

[26] In order to appreciate this aspect, it is imperative to spell out


the STATEMENT OF OBJECTS AND REASONS; while legislating the
new Juvenile Justice (Care and Protection) Act, 2015;
[27] This new Act has seen the light of the day on 15th January,
2016. Prior to this Act, a Juvenile Justice (Care and Protection), Act,
2000 was in force. After the ill-famed Delhi gang-rape case,
popularly known as "Nirbhaya's Case", one of the prime accused in
the year 2012 was tried by the Juvenile Court and was sentenced
for 3 years only and that too from a Reformatory Home, which
caused tremendous amount of upheaval and resentment amongst
the masses and there was a severe disturbance in public perception
over the Act of 2000. The prime accused of the Nirbhaya's case was
few months younger than 18 years, was declared juvenile by the
Board and was sentenced, as mentioned above. Number of petitions
were filed before the Hon'ble Apex Court challenging the validity of
the Act, 2000, but all the petitions were dismissed and the Act was
held to be constitutional one. It is quite surprising that even after
much horrifying, and horrendous Nirbahya's case, we have not
budge and nudge an inch despite so many amendments made
thereafter in the Juvenile's Act and the situation seems to be the
same on date. Thereafter, on the demand of reduction of age of
juvenile from 18 to 16 years was raised but that too was struck
down by the Hon'ble Apex Court.

In a prevailing situation where rape against women is multiplying


every hour of the day, Juvenile delinquency is a matter of serious
concern and consideration which really requires contemplation and
pond ration as it is mounting up not only in developing or
underdeveloped nations but this has plagued and has trapped even
developed nations.

[28] In July 2014, Minister of Women and Child Development


Department, Union of India has admitted at the floor of the
Parliament House that the new enactment is on the cards whereby
the delinquent juveniles under the age of 16-18 years are proposed
to be tried as an adult. It was admitted by the Minister concerned
that 50% of Juvenile crimes were committed by teens, who
undertook the law in their hands, misconstruing that they would get
away with it in the garb of the aforesaid Act and this misconstruing
of law seems to be one of the reasons in increasing heinous crime
i.e. rape, committed by children between age group of 16-18 years.
According to the National Crime Record Bureau (herein after
referred to as "Bureau"), heinous crimes committed by this age
group have shockingly increased from 54% to 66% between 2003-
13. While referring to the latest statistics of the Bureau, released in
year 2017, has made a startling revelations that in the year 2016,
12,272 juveniles were convicted and 4,44,171 apprehended, out of
which 32,577 juveniles were between the age group of 16-18 years.
Thus, to plug the loop holes of the earlier enactment of 2000 and to
segregate the offenders, who are in between 16-18 years shall be
tried to be adult, taking into account their level of understanding
and mental maturity. The legislation cannot keep its eyes shut to
the fact that there was a rampant increase in the heinous offences
committed by the adolescents of the aforesaid age group. To curb
this menace, a new legislation was direly needed and in year 2016
the aforementioned Act was legislated.

[29] For the purposes of deciding the present appeals, the relevant
excerpts of the object of the enactment is quoted herein below :-

".....................3. The Juvenile Justice (Care and Protection of


Children) Act was enacted in 2000 to provide for the protection of
children. The Act was amended twice in 2006 and 2011 to address
gaps in its implementation and make the law more child-friendly.
During the course of the implementation of the Act, several issues
arose such as increasing incidents of abuse of children in
institutions, inadequate facilities, quality of care and rehabilitation
measures in Homes, high pendency of cases, delays in adoption due
to faulty and incomplete processing, lack of clarity regarding roles,
responsibilities and accountability of institutions and, inadequate
provisions to counter offences against children such as corporal
punishment, sale of children for adoption purposes, etc. have
highlighted the need to review the existing law.

4. Further increasing cases of crimes committed by children in the


age group of 16-18 years in recent years makes it evident that the
current provisions and system under the Juvenile Justice (Care and
Protection of Children) Act, 2000, are ill equipped to tackle child
offenders in this age group. The data collected by the National
Crime Records Bureau establishes that crimes by children in the age
group of 16-18 years have increased especially in certain categories
of heinous offences.

5. Numerous changes are required in the existing Juvenile Justice


(Care and Protection of Children) Act, 2000 to address the
abovementioned issues and therefore, it is proposed to repeal
existing Juvenile Justice (Care and Protection of Children) Act, 2000
and re-enact a comprehensive legislation inter alia to provide for
general principles of care and protection of children, procedures in
case of children in need of care and protection and children in
conflict with law rehabilitation and social re-integration measures for
such children, adoption of orphan, abandoned and surrendered
children and offences committed against children. This legislation
would thus ensure proper care, protection, development treatment
and social re-integration of children in difficult circumstance by
adopting a child-friendly approach keeping in view the best interest
of the child in mind.

[30] In the instant appeals, all the appellants belong to the age
group of 16-18 years and the cases tried against them are
undoubtedly serious and heinous offence and that is why after due
assessment, the Board has referred their matter before the
Children's Court to be tried as an adult. Except an embargo, that
after holding a trial and recording their conviction, these delinquent
juveniles would not be awarded death sentence or life imprisonment
without a possibility of release. Section 21 of the Act reads as
under:-

21. Order that may not be passed against a child in conflict with
law.-No child in conflict with law shall be sentenced to death or for
life imprisonment without the possibility of release, for any such
offence, either under the provisions of this Act or under the
provisions of the Indian Penal Code (45 of 1860) or any other law
for the time being in force.

[31] Since all the appellants are languishing in jail and seeking bail
for their respective offence and in the earlier paragraphs, the court
has held that the remedy is available to adhere the provisions of
Section 12 of the Act, which provides that the bail should be
awarded to the persons, who are apparently children, as a matter of
right as the word 'shall' has been used in the provision itself, giving
a mandatory indication. On the other hand, these delinquent
juveniles are allegedly involved in the heinous offences committed
by them, who have crossed the age limit of 16 years and after the
assessment by the Board with regard to their mental and physical
capacity to commit such offence, and ability to understand the
consequences/repercussions and the circumstances in which
he/they has/have allegedly committed the offence, has held that
they shall be tried like adults, as per the provision of Section 18(3)
of the Act.

[32] This in fact is a dichotomy, whereby a juvenile delinquent is


being released on bail except those above three conditions provided
under Section 12(Proviso) of the Act, that too as a matter of right.
On the other hand, they shall be tried as adults and could be
awarded any sentence as per the discretion of the court provided
under the law, except the life sentence and death sentence. This
dichotomous situation could be resolved by taking the recourse of
"object" of the legislation and Para 4 of the Statement of object and
reasons, clearly mandates that the enactment of Juvenile Justice
Act, 2000 was ill-equipped to tackle child offenders between the age
group of 16-18 years and involved in heinous offences, like, murder,
gang rape, solitary-rape, bride burning etc. and to resolve this
impasse, the court holds that for the purposes of bail to the
adolescent offender between the age group of 16-18 years, involved
in the heinous offence like murder, solitary-rape, gang-rape, bride
burning, drug trafficking, the beneficial legislation for the purposes
of bail under Section 12 of the Act shall not apply in its present
shape and format. It would be no more as a matter of right to such
delinquent minor, who is involved in heinous offences. It is not
possible to furnish exhaustive list of such offences but it definitely
connotes the same meaning as defined in Section 2(33) of the Act.
While deciding the bail of such delinquent offender ranging between
the age group of 16-18 years would be discretionary upon the court,
which shall in addition to those grounds provided under Section
12(Proviso) of the Act, also take into account with regard to his
mental, physical capacity, ability to understand the gravity of that
heinous offence, including their respective participation in the crime
and the circumstances wherein he/they has/have allegedly
committed that particular grave and serious offence. All these
factors too are determinative factors while adjudicating the bail
applications of juvenile offenders in the age group of 16-18 years,
else it would be a mockery of legislation and the object of the
present legislation would reduce to naught.

[33] During the arguments, it was also brought to the notice of the
Court that the Session Divisions are ill-equipped to sale out the
mandatory provisions of the Act and its execution. While preliminary
assessment was made in the heinous offence of the Board, there is
requirement of law that the Board may take the assistance of
"experienced psychologist or "psycho social experts". There is no
expert in most of the Session Divisions which is really scary state of
affairs whereby the Board is often handicapped, on this count. In
the absence of expert psychologist or psycho-social expert, it would
not be possible to assess the mental or psychological faculty of mind
of that particular juvenile objectively, which in fact, is the
foundation stone of Juvenile Justice Jurisprudence in its correct
prospective. In the absence of detailed objective preliminary age
group of 16-18 years, their level of understanding about the gravity
of the offence and other attending circumstances, the very purpose
and objective of present Act would go haywire. In the prevailing
circumstances, this Court thus directs the State Government to take
such a remedial step preferably within a period of six months to
appoint a panel of at least six expert psychologist/psycho-social
experts in each Commissioner's Division, so that their services may
be utilized by the respective Juvenile Justice Boards within that
particular Division for making such an assessment of delinquent
juveniles.

[34] Under the aforesaid circumstances, all the appeals, mentioned


above, hereby, fails and accordingly dismissed with the direction
that appellants would approach for bail under Section 12 of the
Juvenile Justice Act, 2015 and their bail applications would be heard
and decided within seven days of its institution by the Board and
thereafter, they will adhere the conservative path for their redressal
of grievance provided under the Act.
HIGH COURT OF BOMBAY

MUMTAZ AHMED NASIR KHAN; MOHAMED HUZAIFA JAVED


AHEMD ANSARI THROUGH HIS GUARDIAN JAVED AHMED
ISMAIL ANSARI
V/S
STATE OF MAHARASHTRA; SHOEB MOHAMED AKRAM SHAIKH
THROUGH HIS FATHER MOHD AKRAM SHAIKH

Date of Decision: 15 July 2019

Citation: 2019 LawSuit(Bom) 1143

Hon'ble Judges: Dama Seshadri Naidu

Eq. Citations: 2019 (4) BCR(Cri) 261

Case Type: Criminal Appeal; Criminal Writ Petition; Criminal


Application

Case No: 1153 of 2018; 1346 of 2018; 262 of 2018

Subject: Constitution, Criminal

Acts Referred:
CONSTITUTION OF INDIA ART 39(E), ART 47, ART 39(F), ART 45,
ART 15(3)
INDIAN PENAL CODE, 1860 SEC 363, SEC 201, SEC 34, SEC 302,
SEC 385
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2015 SEC 14, SEC 6, SEC 19, SEC 2(33), SEC 15, SEC 2, SEC 102,
SEC 2(13), SEC 2(35), SEC 2(12), SEC 101(2), SEC 17, SEC 18,
SEC 4, SEC 3, SEC 18(3)

Advocates: Gayatri Gokhale, Samruddhi Salvim, Rizwan Merchant,


Mubin Sollkar, Tahera Qureshi, Yakub Shaikh, Nitin Sejpal, Akshata
Desai, A S Patil
Reference Cases:
Cases Referred in (+): 4

Judgement Text:-

Dama Seshadri Naidu, J

[1] Introduction:

1.A boy, on the verge of attaining adulthood-to be precise,


seventeen and half years old-faces an allegation he has inhumanly
killed a three-and-half-year-old child. Motive uncertain, the offence
remains heinous.

[2] Another boy, only a little younger-sixteen and half years- faces
the allegation of, first, conspiring with the older boy in the offence
and, second, helping him, later, to "make the evidence disappear,"
besides screening that older boy from police detection, too.
Procedural History:

[3] The Juvenile Justice Board ("the Board") assesses the older
juvenile's physical health, mental maturity, and other collateral
factors, and decides to try him, under Section 15 of the Juvenile
Justice Act, 2015, as if he were an adult. After applying the same
standards, it, however, decides to try the younger one as a juvenile.
The Board's decision engendered before the Sessions Court two
appeals: One by the Government against the Board's decision to try
the younger boy as a juvenile; the other by the older boy against its
decision to try him as an adult.

[4] The Sessions Court, on the merits, through its Orders, dated
21st February 2018, dismissed both the appeals. Now against the
two appellate orders, the victim's father, instead of the
Government, filed Appeal No.1153 of 2018. The older juvenile, too,
has filed Writ Petition No.1346 of 2018, in which the victim's father
joined as an intervener.
Facts:

[5] On 5th December 2016, the complainant received a phone call


from his wife that their daughter, three-and-half-year old, went
missing. He rushed home, searched for his daughter, and then
lodged a complaint with the jurisdictional police. The next day, the
police registered a crime under Section 363 of IPC. Until 18th
December the case saw no progress. The next day, an anonymous
person called the complainant over the phone and demanded a
ransom of one crore rupees. The calls continued the next three
days. When the police tracked the calls, they led to the older
juvenile; they took him into custody. On the information provided
by him, the police recovered the baby's dead body.

[6] The older juvenile, on interrogation, has allegedly revealed that,


first, he applied chloroform to the baby and, later, strangulated her
by the cord of a mobile charger. He is said to have disposed of the
dead body helped by the younger juvenile. In the investigation, the
police have also learned how the older juvenile used to boast of his
criminal ability or acumen, and how he enticed into his house the
baby playing in their residential complex. They have also gathered
evidence about the role the younger juvenile played not only in
disposing of the body but also in trying to conceal the older
juvenile's identity from the police: the use of different phones, sim
cards, and, as a whole, the technological adventures. So the police
added to the crime Sections 302, 385, 201, and 34 of IPC.

[7] As both the accused are juveniles, the Board took up their case
for determining whether they should be tried as juveniles or adults,
under Section 15 of the Act. It has held that the older one should be
tried as an adult and the younger one as a juvenile. The appeals
rejected, the complainant and the older juvenile have filed Appeal
No.5160 of 2018 and WP No.1346 of 2018 respectively. The
nomenclature of the proceedings does not seem to jibe with the
statutory mandate, for what lies is only a revision under Section 102
of the Juvenile Justice Act. Yet one is an appeal and the other a
criminal writ petition.

Submissions:
Victim's Father (Appellant in Appeal No.1153 of 2018 and
Intervener in WP No.1346 of 2018):

[8] Ms. Gayatri Gokhale, instructed by Rizwan Merchants &


Associates, the appellant's counsel, has strenuously contended that
the murder is gruesome, and both the juveniles played equal role in
that one. According to her, it is a misnomer to call these two
accused juveniles, because of both the depravity of the crime and
their near adulthood-just a few months short of 18 years.

[9] Ms. Gokhale has taken pains to take me through the record,
especially a few portions of the chargesheet as well as the orders of
both the Juvenile Justice Board and the Sessions Court. First, she
contends there is voluminous evidence on record that the younger
juvenile has harboured common interest since inception and
conspired with the older one. To drive home her point, she has read
out the statements of a couple of witnesses. Second, according to
her, after the murder, the younger juvenile has continued to act in
concert with the older one and did all he could to give different
colour to the crime, to make the evidence disappear, and to screen
the older juvenile from the needle of suspicion.

[10] To conclude, Ms. Gokhale has submitted that to attract


Section 34 IPC, it is unnecessary that the co-accused should have
committed any overt act. Thus, the younger juvenile's participation
in the crime, she stresses, amounts to his committing the heinous
crime by himself, as defined under section 2(33) of the Juvenile
Justice Act. And in that background, he must be tried as an adult,
Ms. Gokhale concludes.

[11] Besides highlighting Section 15 of the Act, Ms. Gokhale draws


my attention to Section 19 of the Act and stresses that the
Magistrate trying the offence has ample powers to declare a juvenile
an adult, even disregarding the Board's opinion.

[12] About the older juvenile, Ms. Gokhale, for the intervening
second respondent, has highlighted, what she calls, the callous
attitude the older juvenile has displayed throughout. She has
referred to the social status and seemingly normal childhood of the
older juvenile. According to her, with no poverty and no familial
deprivation, the older juvenile had no justification for committing
such monstrous crime.

[13] Ms. Gokhale stresses that the Court ought to be guided by the
prima facie allegations, at this stage. And that is what, she points
out, the Board and the Session Court have done; they have been, in
fact, solely guided by what has been brought on record until now.

[14] Eventually, Ms. Gokhale has taken me to a few parts of the


chargsheet to highlight how both the juveniles used the technology
and how their street-smart attitude helped them not only to commit
the crime but also to hide it, for a while though. According to her,
their conduct even post-murder deserves no sympathy. Thus, she
urges this Court not to interfere with concurrent findings of the
Board and the Sessions Court.

Younger Juvenile (Respondent in Appeal No.1153 of 2018):

[15] On the contrary, Shri Mobin Solkar, the younger juvenile's


counsel, has submitted that even prima facie the younger juvenile's
role commenced only after the older one committed the alleged
murder. In this context, he contends that none of the Sections 302,
385, 201, 363, r/w 34 of the IPC applies to the alleged role the
younger juvenile has played. So, the contention that the younger
juvenile has harboured a common intention and conspired to kill the
child attracting Section 34 of Indian Penal Code (IPC), Shri Solkar
stresses, falls to the ground.

[16] Only as a matter of hypothesis does Shri Solkar want the


Court to treat Section 201 of IPC as applying to the allegations the
younger juvenile has faced. Then, he has drawn my attention to
section 2(33) to underline the fact that any offence to be labeled
heinous must be punishable with a minimum punishment of seven
years and above. The punishment under section 201 of IPC,
according to him, even for a capital offence, is a minimum of three
years, extendable up to seven years. With that statutory prop, he
asserts that any offence under Section 201 cannot be termed
'heinous'.
[17] On his part too, Shri Solkar has taken me through the
statements of various witnesses to stress that until the murder was
committed, the younger juvenile was nowhere in the picture. In the
same vein, he submits that post-murder, there are, indeed, certain
allegations against the younger juvenile. But none amounts to a
heinous crime. Thus, he urges this Court to dismiss the appeal.
Older Juvenile (Appellant in WP No.1346 of 2018):

[18] Shri Nitin Sejpal, the older juvenile's counsel, has taken me to
the definitional dynamics of Section 2 of the Act, with a particular
reference to sub-sections (12), (13), (33), (35), (40) and (54).
According to him, there is nothing much to distinguish between the
younger and the older juveniles (technically called CCL-1 and CCL-2
respectively). Yet the JJ Board has given the benefit of the Act only
to the younger juvenile.

[19] To elaborate, Shri Sejpal submits that both the juveniles are
almost of the same age, but for a few months between them. Their
social background, family circumstances, and physical as well as
mental capacity shows the same pattern as revealed by the social
investigation. Then, Shri Sejpal has stressed that drastic may be the
allegations but even the older juvenile has always enjoyed the
presumption of the innocence, as statutorily secured under Section
3 of the Act.

[20] Shri Sejpal has taken me through every observation in


investigation report to hammer home his contentions that the older
juvenile is a normal child, brought up in a family with values. In that
context, he has submitted that the father is well educated, the
family is respected, and none in that family has been accused of any
crime hitherto.

[21] Elaborating on the older juvenile's credentials, Shri Sejpal


submits that when the alleged incident took place, the older juvenile
was pursuing his eleventh class. Even in judicial custody, he
continued his education and cleared the Board examination, that is
Class 12th, as well. The Social opprobrium the family has already
suffered apart, the Court's decision to try the older juvenile as an
adult will jeopardize his future, including educational and career
prospects.
[22] True, Shri Sejpal has also referred to the alleged police
brutality and how they have extracted confessions from him. I am
afraid they fall beyond the scope of this adjudication. Nor has the
appeal refers to the alleged police brutality. Eventually, Shri Sejpal
has referred to a judgment of this Court in Saurabh Jalinder Nangre
and others v. State of Maharashtra, 2019 1 Crimes(HC) 253 (Bom.).
Based on that decision, he submits that the prosecution and the
Juvenile Justice Court have failed to establish anything heinous
against the older juvenile.

[23] Finally, Shri Sejpal submits that mere incorporation of, for
instance, Section 302 would not foreclose a juvenile's option-even
right-to be tried only as a juvenile. Thus, summing up his
submission, Shri Sejpal urges this Court to reverse the concurrent
findings of the Juvenile Justice Court and the Sessions Court.
Consequently, he wants the older juvenile, too, tried as a juvenile.

Discussion:

[24] To preface, let me invoke William Shakespeare. In Winter's


Tale, (Act 3, Scene 3), through a shepherd, he bemoans the terrible
teens: I would that there were no age between sixteen and three-
andtwenty, or that youth would sleep out the rest, for there is
nothing in the between but getting wenches with child, wronging
the ancientry, stealing, fighting . . .[ 1 ]

[25] Two juveniles-one aged seventeen and half years and the
other sixteen and a half years-face the allegation of killing a child of
three and a half years. To face the trial, they must first be assessed
whether they are mentally and physically still juveniles or have the
maturity of an adult. For this, we must, to begin with, survey the
statutory scheme.

Statutory Stipulations:

[26] Juvenile Justice (Care and Protection of Children) Act, 2015,


governs the issue. It is a law that concerns the "children alleged and
found to be in conflict with the law and children in need of care and
protection." The enactment has its constitutional foundations in
clause (3) of Article 15, clauses (e) and (f) of Articles 39, Article 45,
and Article 47 of the Constitution of India. Traveling beyond the
Municipal Law, we find that "the Government of India has acceded
on the 11th December 1992 to the Convention on the Rights of the
Child, adopted by the General Assembly of United Nations." This
Convention prescribes a set of standards to be adhered to by all
State parties in securing the best interest of the child. The 2015 Act
models itself after the standards prescribed in the Convention's
Beijing Rules, 1985, the UN Rules for the Protection of Juveniles
Deprived of their Liberty, 1990, and the Hague Convention on
Protection of Children and Co-operation in Respect of Inter-country
Adoption, 1993.

[27] This Act applies to all matters affecting the children needing
care and protection and children in conflict with the law. Under
Section 2 (12), a "child" means a person who has not completed
eighteen years of age. A "child in conflict with law", under Section 2
(13), means a child who is alleged or found to have committed an
offence and who has not completed eighteen years of age on the
date of commission of the offence. And "heinous offences", as
defined under Section 2(33), include "the offences for which the
minimum punishment under the IPC or any other law for the time
being in force is imprisonment for seven years or more."

[28] Under Section 2 (35) a "juvenile" means a child below the age
of eighteen years. Thus a "child" and a "juvenile" seem synonymous
-both having the threshold of 18 years. Sub-section (4) defines an
"observation home." And sub-section (54) defines "serious
offences". As the definition is inclusive, any offences for which the
punishment, under the IPC or any other law in force, is
imprisonment between three to seven years.

[29] Section 3 enumerates the "general principles to be followed in


the administration of the Act." Among those principles, the principal
are these: (a) The presumption of innocence: every child shall be
presumed to be innocent of any mala fide or criminal intent up to
the age of eighteen years. (b) Dignity and worth: all humans shall
be treated with equal dignity and rights. (c) Participation: Every
child shall have a right to be heard and to participate in all
processes and decisions affecting his or her interest. (d) Best
Interest: all decisions about the child shall be in the best interest of
the child and to help the child develop full potential. (e) Non-
stigmatic semantics (words): adversarial or accusatory words are
not to be used against a child. (f) No waiver of rights: no waiver of
the child's any right. (g) Diversion: all measures must be taken to
avoid judicial proceedings while dealing with the children in conflict
with the law. The judicial recourse, however, must be in the child's
best interest or the society's.

[30] Under Section 4 of the Act, the Juvenile Justice Board


comprises a Metropolitan Magistrate or a Judicial Magistrate of First
Class with prescribed qualifications such as experience, and two
social workers, of whom at least one must be a woman. This Board
will have the powers of a Metropolitan Magistrate or a Judicial
Magistrate of First Class. If a person committed an offence when he
was a juvenile but was apprehended after his crossing 18 years, he
must be treated, under Section 6, as a child during the process of
inquiry. Among the powers, functions, and responsibilities of the
Board is its power to adjudicate and dispose of cases of children in
conflict with the law in accordance with the process of inquiry
specified in Section 14.

[31] Under Section 14 of the Act, the Board inquires and passes
orders under Sections 17 and 18. The inquiry encompasses all
aspects of a child in conflict with the law. Indeed, under subsection
(3), the Board preliminarily assesses heinous offences under section
15, in three months after the child is produced before it. Of course,
the time may be extended for the reasons recorded. The Board
would inquire into or try a heinous offence adopting the procedure
of summons cases if the child was below sixteen years when he had
committed the offence. For a child above sixteen years, inquiry
must be as per Section 15.

[32] Now comes the prominent provision for our purpose: Section
15 of the Act. If a child above 16 years is accused of committing a
heinous offence, the Board must conduct a preliminary assessment
about the child's mental and physical capacity to commit the alleged
offence, his ability to understand the consequences of the offence
and the circumstances in which he allegedly committed the offence.
Then, the Board will pass an order under Section 18 (3) of the Act.
It pays to quote Section 15:

Section 15 - Preliminary assessment into heinous offences by


Board:

(1) In 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, 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 the provisions of subsection (3) of section 18:

Provided that for such an assessment, the Board may take the
assistance of experienced psychologists or psycho-social workers or
other experts.

Explanation.-- For the purposes of this section, it is clarified that


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

(2) Where the Board is satisfied on preliminary assessment that the


matter should be disposed of by the Board, then the Board shall
follow the procedure, as far as may be, for trial in summons case
under the Code of Criminal Procedure, 1973 (2 of 1974): Provided
that the order of the Board to dispose of the matter shall be
appealable under sub-section (2) of section 101: Provided further
that the assessment under this section shall be completed within
the period specified in section 14. (italics supplied)

[33] As Section 15 permits the Board may, during the preliminary


assessment, take the assistance of experienced psychologists or
psychosocial workers or other experts. First, the preliminary
assessment is "not a trial." Second, it is, instead, an inquiry to
assess the child's capacity to commit the alleged offence and to
understand its consequences. On inquiry, the Board must satisfy
itself in its preliminary assessment about the juvenile's mental and
physical capacity, his ability to understand the consequences of the
offence, and so on. Then, if the Board is "satisfied on preliminary
assessment that the matter should be disposed of", it will follow
"the procedure, as far as may be, for trial in summons case under
Cr PC." The Board's order is appealable under sub-section (2) of
Section 101.

[34] Now comes the role of the Children's Court. Once it receives
the preliminary assessment from the Board under section 15, it may
decide to try the child as an adult under Cr. P.C. If it decides to the
contrary, it tries him as a juvenile. The Children's Court, too, "may
conduct an inquiry as a Board and pass appropriate orders" under
Section 18.

The Adjudicatory Bounds:

[35] Against the Board's order under Section 15 of the Act, Section
101 (2) provides for an appeal. The appeal must be before the
Court of Sessions. The appellate court, too, takes the assistance of
experienced psychologists and medical specialists, other than those
who assisted the Board in its passing the order under appeal. As
subsection (4) mandates, there is no further appeal against the
Court of Session's order.

[36] Indeed, the High Court, under Section 102, has revisional
powers. It is, as I see, a generic revisional power. It may, at any
time, "call for the record of any proceeding in which any Committee
or Board or Children's Court, or Court has passed an order". Once
the record is placed before it, the High Court may satisfy itself about
"the legality or propriety" of any order and "pass such order in
relation thereto as it thinks fit."

[37] Earlier the Supreme Court has considered the High Court's
revisional powers under the now-repealed 2002 Act. In Jabar Singh
v. Dinesh, 2010 3 SCR 353 , it has held that the revisional court's
powers differ from the appellate court's. They are more restricted.
Especially on the findings of a fact, the revisional court does not
interfere unless there is illegality or perversity.

What makes a juvenile an adult, besides the numerical called age?


[38] A universally accepted ideal is that children are dependent and
deficient in the mental and physical capacities, and are in need of
guidance. Perhaps, initially, a multi-visual medium like TV; later, a
globe devouring internet (appropriately, ominously worded as
"world wide web"), and finally-and fatally-the post-truth social
media have let the children, especially the adolescents, leapfrog into
the adult world. Mostly it is a crash-landing, with disastrous
consequences. So the childhood innocence is the casualty. These
devices may have made a child bypass his or her childhood, sadly.
Then, naturally, the theory of reduced culpability for juveniles
relative to adults has taken a statutory dent. The good-old-days
icon of a truant child seems to get replaced by the modern-day
mascot of a violent predator.

[39] If we take the USA as a case in point because there the data
are more easily accessible, we can see a dramatic upswing in youth
crimes beginning in the 1970s. It caused a new shift in the
treatment of juvenile offenders. The public became increasingly
alarmed by the reported surge in murders, rapes, and other violent
assaults committed by teenagers. So people began demanding their
legislatures to act. Some experts have blamed the increase in
juvenile crime on the rise in drug abuse, especially the influx of
crack cocaine, while others blame a lack of parental guidance due to
the decline of the traditional twoparent home. While overall crime
increased during the 1980s and 1990s, juvenile crime grew at a
disproportionately faster rate. According to one study cited by
Richard E. Redding in Juvenile and Family Court Journal, from 1987
to 1995 the number of juveniles arrested for violent crimes such as
aggravated assault, murder, manslaughter, and rape rose 60%,
while adult violent crime rose only 24% over the same period. But
Redding also notes that between 1994 and 1996, there were
significant decreases in juvenile crime, including a 31% decrease in
juvenile homicide[ 2 ].

[40] The perception of a juvenile crime wave persists, however,


largely because of national media coverage of extreme cases. So
concludes Richard E. Redding.[Id.]
[41] As a result, since the mid-1970s, nearly every U.S. state has
revised its laws to facilitate the transfer of adolescents from juvenile
to criminal court (these laws are thus called the "transfer laws").
Some states have lowered the age at which an adolescent is eligible
to be transferred by a judge to criminal court; some states have
allowed prosecutors to directly file adolescents' cases in criminal
court, before any hearing in the juvenile court; and some states
created laws that automatically exclude certain adolescents (based
on their age and charged offense) from juvenile court. The specifics
of states' transfer laws vary considerably, but the result is that
more youth below eighteen are now prosecuted in criminal court
rather than juvenile court.[ 3 ]

[42] On transfer to the regular criminal court, the trial may be


according to the mainstream criminal procedure, but the
punishment, however, must be reformative and rehabilitative-rather
than retributive. Then what is the difference between the two trials-
the trial before the regular court and that before the children's
court?

[43] Essentially, the trial in the regular court is offense oriented; in


the juvenile court, it is offender oriented. In other words, in the
children's court, societal safety and the child's future are balanced.
For an adult offender, prison is the default option; for a juvenile it is
the last resort. Aaron Kupchik calls the method adopted by the
regular criminal courts vis-a-vis juveniles the "sequential model of
justice." That is, it adheres to a criminal justice model during the
trial phase of case processing, but moves toward a juvenile justice
model during sentencing, though the quantum varies in both
methods. In contrast, the juvenile court follows a justice model
throughout.

[44] Under the Chapter "Understanding the Scope of the Problem",


Aaron Kupchik notes that jurisdictional transfer is hardly an
innovation. Since the creation of the juvenile court, judges have
been able to designate as adults and transfer to criminal court
certain serious offenders who require punishments beyond what the
juvenile court can give. The methods, according to him, vary,
though. He identifies three methods.
[45] The first method is judge-centric. The judge can select for
transfer the most serious juvenile court cases, involving either the
most severe offenses or chronic offenders. This method is termed
"judicial transfer" or "judicial waiver". It was once prevalent. The
second method is legislative transfer, or statutory exclusion. This is
what Section 15 of the Act advocates. The third is "direct file", or
"prosecutorial transfer". This method gives prosecutors "substantial
authority without any oversight or judicial supervision."

[46] The learned author then quotes from the book, The Child
Savers, in which its author Anthony Platt responds to how he would
ideally like to handle cases of adolescents. He replies:

If I was going to do social engineering, I suppose what I would do is


create a system where the courts would deal with these issues, the
[Juvenile] Court and the [Criminal] Court, would be permitted
access to impaneled and certified experts in child psychology, child
behavior, mental health, where assessments could be done that
would be state-of-theart to evaluate the child's cognitive skills and
educational level, where we would have the benefit of a full analysis
of the capacity of the individual in front of us and access to
expertise at will. And then we can do what is appropriate based on a
better understanding [of] who is in front of us.[ 4 ]

[47] I reckon Section 15 of the Act precisely does this. It takes into
the evaluative process the child's behaviour, mental health,
cognitive skills, and educational level. The criteria met, then it is
"adult time for adult crime." That said, it is no easy task to apply
this adage of adult crime and adult time.

[48] In Rethinking Juvenile Justice[ 5 ], Elizabeth S. Scott &


Laurence Steinberg, under the caption "The Psychology of
Adolescence and the Regulation of Crime," observe that adolescents
differ from adults-and juvenile offenders differ from adult criminals -
in ways important to the regulation of youth crime. A vast body of
recent research that was not available a generation ago, according
to the authors, offers insights into both adolescence and youth
crime. The research demonstrates convincingly this developmental
stage is distinctive in ways that are relevant both to the
involvement of adolescents in crime and to the effective legal
responses.

[49] According to Elizabeth S. Scott et al, first, available scientific


knowledge confirms what parents of adolescents surely know-that
although teenagers are not childlike, they are less competent
decision makers than are adults. Indeed, adolescents' capacities for
reasoning and understanding (what might be called "pure" cognitive
abilities) approach adult levels by about age sixteen. But the
evidence suggests they may be less capable than are adults of using
these capacities in making real-world choices. More important
perhaps is that the juvenile's emotional and psychosocial
development lags behind their cognitive maturation.

[50] For example, teenagers are, according to Elizabeth S. Scott et


al, considerably more susceptible to peer influence than are adults;
they are more likely to focus on immediate rather than long-term
consequences; they are more impulsive and subject to mood
fluctuations. They are, in fact, more likely to take risks and probably
less skilled in balancing risks and rewards. Finally, personal identity,
the authors opine, is fluid and unformed in adolescence. This is a
period when individuals separate from their parents, experiment
(often in risky endeavors), and struggle to figure out who they are.

[51] Then, Elizabeth S. Scott et al note that these developmental


factors, in combination, undermine adolescent decision making and
contribute to immature judgment-as this term is used in common
parlance. Moreover, recent research has elucidated the biological
underpinnings of many of these psychological attributes. Studies of
brain development show that during adolescence, significant
maturation occurs in brain systems and regions involved in long-
term planning, impulse control, regulation of emotion, and
evaluation of risk and reward. Thus, the immature judgment of
teenagers to some extent may be a function of hard wiring.[ 6 ]

[52] Of course, there are people who scoff at this pro-juvenile


slant. For them juvenile offenders are "criminals who happen to be
young, not children who happen to be criminal."[ 7 ] Finally,
Elizabeth S. Scott et al caution that "the categorical waiver of
youths on the basis of age and the seriousness of the presenting
criminal charges alone is undesirable" on social welfare grounds
because almost surely it will lead to adult prosecution and
punishment not only of life-course persistent offenders but "also of
many normative adolescents who would likely mature out of their
inclinations to get involved in criminal conduct." Then, "to avoid
sweeping many youths who are not incipient criminals into the adult
system," they conclude, "transfer should be precluded for any
juvenile with no previous record of serious violent offending"[ 8 ].

In the UK:

[53] Under the English Legal System, young offenders are usually
tried in youth courts (formerly called juvenile courts), which are a
branch of the magistrates' court. Other than those involved in the
proceedings, the parents and the press, nobody may be present
unless authorised by the court. Parents or guardians of children
under 16 must attend court at all stages of the proceedings, and the
court has the power to order parents of older children to attend.

[54] Young persons can, in limited circumstances, be tried in a


Crown Court: for example, if the offence charged is murder,
manslaughter, or causing death by dangerous driving. They may
sometimes be tried in an adult magistrates' court or the Crown
Court if a co-defendant in the case is an adult. Following a Practice
Direction, discussed below, a separate trial should be ordered unless
it is in the interests of justice to do otherwise. If a joint trial is
ordered, the ordinary procedures apply 'subject to such
modifications (if any) as the court might see fit to order'.

[55] The trial procedures for young offenders have been reformed
in the light of a ruling of the European Court of Human Rights in T v
UK and V v UK (2000). The EC Court has found that Jon Venables
and Robert Thompson, who were convicted by a Crown Court of
murdering the two-year-old James Bulger in 1993, did not have a
fair trial under Art. 6 of the European Convention on Human Rights.

[56] Following that decision in Thompson and Venables, a Practice


Direction was issued by the Lord Chief Justice laying down guidance
on how young offenders should be tried when their case is to be
heard in the Crown Court. The language used by the Practice
Direction follows closely that employed in the European decision. It
does not lay down fixed rules but states that the individual trial
judge must decide what special measures are required by the
particular case, considering 'the age, maturity, and development
(intellectual and emotional) of the young defendant on trial'.

[57] The trial process should not expose that defendant to


avoidable intimidation, humiliation or distress. All possible steps
should be taken to assist the defendant to understand and
participate in the proceedings. It recommends that young
defendants be brought into the court out of hours, so they become
accustomed to its layout. Jon Venables and Robert Thompson had
both benefited from these familiarisation visits. The police should
try to avoid exposing the defendant to intimidation, vilification or
abuse. As regards the trial, it is recommended that wigs and gowns
should not be worn and public access should be limited. The
courtroom should be adapted so that, ordinarily, everyone sits on
the same level[ 9 ].

Europe:

[58] In Western continental Europe, the upper limit of penal liability


within the juvenile justice system is 18 years. In some countries
this upper-age limit is absolute: strict model. It means minors can
never be brought before an adult court. In others, this limit is
flexible, so minors can get adult sentences and (in some countries)
even be sentenced by an adult criminal court. It is a flexible model.

[59] Germany is a striking example of the strict model. In that


country, juveniles only come under the youth justice system from
the age of 14. The German Jugendgerichtsgesetz (JGG)
distinguishes educational measures, disciplinary measures, and
punishments. Austria, too, operates, under the strict model. So is
Switzerland.

[60] The second model in operation in Europe is one in which a


flexible upper limit is coupled with relatively low maximum penalties
in the juvenile justice system.
[61] Under the flexible model, most juveniles who appear in court
are guaranteed a relatively low maximum penalty, with exceptions
for very serious cases. This model operates in the Netherlands.
Article 77b of the Penal Code allows courts to try suspects who were
16 or 17 years old at the time of the offence under ordinary adult
criminal law if they find grounds to do so in 'the seriousness of the
crime, the personality of the offender, or the circumstances in which
the crime was committed'. Belgium and France, too, operate this
model, with variations as to the juvenile's age.[ 10 ]

In the USA:

[62] In Kent v. United States,1966 383 US 541 , Kent, 16-year-old,


was arrested for various charges. For 24 hours he was in police
custody; questioned, he admitted to some offenses. Then Kent was
subject to the "exclusive jurisdiction" of the District Juvenile Court,
which could "only waive jurisdiction after a "full investigation" of the
question of waiver." In Kent's case, the Juvenile Court waived its
jurisdiction without a hearing or allowing Kent's counsel to access
important Court Social Service files. The U.S. District Court
dismissed Kent's claim and tried him as an adult. Later, he was
convicted as an adult.

[63] When Kent's challenge eventually reached the US Supreme


Court, it has considered the factors to be considered before
transferring juveniles to criminal court. According to it, the judges
must assess these factors thoroughly before waiving a juvenile to
criminal court:

1. The seriousness of the alleged offense to the community and


whether protecting the community requires waiver;

2. Whether the alleged offense was committed in an aggressive,


violent, premeditated, or willed manner;

3. Whether the alleged offense was against persons or against


property, greater weight being given to offenses against persons,
especially if personal injury resulted;
4. The prosecutive merit, i.e., whether there is evidence upon which
a [court] may be expected to return an indictment;

5. The desirability of trial and disposition of the entire offense in one


court when the juvenile's associates in the alleged offense are
adults;

6. The sophistication and maturity of the juvenile by consideration


of his home, environmental situation, emotional attitude, and
pattern of living;

7. The record and previous history of the juvenile, including


previous contacts with . . . law enforcement agencies, juvenile
courts and other jurisdictions, prior periods of probation . . . or prior
commitments to juvenile institutions;

8. The prospects for adequate protection of the public and the


likelihood of reasonable rehabilitation of the juvenile (if he is found
to have committed the alleged offense) by the use of procedures,
services, and facilities currently available to the juvenile court.[ 11 ]

(italics supplied)

The Older Juvenile's Characteristics:

(a) The Social Investigation Report, dt.18.08.2018:

[64] In the absence of any other criteria, let us examine the case in
the light shown by Kent. First, we will examine the Social
Investigation Report. Prefatorily, the Report classifies, rightly, the
offence as heinous. About the older juvenile, it notes he is a normal
child; his father is an architect having his own office; the mother a
homemaker; and two siblings, younger sisters, both studying.

[65] As to the relationship among the members of the family:


father & mother-cordial; father & child-cordial; mother & child-
cordial; father & siblings-cordial; mother & siblings-cordial; child &
siblings-cordial; child & relative-not known. The older juvenile's
attitude towards religion, to sum up, is God-fearing; he does his
prayers regularly. Of moral code at home, the Report records it to
be good, as the father is well-educated and is well aware and
concerned about the children's education. "All children are pursuing
education. Parents often inquire about daily schedule of children."

[66] About the present living conditions, the Report reveals that
before the incident, the family was living in its own house. Post
incident, it shifted to paternal uncle's house. Under the caption
"other factors of importance if any", the Report notes that after the
incident the complainant and the neighbours turned hostile, so the
family had to leave the place.

[67] About the older juvenile's habits, the Report notes that he
does not smoke, drink, gamble, or beg. He uses no drugs. He
watches TV and movies, loves playing both indoors and outdoor
games, reads books, but does not have specific religious activities.
He is fond of sports cars.

[68] The juvenile's personality trait is reported to be "cool


tempered and noticed to be sensible." The older juvenile's attitude
towards school, teachers, classmates and "vice-versa" reveals that
he was not so regular to college and average in studies. "He said he
is absent from long as he was not keeping well due to harpies that
he was infected." Majority of his friends are educated, either of the
same age or older, but belong to the same gender. His attitude
towards friends reveals that he spends good time with his friends.
He is stated to have a good bonding with friends and "so does his
friends."

[69] Of importance is the neighbours' observations or, more


precisely, their absence. The Report reveals that "neighbours are
not contacted as the society is a flat system, other flats on the floor
were locked & no one was available to interact." This version, first,
is difficult to believe and, second, the Report misses a vital
opportunity to assess the juvenile in the eye of the neighbours-the
miniature society. Then, on the parental attitude towards discipline
in the home and child's reaction, the Report observes that it is
"noticed to be good", as the parents stated they often enquire about
the daily schedule of children, keep supervision on academics. And
the juvenile too affirms it.
[70] Another vital factor in the Report concerns whether the "child
has been subjected to any form of abuse." The older juvenile
informs the authorities that at the time of his admission into OHU,
he "was beaten in the police station by police officials" and that the
statement was submitted to the Juvenile Justice Board for
information. About the "alleged role of the child in the offence", the
older juvenile admits that he committed the crime. Despite that, the
Report concludes that the child is "manipulative based on verbal
statements given by him."

[71] The older juvenile's health is normal. As to the emotional


factors, he is "observed to be emotionally stable. There is no
evidence of any kind of psychological disorder. "The [older juvenile]
expressed his feelings of guilt and regret for his unhealthy action in
the offence." In other words, he is penitent.

[72] Now comes the summation part of the Report. Under "Analysis
of the case", the Report records that

"the [older juvenile] accepted his active involvement in the offence


& stated that the girl was accidentally death by him.

[The older juvenile] mentioned that he and his friend Shoeb is


partially involved in the offence whereas he refers to this incident
with the coincidence."

[73] From the above extract, I gather that the older juvenile has
admitted that he killed the girl, but that was accidental. He states
that his friend, the younger juvenile, has a partial role in the crime.
He again reiterates the crime was accidental.

[74] Then comes the subjective observation in the Report. It states


that the older juvenile "fumbled while providing the details of the
incident; his own information is contradicting with the other factors
provided by him. And he was not so co-operative during interview
sessions and seems to be highly manipulate[ive]."

[75] With due deference to the Probation Officer's opinion, I may


note that the conclusion does not jibe well with the rest of the
Report. If the older juvenile is manipulative, he ought to be crafty
and cunning. He must be glib, not fumbling and clumsy. Then, he
must not have admitted his guilt. On the contrary, he has, prima
facie, made a clean breast of the event.

[76] Finally comes the "recommendation regarding rehabilitation by


Probation Officer." The Report records that the older juvenile is
undergoing Class XII exam in OHU, "preparing well for the exam."
Now it comes to light, he did clear that examination. The parents
were "at present unwilling . . . for the custody" of their child. They
felt it better if the child is kept in the Observation Home for some
more time, "as outside environment is unfavourable and it might be
harmful to the [older juvenile.]

[77] The Report also records that the older juvenile was
"counselled against the involvement in the criminal act & he was
also motivated for a need to focus on his academic career that will
help him" make a better future. But the Report concludes thus:
"Considering the gravity of the offence and in the best interest of
the [older juvenile], further necessary orders can be passed." This
report emanates from the Probation Officer.

(b) Mental Health Report:

[78] The Mental Health Report comes from three Mental Health
Experts of J. J. Group of Hospitals. It was given on 10th April 2017.

[79] The MH Report begins with an observation that the older


juvenile "has no psychiatric complaints at present." Then it records,
what the juvenile has narrated. The juvenile knew the victim as she
used to stay in the same building and often visited his house asking
for chocolate, which he regularly kept in the house. Once he ignored
the child's request (on the fateful day), she started to snatch at his
phone; then he pushed her. When she fell down, a wooden plank
fell on her. In that process, she got "accidentally strangulated due
to computer wire." He is said to have panicked and hidden her body
in a bag (in his house) and threw it from the window to the terrace
of a neighbouring structure to evade suspicion.

[80] The MH Report records how the older juvenile has further
dealt with the incident. He says that he announced the news of the
missing girl in the local Masjid. He claims to have tried to keep track
of the search operations for the missing child. Some people started
voicing concerns that as no ransom calls were made, the child must
be in the locality. So he made ransom calls along with his friend, the
second juvenile. He further claims to have never gone to the place
where he asked the child's father to drop the ransom money.

[81] Then, MH Report records the juvenile's mental health


assessment. In January 2008, he was taken to Psychiatry OPD in
Nair hospital for behavioural problems. "Provisional diagnosis
conduct was made and he was kept under observation on OPD
basis. His IQ test showed average intelligence and CAT test in 2009
showed conflicts with "authority figures". As per the available
documents, he was given medications on 14.11.2009 for his
behavioural problems after which they never followed up. Further
documents of treatment and further progression of illness is not
available. No history of any substance use. No family history of
psychiatric illness. No history of any medical or surgical illness.

[82] On Mental Status Examination, the MH Report concludes that


the older juvenile is "conscious, cooperative, communicative;
Attention is aroused and sustained; eye to eye contact initiated and
maintained; rapport established; oriented of time, place and
person; speech and thought conscious, coherent, relevant, no
delusions. In one word, the MH Report concludes that the older
juvenile is normal and suffers from no mental incapacity to commit
the offence.

(b) Juvenile Justice Board:

[83] The Board comprised the Principal Magistrate and two


members, one of whom was absent. In its Report or Order,
dt.22.08.2017, the Board has decided to try the older juvenile as an
adult and the younger one as a juvenile.

[84] After referring to the Social Investigation Report and the MH


Report, the Board concludes, "[i]n the circumstances stated above,
I do not find any mitigating circumstances in the case of [older
juvenile] to extend him the benefit of Juvenile Justice Act." Of
course, it takes a lenient view vis- -vis the younger juvenile, given
his limited role in the crime.

(d) The Appellate Court:

[85] On appeal, the Special Judge, Children's Court, has observed


that the JJ Board has rightly appreciated the Social Investigation
Report and Physical & Mental Health Report. The appellate order
holds that the older juvenile was of sound mind and had the age of
understanding the consequences when he allegedly committed the
offence. It, then, concluded, "I am of the considered view that [the
older juvenile] cannot be inquired with by the JJ Board in view of
the heinous act committed by him, he has to be treated as an
adult." Does the Board's Decision, as Affirmed by the Appellate
Court, Brook Interference?

[86] It is inadvisable to tinker with an expert's opinion. Yet it


remains, after all is said and done, an opinion, at that. The JJ Board
has undertaken no independent assessment; it has, in fact, heavily
relied on the Social Investigation Report and MH Report. So its
opinion, in the strict sense, cannot be branded an "expert opinion."
The same reasoning applies to the appellate order, too. That said,
the two reports the Board has relied on are, indeed, expert
opinions: one rendered by a Probation Officer and the other by a
panel of doctors. But neither report brings out into open any
exceptional circumstances that compel the older juvenile to face the
trial as an adult.

[87] So we need to revisit Section 15 of the Act to determine what


circumstances compel a juvenile to face the trial as if he were an
adult.

(1) It must be a heinous offence; here it is. (2) The child must have
completed sixteen years; here he has. (3) The Board must have
conducted a preliminary assessment; here it has. (4) That
preliminary assessment concerns four aspects: (a) the child's
mental and (b) physical capacity to commit such offence; (c) his
ability to understand the consequences of the offence; (d) and the
circumstances in which he allegedly committed the offence. The
preliminary assessment, indeed, has been on all these aspects.
Agreed. But has the Board found the child fitting into the scheme on
all four counts?

[88] I reckon of the four aspects-physical capacity, mental ability,


understanding, and the circumstances-none is dispensable. They all
must be present, for they are not in the alternative. Let us remind
ourselves, just because the statute permits a child of 16 years and
beyond can stand trial in a heinous offence as an adult, it does not
mean that the statute intends that all those children should be
subject to adult punishment. It is not a default choice; a conscious,
calibrated one. And for that, all the statutory criteria must be
fulfilled.

[89] Here, the Social Investigation Report records many factors


uniformly in the older juvenile's favour. It misses out on one very
vital aspect: the neighbourhood perception of the juvenile. It
records an improbable circumstance: that in a residential
apartment, none was present to provide information on that count.
On every other parameter, the Report favours the juvenile. In fact,
the juvenile makes a clean breast of the incident or crime and
expresses remorse for the accident, as he calls it. It is, true, an
extra-judicial confession. So is what the police have extracted from
him about the child's death. The older juvenile did report to the
Probation Officer about the police brutality and the Report responds
to it. It has informed the Board about the juvenile's allegation.

[90] Despite the older juvenile's "confession" to crime, the Report


records that he has been manipulative and evasive-even
contradictory. But the very Report belies it. Perhaps, the gravity of
the offence and the public outcry must have heavily weighed on the
Report. Let us take, for want of better evaluative norms, Kent's
criteria and assess the Board's justification to try the older juvenile
as an adult:

(1) The seriousness of the alleged offense to the community and


whether protecting the community requires a waiver:

The offence serious-even grave-and the community needs


protection. But the Social Investigation Report misses out on
gathering the community's opinion whether it needs protection from
this juvenile. Is he a predator on the prowl and out to repeat the
offence with or without provocation? The older juvenile, in fact, is
an ordinary, unremarkable neighbourhood boy.

(2) Was the alleged offence committed in an aggressive, violent,


premeditated, or willed manner?

No. Even the extra-judicial confession does not spell out that it was.

(3) Was the alleged offense committed against persons or against


property, with a greater weight attached to offenses against
persons, especially if personal injury resulted.

The alleged offence answers this claim here.

(4) The prosecutive merit of the complaint; that is, is there


evidence upon which the court may be expected to return a guilty
verdict?

Very likely (only for the evaluative purpose, though)

(5) The desirability of trial and disposition of the entire offense in


one court when the juvenile's associates in the alleged offense are
adults.

It does not apply here.

(6) The sophistication and maturity of the juvenile by consideration


of his home, environmental situation, emotional attitude, and
pattern of living:

Post the alleged offence, the juvenile seems to have displayed some
sophistication in making calls of ransom only to deflect the police
attention. But the juvenile's home, environmental situation,
emotional attitude and pattern of living are normal or
unremarkable. Especially, his family and pattern of living are almost
ideal, as per the Report.

(7) The record and previous history of the juvenile, including


previous contacts with the law enforcement agencies, juvenile
courts and other jurisdictions, prior periods of probation or prior
commitments to juvenile institutions.

To this criterion, the answer is a clear no. The juvenile had been
pursuing his education, had been under strict parental care, and has
no criminal track record.

(8) The prospects for adequate protection of the public and the
likelihood of reasonable rehabilitation of the juvenile (if he is found
to have committed the alleged offense) by using the procedures,
services, and facilities currently available to the juvenile court.

On this count, we may note that post the incident, the parents faced
social opprobrium and shunning. They were forced to shift to some
other place. They preferred the juvenile to be kept in the
Observation Home.

[91] In the Observation Home, the older juvenile's conduct is


reported as good. He studiously pursued his studies and even
cleared the Board examination. Both the Social Investigation Report
and the MH Report reveal that the juvenile has been remorseful
about the event and displayed a calm, unagitated mind.

[92] The explanation to Section 15 of the Act clarifies that the


preliminary assessment is not a trial; it is an exercise to assess the
child's capacity to commit and understand the consequences of the
alleged offence.

[93] In this context, if the Board's criteria of evaluation, as


affirmed by the Appellate Court, are followed, then every case
becomes an open and shut case. If the child is 16 or above and is
capable of committing the offence and understanding the
consequences, that will suffice. I am afraid it ought to be more than
that. The whole endeavour of the JJ Act is to save the child in
conflict with the law from the path of self-destruction and being a
menace to the society. It is reformative, not retributive. Section 15,
I believe, must be read and understood keeping in view the
objective that permeates the whole Act and the spirit it is imbued
with.
[94] That to contain crime, the State must be strict and the
punishment must be harsh is an intuitive assertion; but sometimes
the solution to the crime are counterintuitive. Steven D. Levitt and
Stephen J. Dubner, in their popular book Freakonomics[12], have
hypothesized that the juvenile crime in a few of states of the US has
come down thanks to Roe v. Wade, a judgment of the American
Supreme Court that legalized abortion. Critics apart, there can be
ideas that are worth exploring. It is equally worthwhile, first, to
explore for ideas, instead getting stuck in a predictable, plebian
approach to societal problems.

[95] Let us not forget public opinion is versatile. One day it weeps
for the victims and cries vengeance, sometimes more than the
victims themselves want. The next, it decries prison as a 'school of
crime'.[ 12 ] What Does Neuroscience Say?

[96] "Weathering teenagers' adolescence often means just riding


out the rough seas with them until calmer waters are reached,"
observes the noted neuroscientist Frances E. Jensen (with Amy Ellis
Nutt), under the Chapter Mental Illness, in his book The Teenage
Brain[ 13 ].

Then under the Chapter "Crime and Punishment", he quotes Steven


Drizin of Northwestern University in Chicago, a distinguished legal
scholar, to the effect that, "Juveniles function very much like the
mentally retarded. The biggest similarity is their cognitive deficit.
[Teens] may be highly functioning, but that doesn't make them
capable of making good decisions." Frances E. Jensen et al supply
the justification for that observation: "Teens, we now know, engage
the hippocampus and right amygdala when faced with a threat or a
dangerous situation-this is why they are prone to being emotional
and impulsive-whereas adults engage the prefrontal cortex, which
allows them to more reasonably assess the threat. We know that
the risk factors for teens committing violent acts include seeing
violence and being the victims of it themselves."

[97] Frances E. Jensen et al endorse the view of Valerie Reyna, a


teacher and researcher in the Department of Human Development
at Cornell University, who summed up the competence of
adolescents in the juvenile justice system when she wrote in a 2006
journal article: "In the heat of passion, in the presence of peers, on
the spur of the moment, in unfamiliar situations, when trading off
risks and benefits favors bad long-term outcomes, and when
behavioral inhibition is required for good outcomes, adolescents are
likely to reason more poorly than adults do."

[98] Merely on the premise that the offence is heinous and that it
lends to the societal volatility of indignation, we are bracing for
juvenile recidivism. Retributive approach vis- -vis juveniles needs to
be shunned unless there are exceptional circumstances, involving
gross moral turpitude and irredeemable proclivity for the crime.

Condemned, any juvenile is going to be a mere numeral in prison


for a lifetime; reformed, he may redeem himself and may become a
value addition to the Society. Let no child be condemned unless his
fate is foreordained by his own destructive conduct. For this, a
single incident not revealing wickedness, human depravity, mental
perversity, or moral degeneration may not be enough. Just deserts
are more than mere retribution.

[99] The Society, or restrictively the aggrieved person, views any


problem ex post; it wants a wrong to be righted or remedied to the
extent possible. The courts, especially the Courts of Record, view
the same problem ex ante. "It involves looking forward and asking
what effects the decision about this case will have in the future"[ 14
]. To be more accurate, the courts balance both perspectives. I
reckon Section 15 of the Act requires us to balance both the
competing perspectives: ex post and ex ante.

[100] So I conclude that the Board, in the first place, has


mechanically relied on the Social Investigation Report and MH
Report, without analysing the older adult's case on its own.
Similarly, the Appellate Court has also endorsed the order in appeal,
without exercising the powers it has under Section 101. So both fail
the legal scrutiny; they have failed to exercise the jurisdiction
vested in them. About the Younger Juvenile:

[101] Given the reversal of findings for the older juvenile, I reckon
the younger juvenile's case requires little cogitation. Suffice it to
say, that his role in the alleged crime came after the baby's death.
In that context, both the Board and the Appellate Court have felt
that he would be chargeable under Section 201 of IPC. That applied,
it does not amount to heinous crime.

[102] Prima facie Section 302 IPC does not apply to the younger
juvenile. And how Section 34 IPC applies is too premature a
question that needs no answer right now. In Virendra Singh v. State
of M.P., 2010 8 SCC 407, the Supreme Court has held that vicarious
or constructive liability under Section 34 IPC can arise only when
two conditions stand fulfilled: the mental element or the intention to
commit the criminal act conjointly with another or others; and the
actual participation in one form or the other in the commission of
the crime. Thus, Section 34 concerns the question of constructive
criminality, and it is a matter of trial. Then, Section 385 attracts a
maximum sentence of two years. Finally remains Section 201.

[103] As we have already discussed, a heinous offence is the


offence for which the minimum punishment is seven years or more.
But under Section 201, seven years is the maximum punishment,
not the minimum. Therefore, the ratio of Saurabh Jalinder Nangre
can be applied.

[104] Even the Board and the Appellate Court have held that the
younger juvenile must be tried only a juvenile. And that finding
needs no interference.

Result:

Appeal No.1153 of 2018 is dismissed; WP No.1346 of 2018 is


allowed, as a result of which the Order, dt. 21st February 2018
passed by the learned Special Judge for Greater Mumbai in Criminal
Appeal No. 680 of 2017 is set aside. So the older juvenile, too, shall
be tried as a juvenile. No order on costs.

1. Paraphrased: I wish that the ages between sixteen and


twentythree didn't exist, or that young men would spend them
asleep. Otherwise there is nothing between those ages but getting .
. . acting dishonestly toward their elders, stealing, fighting . . .
2. As quoted in Trial of Juveniles as Adults, Kevil Hile, Chelsea
House Publishers, Philadelphia, Ed.2003, pp.21 and 22.

3. Judging Juveniles, Prosecuting Adolescents in Adult and Juvenile


Court, by Aaron Kupchik, New York University Press, Ed. 2006. P.4

4. Anthony Platt's The Child Savers, as quoted in Judging Juveniles,


P.97

5. Harvard University Press, Ed. 2008, Pp.4-6

6. Id., p.--------

7. Id., p.82

8. Id., p.243

9. English Legal System, Catherine Elliott and Frances Quinn, 17th


Ed., Pp.514-15

10. Reforming Juvenile Justice, Josine Junger-Tas Frieder D nkel


Editors, Springer, Ed. 2009

11. Source: Dean J. Champion and G. Larry Mays, Transferring


Juveniles to Criminal Courts: Trends and Implications for Criminal
Justice, Praeger, 1991, as quoted in Trial of Juveniles as Adults,
p.19

12. Children Who Kill, Edited by Paul Cavadino, Waterside Press in


association with British Juvenile and Family Courts Society,
Ed.2002, p.173

13. HarperCollins Publishers, eBook

14. The Legal Analyst, Ward Farnsworth, The University of Chicago


Press, Ed. 2007. P. 5
HIGH COURT OF DELHI

X MINOR THROUGH: HIS MOTHER


V/S
STATE OF NCT OF DELHI

Date of Decision: 01 May 2019

Citation: 2019 LawSuit(Del) 1862

Hon'ble Judges: Sunil Gaur

Case Type: Criminal Revision Petition; Criminal Miscellaneous


Application

Case No: 351 of 2019; 6252 of 2019

Subject: Criminal, Motor Vehicle

Acts Referred:
INDIAN PENAL CODE, 1860 SEC 304A, SEC 201, SEC 279, SEC 304,
SEC 337
MOTOR VEHICLES ACT, 1988 SEC 34, SEC 181, SEC 187, SEC 4
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2015 SEC 2(33), SEC 15

Final Decision: Petition disposed

Advocates: Ramesh Gupta, Anant Kumar, Asthana, Ashish Kumar,


Z Ishardi, Neelam Sharma, Sarnash Gupta

Reference Cases:
Cases Referred in (+): 1
Judgement Text:-

Sunil Gaur, J

[1] Juvenile Justice Board vide order of 4th June, 2016 upon
conducting preliminary assessment under Section 15 of Juvenile
Justice (Care and Protection of Children) Act, 2015 has concluded
that there is need for trial of petitioner-CCL Mrigank as an adult, as
the offence committed by petitioner is heinous one.

[2] Appeal against aforesaid order of 4th June, 2016 also stands
rejected vide impugned order of 11th February, 2019.

[3] Learned Senior Counsel for petitioner draws the attention of this
Court to Section 2(33) of Juvenile Justice (Care and Protection of
Children) Act, 2015 to point out that heinous offence is the one for
which minimum punishment provided under the IPC or any other
law in force, is for seven years or more.

[4] Attention of this Court is drawn to Section 304 of IPC and


reliance is placed upon decisions of High Court of Bombay in
Crl.W.P.(C.) No. 4044/2018 titled as 'Saurabh Jalinder Nangre &
Ors. Vs. State of Maharashtra,2018 SCCOnlineBom 6295 and the
decision of High Court of Patna in 'Rajiv Kumar Vs. State of Bihar,
Criminal Appeal (SJ) No. 1716 of 2018. Reliance is also placed upon
the judgment of 21st May, 2018 of Punjab & Haryana High Court in
'Bijender Vs. State of Haryana and another, to submit that the
offences which do not carry minimum sentence, are not to be tried
by the Children Court and have to be tried by Juvenile Justice
Board.

[5] On the contrary, learned Additional Public Prosecutor for


respondent-State supports the impugned order and submits that the
decisions relied upon are distinguishable and the offence under
Section 304 of IPC is punishable with imprisonment for life and
since the offence committed is a heinous one, therefore it has to be
tried by the Children Court.

[6] Upon hearing and on perusal of impugned orders and the


decisions cited, I find that offence under Section 304 of IPC,
consists two parts. Section 304 (Part-I) is punishable with
imprisonment for life or imprisonment which may extend upto 10
years with fine, if it is found that accused had intended to cause
death. So far as Section 304 (Part-II) of IPC is concerned, it carries
punishment upto 10 years or fine or both, if the act is done with
knowledge that it is likely to cause death but without any intention
to cause death.

[7] A bare reading of Section 304 of IPC makes it clear that it does
not carry any minimum punishment. Section 2(33) of Juvenile
Justice Board clearly provides that heinous offence would be the one
for which the minimum punishment of seven years is provided.

[8] As per final report filed by IO, CCL Mrigank had violently hit
Siddharth Sharma, a pedestrian, while driving his Mercedez Car No.
DL-2F-CM-3000 on 4th April, 2016 at 08:50 p.m., near red light
traffic signal, Sham Nath Marg, Civil Lines, Delhi. The injured
Siddharth Sharma was rushed to hospital with critical injuries but he
succumbed to the injuries during treatment. Initially, the FIR was
registered for the offence under Section 279/337 of IPC. Upon the
death of victim Siddharth Sharma, the investigation was conducted
for the offence under Section 279/304A of IPC and CCL Mrigank was
produced before the Board on 8th April, 2016.

[9] In the instant case, the charge-sheet filed against petitioner is


for the offence under Sections 304/201 of IPC and Sections 4/181 &
Sections 34/187 of Motor Vehicle Act, 1988 which does not carry
minimum sentence. It is a moot point as to whether the offence
committed by petitioner comes within the ambit of Part-I or Part-II
of Section 304 IPC. It is also open to petitioner to urge before the
court concerned that the offence committed by petitioner comes
within the ambit of Section 304(A) IPC.

[10] Be that as it may. Since the offence committed by petitioner


does not come in the category of heinous offence, therefore, the
impugned orders cannot be sustained and are accordingly set aside.

[11] This petition and the application are accordingly disposed of,
while refraining to comment on the merits of this case, lest it may
prejudice either side before the concerned Court.
HIGH COURT OF RAJASTHAN (D.B.)

DURGA W/O BHERULAL MEENA


V/S
STATE OF RAJASTHAN

Date of Decision: 15 April 2019

Citation: 2019 LawSuit(Raj) 180

Hon'ble Judges: Sandeep Mehta, Vinit Kumar Mathur

Eq. Citations: 2019 CrLJ 2720

Case Type: Criminal Appeal

Case No: 27 of 2019

Subject: Criminal

Acts Referred:
INDIAN PENAL CODE, 1860 SEC 302, SEC 304
CODE OF CRIMINAL PROCEDURE, 1973 SEC 374(2), SEC 313
EVIDENCE ACT, 1872 SEC 27
SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF
ATROCITIES) ACT, 1989 SEC 3(2)(I), SEC 3(2)(II), SEC 3(2)(VII)
SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF
ATROCITIES) RULES, 1995 R 12(4)
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2015 SEC 49, SEC 15(3), SEC 107(2), SEC 19(3), SEC 15, SEC 2,
SEC 46, SEC 10, SEC 3
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) MODEL
RULES, 2016 R 10A, R 10A(4), R 10A(3), R 10A(2), R 86(5)

Advocates: Ramesh Purohit, J P S Choudhary


Reference Cases:
Cases Referred in (+): 8

Judgement Text:-

Sandeep Mehta, J

[1] The appellant Smt. Durga (date of birth 03.08.1998) has been
convicted and sentenced as below vide judgment dated 12.12.2018
passed by the learned Sessions Judge, Pratapgarh, in Sessions Case
No.115/2016:

Fine Default
Offences Sentences Fine
sentences

Under Six Months'


Life
Section 302 Rs.5,000/- additional simple
Imprisonment
IPC Imprisonment

[2] Being Aggrieved Of Her Conviction And Sentences, The


appellant has preferred the instant appeal under Section 374(2)
Cr.P.C.

[3] Facts in brief are that the complainant Unkar (PW-3) lodged a
written report (Ex.P/3) at the Police Station Suhagpura on
16.05.2016 alleging inter alia that on the previous evening i.e. on
15.05.2016, his son Bherulal and his daughter-in-law Durga
quarelled with each other because Durga had not prepared food.
They were in a habit of fighting with each other on small issues. The
informant took dinner and after pacifying the spouses, he went
towards the naala for easing himself. Thereafter, he went to meet
Heera. He returned home at 11 o' clock. Thinking that the spouses
would have gone to sleep in their room, he put up a cot outside the
house and went to sleep. In the night at about 12 o' clock, he again
heard the husband and wife quarelling with each other upon which,
he woke up and saw Durga having an axe in her hand with which,
she had assaulted his son Bherulal on his neck. Bherulal was lying in
the Baramada in a bleeding condition. Upon seeing Unkar, Durga
threw the axe down and went away. He checked his son for sign of
life but found that he had passed away. He alleged that his
daughter-in-law Smt. Durga had killed Bherulal by inflicting an axe
blow on his neck. On the basis of this report, an FIR No.51/2016
was registered at the Police Station Suhagpura and investigation
commenced. The appellant herein was arrested. Her date of birth as
entered in the school record was 03.08.1998 and thus, being a
juvenile, she was presented before the Principal, Juvenile Justice
Board, Pratapgarh.

[4] It may be stated here that despite the appellant, being a


'female' child in conflict with law, at no stage of the case, was any
female police officer associated with the investiation.

[5] Be That As It May. After Concluding The Formalities Of


investigation, the investigating officer proceeded to file a charge-
sheet against the appellant before the Principal Magistrate, Juvenile
Justice Board, Pratapgarh on 27.06.2016 for the offence under
Section 302 IPC.

[6] Since the child was arrainged for a heinous offence as defined
under Section 2, the Juvenile Justice Board decided to hold an
enquiry under Section 15 of the The Juvenile Justice (Care and
protection of Children) Act, 2015 (hereinafter referred to as 'the
Juvenile Justice Act') to consider whether the child should be tried
as an adult. After the statements of two witnesses had been
recorded in the purported inquiry under Section 15 of the Act of
2015, the learned Principal Magistrate, Juvenile Justice Board
proceeded to pass an order dated 22.08.2016 observing that the
child in conflict with law appeared to be posessed of the mental and
physical capability to commit a henious offence and that she was in
a position to understand the consequences of her act and
accordingly directed that the child should be subjected to medical
examination through a psychiatrist. The child was sent to the MBH
Hospital, Udaipur wherein, she was admitted in the Psychiatry
Ward. The Medical Board comprising of three Professors of which,
one was from the psychiatry department, carried out the mental
and physical assessment of the child and issued its report dated
30.08.2016 in the following terms:

"Members of the board examined her after admission in psychiatry


ward from 27th Aug to 30th Aug 2016 vide indoor reg. no.20588.
On mental state examination she was found to be cooperative and
communicative, no excitement or retardation, no inappropriateness
of mood, hallucinations and delusions were not evident and her
higher mental functions are intact and insight is also present. She is
aware of the act done by her, she is aware about the consequences
and according to her she had conflict with her husband from last 3
yrs off and on and on the day of crime they were both fighting
physically and verbally."

[7] The Principal Magistrate, upon receiving the record, proceeded


to pass an order dated 05.09.2016 observing that as per the secret
letter dated 29.08.2016 received from the Probation Social Welfare
Officer, Social Justice and Empowerment Department, Pratapgarh.,
the child accused was feigning mental impairment after killing her
husband whereas, the Medical Board's report indicated that she was
physically and mentally able person.

[8] Based on this report of the Medical Board, the learned Principal
Magistrate, Juvenile Justice Board vide the final order dated
05.09.2016 under Section 15 of the Juvenile Justice Act and
directed that the case of the apellant, who was a child in need of
care and protection above the age of 16 years on the date of
incident, was transferred to the Court of Sessions, Pratapgarh for
trial as an adult.

[9] We have carefully perused the order-sheets of proceedings


drawn up by the learned Principal Magistrate of the Juvenile Justice
Board and find that in none of these proceedings before issuance of
the final order dated 05.09.2016 whereby, the learned Principal
Magistrate, directed that the assessment of the child had been
made under Section 15 of the Juvenile Justice Act and transmitted
her case to the Sessions Judge, Pratapgarh for trial, was the child
provided any effective opportunity of hearing or legal
representation.
[10] Be that as it may. Having appreciated the proceedings of
inquiry conducted by the Juvenile Justice Board and the Medical
Report, referred to supra, we are of the firm opinion that the same
do not stand to scrutiny on the anvil of the mandatory requirements
of the Juvenile Justice Act and Rule 10A of The Juvenile Justice
(Care and Protection of Children) Model Rules, 2016 (hereinafter
refered to as 'the Model Rules, 2016') which are reproduced herein
as below for the sake of ready reference:

"Section 15. Preliminary assessment into heinous offences by


Board.- (1) In 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, 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 the provisions of subsection
(3) of section 18:

Provided that for such an assessment, the Board may take the
assistance of experienced psychologists or psycho- social workers or
other experts.

Explanation. For the purposes of this section, it is clarified that


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

(2.) Where the Board is satisfied on preliminary assessment that the


matter should be disposed of by the Board, then the Board shall
follow the procedure, as far as may be, for trial in summons case
under the Code of Criminal Procedure, 1973:

Provided that the order of the Board to dispose of the matter shall
be appealable under sub-section (2) of section 101:

Provided further that the assessment under this section shall be


completed within the period specified in section 14."
"Rule 10 A. Preliminary assessment into heinous offences by Board.-
(1) The Board shall in the first instance determine whether the child
is of sixteen years of age or above; if not, it shall proceed as per
provisions of section 14 of the Act.

(2) For the purpose of conducting a preliminary assessment in case


of heinous offences, the Board may take the assistance of
psychologists or psycho-social workers or other experts who have
experience of working with children in difficult circumstances. A
panel of such experts may be made available by the District Child
Protection Unit, whose assistance can be taken by the Board or
could be accessed independently.

(3)Whilemakingthepreliminaryassessment,the child shall be


presumed to be innocent unless proved otherwise.

(4) Where the Board, after preliminary assessment under section 15


of the Act, passes an order that there is a need for trial of the said
child as an adult, it shall assign reasons for the same and the copy
of the order shall be provided to the child forthwith."

(Emphasis supplied)

[11] As per the material available on record, the appellant, who


was married (at the tender age of about 14 years) to the deceased
for the last three years, was admittedly facing marital strife on a
continued basis and thus, unquestionably, she was a child in difficult
circumstances.

[12] As is apparent from Sub-Rule 2 of Rule 10A of the Model


Rules, 2016, the assistance of the psychologists or psycho-social
workers or other experts, which the Board requires for carrying out
the preliminary assessment, should have experience of working with
children in difficult circumstances. However, neither the assistance
of any such psychologist was sought for nor any such psychologist
or child psychologist having special experience of working with
children in difficult circumstances was associated in the
proceedings. Furthermore, we do not approve of the procedure
adopted by the Juvenile Justice Board while making the preliminary
assessment inasmuch as, the principles of natural justice were not
adhered to and without any justification and without providing legal
assitance, the child was sent and admitted in the psychiatry
department of the MBH Hospital, Udaipur on the basis of some
random secret report (copy whereof was not provided to her). Be
that as it may. Rule 10A(4) provides that where the Board, after
preliminary assessment under section 15 of the Act, passes an order
that there is a need for trial of the child as an adult, it shall assign
reasons for the same and the copy of the order shall be provided to
the child forthwith. However, a plain reading of the order dated
05.09.2016 indicates that the Board did not provide a copy thereof
to the child.

[13] On going through the above order, it is crystal clear that the
reasons assigned by the Board in the order dated 05.09.2016 for
treating the child delinquent to be fit to be tried as an adult under
Section 15 of the Juvenile Justice Act are not cogent, germane and
compliant with the requirements of law. The order dt. 05.09.2016 is
reproduced herein below for the sake of ready reference:
[14] Considered in light of 'Section 15 of the Act and Rule 10A of
the Model Rules', we are of the firm opinion that the order dated
05.09.2016 does not stand to scrutiny on the anvil of these
mandatory statutory provisions. While undertaking this exercise, the
Principal Magistrate failed to advert to the circumstances in which,
the offence took place and did not adhere to the presumption of
innocence in favour of the child in conflict with law and passed the
order dated 05.09.2016 in an absolutely mechanical and laconic
manner. In our understanding while invoking Section 15 of the Act
and directing the trial of the child as an adult, the Board must
remain alive to the situation that the offence had been committed
by the child in such a manner which gives rise to an inference that
the act was done in a cold blooded or calculated manner which does
not co-relate to the child like behaviour of the offender. No such
reflection is visible in the order dated 05.09.2016. The order must
refer to the circumstances which led to the commission of offence
and there must be an active consideration of the fact whether, the
child was driven to commit the offence because of the conduct of
the victim. The Medical Board's report dated 30.08.2016 is referred
to in an absolutely casual manner in the order. It is relevant to
mention here that when the child was subjected to interrogation
during the course of investigation, she categorically mentioned that
she had contracted a love marriage with her husband Shri Bherulal
the deceased. After some time, Bherulal started bearing a suspicion
in his mind that illicit relations had developed between Durga and
his father Unkar. He used to beat her and also treated her like an
animal every other day after consuming liquor. In the night of
14.06.2016, Bherural consumed liquor and assaulted her badly.
Thereafter, he poured kerosene on her body, on which, she ran
away and slept in the bada. On the fateful night i.e. 15.05.2015,
she was again badly thrashed and thus she became infuriated. In
these difficult circumstances and finding Bherulal to be in an
inebriated condition, she gave him a single blow with an axe which
proved fatal. Manifestly, the tenor of this statement coupled with
the allegations levelled in the FIR indicate that the husband and wife
were not keeping on good terms and used to fight with each other
on trivial issues. The appellant had been married to the deceased at
a very tender age and thus, without any doubt, she cannot be
attributed with the mental ability or maturity to understand and
weigh the implications of the act which she committed on the spur
of the moment after being traumatized by the cruel behaviour of
her spouse. The anger of a young girl who is harassed, humiliated
and treated cruelly in her matrimonial home and that too by the
man with whom, she contracted a love marriage, can very well be
understood because the doors of her maternal home are closed for
her.

[15] In this background, we are of the firm opinion that the


admitted circumstances as reflected from record did not warrant
that the appellant's case should have been sent to the Sessions
Judge, Pratapgarh for trial as an adult under Section 15 of the
Juvenile Justice Act.

[16] Be that as it may. Since the appellant was not provided the
copy of the order dated 05.09.2016, manifestly, she was deprived
of the opportunity to assail the same in appeal. The Sessions Judge
Pratapgarh, framed charge against the appellant for the offence
under Section 302 IPC vide order dated 09.02.2017. She pleaded
not guilty. The prosecution examined as many as 12 witnesses in
support of its case. The appellant, upon being questioned and
confronted with the prosecution allegations in her statement under
Section 313 Cr.P.C., denied the same and claimed to have been
falsely implicated. However, no evidence was led in defence. Upon
conclusion of the trial, the learned Sessions Judge, proceeded to
convict and sentence the appellant as above by judgment dated
12.12.2018 immediately whereafter, the appellant was sent to the
Central Jail Udaipur to suffer the sentence.

[17] We have gone through the entire prosecution evidence


recorded during the trial. PW-1 Ramesh Chandra testified that
Durga was married to Bherulal. She was not conceiving and the
husband and wife used to quarrel with each other on this issue. The
witness heard that Durga had hit Bherulal with an axe. The
significant fact which comes out from the evidence of this witness is
that Durga (who was a minor child of about 16-17 years as on the
date of the incident) was being pressurised by her husband (the
deceased) for bearing a child. The deceased husband was probably
carrying a grudge in his mind that the appellant was not bearing a
child and thus, he was pressurising her on this count. The appellant
had every right to resist the same because she was not mature
enough, mentally and physically, to bear a child. Thus, weighed on
a scale of emotions, the grievance of the appellant was quite
genuine and the deceased had no justification in pressurising her on
this issue.

[18] Pw-2 Shanker Lal is a witness who reached the spot after the
incident had occurred. Unkar told him of the incident.

[19] Pw-3 Unkar, who was the first informant, testified in his
evidence that the husband and the wife used to quarrel with each
other because Durga was not bearing a child. She was also
burdened with the responsibility of doing the household jobs and
thus also, she was feeling aggrieved. The witness repeated the
allegations set out in the FIR and alleged that he went inside the
house in the night at about 12 o' clock and saw Durga having an
axe in her hand. She ran away on seeing the witness. Bherulal was
lying dead.

[20] Pw-5 Naru, PW-6 Dharmchand and PW-7 Sunil claimed to


have reached at the spot after the incident took place. Some of
them were associated in the proceedings of seizure etc. undertaken
at the spot.

[21] Pw-8 Dr. Ramesh Chandra Shukla conducted postmortem on


the body of the deceased Bherulal and noticed a solitary incised
wound on his neck which proved fatal. The doctor issued the
postmortem report (Ex.P/10).

[22] Pw-9 Constable Maya was posted at the Police Line,


Pratapgarh. She was associated in the detention of Durga. She
alleged that Durga gave an information under Section 27 of the
Evidence Act in her presence. However, in cross-examination, she
admitted that the weapon of offence was recovered while lying at
the place of the incident.

[23] Pw-10 Omveer Singh, Constable gave evidence regarding the


seizure of the axe and the site inspection proceedings.
[24] Pw-11 Deepak Kumar was posted as the SHO of the Police
Station Suhagpura, District Pratapgarh at the relevant time. He
conducted the entire investigation of the matter and filed the
charge-sheet against the appellant.

[25] Pw-12 Shivlal was associated as motbir in the proceedings


pertaining to the detention of the appellant Durga.

[26] On a perusal of this entire calender of witnesses, it is clear


that not a single officer from the Special Juvenile Police Unit was
ever associated with the investigation. The Constable Maya was only
called to attest the detention memo prepared by the SHO Deepak
Kumar and therefore, it is manifest that the investigation of the
case was not carried out in accordance with the mandatory
requirements of the Juvenile Justice Act and the Model Rules which
aspect shall be elaborated hereinafter.

[27] It is noteworthy that during the course of the trial and no


sooner, the appellant crossed the threshold of 18 years, the learned
Sessions Judge, Pratapgarh passed an order dated 19.08.2017
directing that she be sent to the District Jail, Pratapgarh. Ex-facie,
the said order is also grossly illegal and contrary to the mandate of
Section 10 of the Juvenile Justice Act which prohibits that no child
alleged to be in conflict with law shall be placed in a police lock-up
or lodged in a jail. After crossing the threshold of 18 years, the child
accused had to be sent to the place of safety as per Section 19(3)
read with Section 49 of the Juvenile Justice Act and could not have
been transferred to the District Jail. We hold that on account of the
child being sent to the District Jail, Pratapgarh contrary to the
statutory prohibition, all further proceedings of the trial are vitiated.

[28] Section 107(2) of the Juvenile Justice Act reads as below:

"107(2) To co-ordinate all functions of police related to children, the


State Government shall constitute Special Juvenile Police Units in
each district and city, headed by a police officer not below the rank
of a Deputy Superintendent of Police or above and consisting of all
police officers designated under sub-section (1) and two social
workers having experience of working in the field of child welfare, of
whom one shall be a woman."
[29] Thus, constitution of a Special Juvenile Police Unit in each
district head by a police officer not below the rank of a Dy. S.P. with
two social workers having experience of working in the field of child
welfare of whom one shall be a woman, is a mandate of law.

[30] Rule 86(5) of the Model Rules reads as below:

"86(5).-(5) The police officer interacting with children shall be as far


as possible in plain clothes and not in uniform and for dealing with
girl child, woman police personnel shall be engaged."

[31] As per Rule 86(5) of the Model Rules, it is a mandate of law


that for dealing with the girl child, woman police personnel shall be
engaged. However, on a perusal of the entire record, it is clear that
neither was the case handled by the Special Juvenile Police Units
nor any woman police personnel was ever associated for dealing
with the case of the child appellant. In this background, the entire
procedure adopted by the investigating officer while investigating
the case against the appellant suffers from an irregularity falling
short of gross illegality. We are of the firm view that a prejudice
caused to the child offender owing to non- association of a female
police officer in the procedure of investigation goes to the root of
the matter.

[32] In view of the above discussion made herein above, we


conclude as below:

(i) that the entire investigation is vitiated for the reason that no
female police officer was associated in the investigation against
female child offender. Furthermore, the investigation was not
conducted by the Special Juvenile Police Unit as warranted by
Section 107(2) of the Juvenile Justice Act;

(ii) that the appellant did not murder her husband in furtherance of
any pre-conceived design or in a cold calculated manner, and thus
there was no justification for her trial as an adult by a Sessions
Court by virtue of Section 15 of the Juvenile Justice Act;
(iii) that the Principal Magistrate failed to adhere to the mandatory
requirements of Section 15 of the Act while holding the enquiry and
making the assessment;

(iv) that no legal assistance/ effective opportunity of hearing was


provided to the appellant child during the preliminary assessment
made by the Juvenile Justice Board under Section 15 of the Act and
thus also, these proceedings are vitiated;

(v) that the preliminary assessment order is also vitiated for the
reason that the appellant was unjustly kept confined in the
psychiatry ward of the Hospital and because no psychologist or
psycho-social worker having experience of working with children in
difficult circumstances (as mandated by Section 15(3) of the
Juvenile Justice Act), was associated during the enquiry conducted
under Section 15 of the Juvenile Justice Act;

(vi) While holding the inquiry, the Juvenile Justice Board, failed to
adhere to the principle that the child shall be presumed to be
innocent unless proved otherwise as mandated by Section 3 of the
Juvenile Justice Act read with Rule 10A(3) of the Model Rules, 2016.
No consideration of this principle is reflected in the order and thus,
the illegality is incurable and goes to the root of the matter;

(vii) copy of the order passed under Section 15 of the Act was not
provided to the juvenile of thus breaching the mandate of Rule 10A
of the Model Rules of 2016;

(viii) that the under-trial child was sent to the District Jail,
Pratapgarh vide order dated 19.08.2017 and thus, was treated in
gross contravention of the mandate of Section 19(3) read with
Section 46 of the Act of 2015 thereby vitiating the entire
proceedings before the Sessions Court.

(ix) The child suffered incarceration from 16.05.2016 to 11.02.2019


on which date this Court suspended the sentences awarded to her
and thus, she has undergone a custodial period of nearly two years
and seven months in a prison which course of action is totally
prohibited by law.
[33] Henceforth, the above observations shall be considered to be
guidelines in considering cases of juveniles and shall be followed in
the letter and spirit.

[34] In arguendo, and considering the facts and circumstances of


the case at hand, even if is assumed for a moment that the Juvenile
Justice Board was justified in treating the appellant fit to be tried as
an adult under Section 15 of the Juvenile Justice Act then too, she
could at best be held guilty of the offence under Section 304 II IPC
and being below 21 years of age, she would be entitled to benefit of
probation. Thus, looking to the custodial period of almost three
years already suffered by the appellant, there is no justification to
remand the matter to the Sessions Court, Pratapgarh for a fresh
trial by strictly adhering to as per the provisions of the Juvenile
Justice Act.

[35] We therefore accept the appeal; set aside the impugned


judgment dated 12.12.2018 passed by the learned Sessions Judge,
Pratapgarh, in Sessions Case No.115/2016 and acquit the appellant
of the charge under Section 302 IPC. The sentences awarded to the
appellant by the learned Sessions Judge has already been
suspended vide order dated 11.02.2019 and she is on bail. Her bail
bonds are discharged.

[36] Since we have concluded that the procedure of investigation


conducted against the child in conflict with law was suffering from
patent irregularity and as, her incarceration in prison was totally
unwarranted resulting into gross violation of fundamental rights of
the appellant who was minor triable girl and was denied excess to
justice without any rhyme and reason, we feel that the appellant
deserves to be compensated appropriately.

[37] Hon'Ble the Delhi High Court in case case of Court On Its Own
Motion vs. Dept. of Women and Child Development and Ors., 2013
3 RCR(Cri) 382, considered the impact of sending a juvenile to
prison and held that such a course of action amounts to deprivation
of personal liberty on multiple aspects and is in breach of
fundamental rights guaranteed under Article 21 of the Constitution
of India. The Hon'ble Court observed as below:
"10. Today, the concept of personal liberty has received a far more
expansive interpretation. The notion that is accepted today is that
liberty encompasses these rights and privileges which have long
been recognized as being essential to the orderly pursuit of
happiness by a free man and not merely freedom from bodily
restraint. There can be no cavil in saying that lodging juveniles in
adult prisons amounts to deprivation of their personal liberty on
multiple aspects.

11. In this backdrop, lodging of juveniles in the prison clearly


amounts to violation of their fundamental rights guaranteed under
Article 21 of the Constitution of India; contrary to the provisions of
The Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as the JJ Act) apart from adverse
psychological impact on these children...."

[38] The Hon'ble Bombay High Court had the occasion to consider
the aspect of award of compensation in an almost similar situation
in the case of Parbatabai Sakharam Taram vs. State of Maharashtra
& Ors., 2006 CrLJ 2202 and held as below:

"20. The learned Counsel appearing for the petitioner has placed
reliance for the purpose of seeking compensation against the State
on the two decisions of this Court. The first being rendered in the
case of Rajeev Shankarlal Parmar and Anr. v. Officer-in-Charge,
Police Station Malad, Mumbai and Ors., 2003 5 MhLJ 820 and after
considering the case Their Lordships found that the petitioner
Rajeev who was a juvenile was arrested and detained in prison by
the State and found that he was entitled for compensation. The
relevant part of the reported judgment in Rajeev's case aptly sums
up the case for which the petitioner has knocked the doors of this
Court and for the said purpose we are reproducing para Nos. 15 to
21 of the said Judgment as under :-

15. The learned Counsel for the petitioners in this connection


referred to two decisions of the Hon'ble Supreme Court in Rudal
Shah v. State of Bihar, 1983 CrLJ 1644 : MANU/SC/0380/1983 and
Bhim Singh v. State of J. and K., 1986 CrLJ 192 :
MANU/SC/0064/1985. She also relied upon a decision of the
Division Bench of this Court (Aurangabad Bench) in Baban Khandu
Rajpur v. State of Maharashtra and Ors., 2002 AllMR(Cri) 1373. In
Bahari Khandu Rajput, though the person was kept in illegal custody
only for a period of two and half days, the Court awarded an
amount of Rs, 10,000/- to the petitioner therein which was ordered
to be paid by the State of Maharashtra. It was, therefore, submitted
that in the facts and circumstances, an amount of Rs. 10,000/- per
month may be awarded by way of compensation.

16. Considering the facts and circumstances, however, that an


offence had been registered against the first petitioner and as
stated by the complainant, the accused was of 22 years age, who
alleged to have committed offence punishable under Sections 302
and

307 of the Indian Penal Code, and according to the Police Officer,
the accused himself had stated his age to be 20 years at the time of
arrest (which was disputed by the accused) coupled with the fact
that the order dated 7th March, 2003 could not be implemented in
view of non-availability of police escort, in our considered opinion,
the action cannot be termed mala fide or malicious.

17. In the facts and circumstances, therefore, ends of justice would


be met, if the respondent State is ordered to pay to petitioner No. 1
an amount of compensation of Rs. 15,000/- (Rupees Fifteen
thousand only). Let such amount be paid within a period of three
months from today. Order accordingly.

18. Regarding general guidelines, our attention was invited by the


learned Counsel to three decisions referred to above i.e. Sheela
Bares, Gopinath Ghosh and Bhola Bhagat.

19. In Sheela Barse, the Apex Court stated:

If a child is a national asset, it is the duty of the State of look after


the child with a view to ensuring full development of its personality.
That is why all the statues dealing with children provide that a child
shall not be kept in jail. Even apart from this statutory prescription,
it is elementary that a jail is hardly a place where a child should be
kept. There can be no doubt that incarceration in jail would have
the effect of dwarfing the development of the child, exposing him to
baneful influences, coarsening his conscience and alienating him
from the society. It is a matter of regret that despite statutory
provisions and frequent exhortations by social scientists, there are
still large number of children in different jails in the country as is
now evident from the reports of the survey made by the District
Judges pursuant to our order dated 15th April, 1986. Even where
children are accused of offences, they must not be kept in jails. It is
no answer on the part of the State to say that is has not got enough
number of remand homes or observation homes or other places
where children can be kept and that is why they are lodged in jails.
It is also no answer on the part of the State to urge that the ward in
which the other prisoners are detained. It is the atmosphere of the
jail which has a highly injurious effect on the mind of the child,
estranging him from the society and breeding in him aversion
bordering on hatred against a system which keeps him in jail. We
would therefore like once again to impress upon the State
Governments that they must set up necessary remand homes and
observation homes where, children accused of an offence can be
lodged pending investigation and trial. On no account should the
children be kept in jail and if a State Government has not got
sufficient accommodation in its remand homes or observation
homes, the children should be released on bail instead of being
subjected to incarceration in jail.

The problem of detention of children accused of an offence would


become much more easy of solution if the investigation by the
police and the trial by the Magistrate could be expedited. The report
of survey made by District Judges show that in some places children
have been in jail for quite long periods. We fail to see why
investigation into offences alleged to have been committed by
children cannot be completed quickly and equally why can the trial
not take place within a reasonable time after the filing of the
charge-sheet. Really speaking, the trial of children must take place
in the Juvenile Courts and not in the regular criminal Courts. There
are special provisions enacted in various statutes relating to children
providing for trial by Juvenile Courts in accordance with a special
procedure intended to safeguard the interest and welfare of
children, but, we find that in many of the States there are no
Juvenile Courts functioning at all and even where there are juvenile
Courts, they are nothing but a replica of the ordinary criminal
Courts, only the label being changed. The same Magistrate who sits
in the ordinary criminal Court goes and sits in the Juvenile Court
and mechanically tries cases against children. It is absolutely
essential, and this is something which we wish to impress upon the
State Governments with all the earnestness at our command that
they must set up Juvenile Courts, one in each district, and there
must be a special cadre of Magistrates who must be suitably trained
for dealing with cases against children. They may also do other
criminal work, if the work of the Juvenile Court is not sufficient to
engage them fully, but they must have proper and adequate
training for dealing with cases against Juveniles, because these
cases require a different type of procedure and qualitatively a
different kind of approach.

We would also direct that where a complaint is filed or first


information report is lodged against a child below the age of 16
years for an offence punishable with imprisonment of not more than
7 years, the investigation shall be completed within a period of
three months from the date of filing of the complaint or lodging of
the First Information Report and if the investigation is not
completed within this time, the case against the child must be
treated as closed. If within three months, the charge sheet is filed
against the child in case of an offence punishable with imprisonment
of not more than 7 years, the case must be tried and disposed of
within a further period of 6 months at the outside and this period
should be inclusive of the time taken up in committal proceedings, if
any. We have already held in Hussainara Khatoon v. Home
Secretary, State of Bihar, 1979 CrLJ 1036 : MANU/SC/0119/1979
that the right to speedy trial is a fundamental right implicit in Article
21 of the Constitution. If an accused is not tried speedily and his
case remained pending before the Magistrate or the Sessions Court
for an unreasonable length of time. It is clear that his fundamental
right to speedy trial would be violated unless, of course, the trial is
held upon account of some interim order passed by a superior Court
of the accused is responsible for the delay in the trial of the case.
The consequence of violation of the fundamental right to speedy
trial would be that the prosecution itself would be liable to be
quashed on the ground that it is in breach of the fundamental right.
One of the primary reasons why trial of criminal cases is delayed in
the Courts of Magistrates and Additional Sessions Judges is the total
inadequacy of Judge strength and lack of satisfactory working
conditions for Magistrates and Additional Sessions Judges. There are
Court of Magistrates and Additional Session Judges where the
workload is so heavy that it is just not possible to cope with the
workload, unless there is increase in the strength of Magistrates and
Additional Sessions Judges. There are instances where
appointments of Magistrates and Additional Sessions Judges are
held up for years and the Courts have to work with depleted
strength and this affects speedy trial of criminal cases. The
Magistrates and Additional Sessions Judges are often not provided
adequate staff and other facilities which would help improve their
disposal of cases. We are, therefore, firmly of the view that every
State Government must take necessary measures for the purpose of
setting up adequate number of Courts, appointing requisite number
of Judges and providing number of Judges and providing them the
necessary facilities. It is also necessary to set up an Institute or
Academy for training of Judicial Officers so that their efficiency may
be improved and they may be able to regulate and control the flow
of cases in their respective courts. The problem of arrears of
criminal cases in the Court of Magistrates and Additional Sessions
Judges has assumed rather disturbing proportions and it is a matter
of grave urgency to which no State Government can afford to be
oblivious, but, here, we are not concerned with the question of
speedy trial for an accused who is not a child below the age of 16
years. That is a question which may have to be considered in some
other case where this Court may be called upon to examine as to
what is reasonable length of time for a trial beyond which the Court
would regard the right to speedy trial as violated. So far as a child
accused of an offence punishable with imprisonment of not more
than 7 years is concerned, we would regard a period of three
months from the date of filing of the complaint or lodging of the
First Information Report as the maximum time permissible for
investigation and a period of 6 months from the filing of the charge-
sheet as a reasonable period within which the trial of the child must
be completed. If that is not done, the prosecution against the child
would be liable to be quashed. We would direct every State
Government to give effect to this principle or norm laid down by us
in so far as any future cases are concerned, but so far as concerns
pending cases relating to offences punishable with imprisonment of
not more than 7 years, we would direct every State Government to
complete the investigation within a period of 3 months from today if
the investigation has not already resulted in filing of charge sheet
and if a charge sheet has been filed, the trial shall be completed
within a period of 6 months from today and if it is not, the
prosecution shall be quashed.

We have by our order dated 5th August, 1986 called upon the State
Governments to bring into force and to Implement vigorously the
provisions of the Children's Acts enacted in the various States. But
we would suggest that instead of each State having its own
Children's Act different in procedure and content from the Children's
Act in other States, it would be desirable if the Central Government
initiates Parliamentary Legislation on the subject, so that there is
complete uniformity in regard to the various provisions relating to
children in the entire territory of the country. The Children's Act
which may be enacted by Parliament should contain not only
provision for investigation and trial of offences against children
below the age of 16 years but should also contain mandatory
provisions for ensuring social, economic and psychological
rehabilitation of the children who were either accused of offences or
are abandoned or destitute or lost. Moreover, it is not enough
merely to have legislation on the subject, but it is equally, if not
more, important to ensure that such legislation is implemented in all
earnestness and mere lip sympathy is not paid to such legislation
and justification for non- implementation is not pleaded on ground
of lack of finances on the part of the State. The greatest
recompense which the State can get for expenditure on children is
the building up of a powerful human resource ready to take its place
in the forward march of the nation.

20. In Gopinath, the Court said; "Before we part with this judgment,
we must take notice of a developing situation in recent months in
this Court that the contention about age of a convict and claiming
the benefit of the relevant provisions of the Act dealing with
Juvenile delinquents prevalent in various State is raised for the first
time in this Court and this Court is required to start the inquiry
afresh. Ordinarily this Court would be reluctant to entertain a
contention based on factual averments raised for the First time
before it. However, the Court is equally reluctant to ignore, overlook
or nullify the beneficial provisions of very socially progressive
statute by taking shield behind the technicality of the contention
being raised for the first time in this Court, A way has, therefore, to
be found from this situation not conducive to speedy disposal of
cases and yet giving effect to the letter and the spirit of such
socially beneficial legislation, We are of the opinion that whenever a
case is brought before the Magistrate and the accused appears to be
aged 21 years or below, before proceeding with the trial or
undertaking an inquiry, an inquiry must be made about the age of
the accused on the date of the occurrence. This ought to be more so
where special Acts dealing with Juvenile delinquent are in force. If
necessary, the Magistrate may refer the accused to the Medical
Board or the Civil Surgeon, as the case may be, for obtaining
creditworthy evidence about age. The Magistrate may as well call
upon accused also to lead evidence about his age. Thereafter, the
learned Magistrate may proceed in accordance with law. This
procedure, if properly followed, would avoid a journey up to the
Apex Court and the return journey to the grass-root Court. If
necessary and found expedient, the High Court may on its
administrative side issue necessary instructions to cope with the
situation herein indicated."

21. Another decision on which reliance is placed for the purpose of


claiming compensation for illegal detention of Juvenile has been
rendered in the case of Salim Ikramuddin Ansari and Anr. v. Officer
in Charge, Borivali Police Station, Mumbai and Ors., 2004 4 MhLJ
725 : MANU/MH/0517/2004 wherein Their Lordships after dealing
with the provisions of the Juvenile Justice Act found that the
petitioner was wrongfully confined behind the bar for almost three
years because of sheer negligence, indifference and inhuman
attitude adopted by the authorities and awarded compensation of
Rs. 1 lakh on consideration of the totality of the facts and
circumstances of the case.

23. We have no hesitation to arrive at a conclusion that this is the


case where the State has acted in violation of Articles 21 and 22 of
the Constitution of India and Juvenile Act of 1986 and Juvenile
Justice (Care and Protection of Children) Act, 2000 and its officials
have committed offences punishable Under Section 3 Sub Section
2(i), (ii) and (vii) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and for that the State is bound
to compensate the victim as provided under Rule 12(4) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Rules, 1995 and particularly in respect of Item No. 18 in
the serial number of the schedule, which provides for full
compensation on account of damages or loss or harm sustained in
victimization at the hands of a public servant. Here, we would like to
add -as the original respondent No. 4 having expired, though the
State is not able to proceed against him, it is to prosecute all
concerned police officers who were part of the investigation team
for the offence under Section 3(2)(vii) of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989 but the
State overlooked violation of these provisions of the said Act and it
has failed to prevent atrocities suffered by the petitioner, at the
hands of its officials.

27. Now, the only question which remains to be considered is how


much compensation should be granted to the petitioner. The victim
had been arrested and illegally detained right from the year 1990
when she was of a tender age of 13 years suffered inhumane
torture though the petitioner has not in so many words explained
that in what manner she was tortured to show that it was an insult
to womanhood but one can understand the agony the victim might
have suffered in police custody and, therefore, taking all these facts
and circumstances into consideration in our opinion a sum of Rs.
5,00,000/- (Rs. Five Lakhs) would be reasonable compensation to
which the petitioner is entitled.

28. Therefore, we order the Respondent/ State to pay a sum of Rs.


5,00,000/-(Rs. Five Lakhs) to the petitioner within a period of four
weeks from the date of pronouncement of this judgment along with
costs of the petition which we quantify at Rs. 10.000/-. We further
order and direct the State to conduct a thorough and impartial
inquiry by setting up a Special Investigating Team of the State
C.I.D. headed by I.P.S. Officer not below the rank of D.I.G. and it
should consist of a lady Police Officer not below the rank of
Superintendent "of Police and inquiry should be in the direction of
the arrest and detention of the petitioner and her prosecution in the
three cases. We, by way of abundant caution, would like to observe
that none of the Police officials associated with the inquiry should be
in any manner connected with the investigation of the three cases in
which the petitioner was tried.

[39] Finding the above observations of the Hon'ble Bombay High


Court to be most relevant and germane, we hereby direct that for
the blatant violation of the fundamental rights of the accused
appellant perpetrated by the circumstances notice herein above, the
State of Rajasthan shall make payment of compensation to the tune
of Rs.2,00,000/- to the appellant herein. The amount as aforestated
shall be deposited in a fixed deposit to be invested in the name of
the appellant in a nationalised bank for a period of five years. The
interest of the FDR shall be payable on quarterly basis. The
compensation as directed above shall be deposited in appellant's
name within the next three months. The compliance report shall be
submitted for the Court's perusal on 31.07.2019.

[40] A copy of this judgment be placed before Hon'ble the Chief


Justice for seeking direction of circulation amongst the Principle
Magistrates, Juvenile Justice Boards as well as the Sessions Judges
in the State of Rajasthan.

HIGH COURT OF PUNJAB & HARYANA

BHOLU
V/S
CENTRAL BUREAU OF INVESTIGATION

Date of Decision: 11 October 2018

Citation: 2018 LawSuit(P&H) 1605

Hon'ble Judges: Daya Chaudhary


Eq. Citations: 2019 (1) RCR(Cri) 603

Case Type: Criminal Revision

Case No: 2366 of 2018

Subject: Constitution

Acts Referred:
CONSTITUTION OF INDIA ART 253
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,
2015 SEC 14, SEC 15, SEC 8(3), SEC 3(III), SEC 15(1), SEC 14(3),
SEC 110(1), SEC 3, SEC 18(3), SEC 14(5)(F), SEC 3(XVI)
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) MODEL
RULES, 2016 R 10A, R 9, R 10, R 10(5), R 10A(3), R 14, R 11, R 13,
R 12, R 8

Final Decision: Petition allowed

Advocates: Rupinder Khosla, Sarvesh Malik, Sumeet Goel, Sushil K


Tekriwal, Anupam Singla

Reference Cases:
Cases Referred in (+): 4

Judgement Text:-

Daya Chaudhary, J

[1] The present revision petiton has been filed by petitioner-Bholu


(imaginary name of the child given by the Court) to challenge the
impugned order dated 21.05.2018 passed by the learned Additional
Sessions Judge, Gurugram, upholding order dated 20.12.2017
passed by the Juvenile Justice Board, Gurugram (here-in-after
called as 'the Board'), whereby, the preliminary assessment as
required under the provisions of Section 15 of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (here-in-after called as
'the Act, 2015') has been made.

[2] Briefly, the facts of the case, as made out in the present
petition, are that a child aged about seven years, who was a
student of 2nd Class, was found lying in an injured condition in the
washroom of the school. He was immediately shifted to the hospital,
where, he was declared dead. Initially, the investigation of the case
was conducted by the local police but thereafter, the investigation of
the case was handed over to the Central Bureau of Investigation.
During investigation, it was found that the student of the same
school i.e the petitioner was found to be involved in the commission
of offence, who was more than 16 years of age but less than 18
years. The imaginary name was given to the juvenile, who was in
conflict with law as Bholu. By considering his age as well as physical
and mental fitness, he was to be assessed by the Board as to
whether he could be tried as an adult by the trial Court or not. A
preliminary assessment was done by the Board as per provisions of
Section 15 of the Act, 2015 vide order dated 20.12.2017 by holding
that he was to be tried as an adult in view of provisions of Section
18(3) of the Act, 2015. Said order of assessment made by the
Board was challenged by way of filing appeal before the Additional
Sessions Judge, Gurugram which was dismissed vide order dated
21.05.2018 by upholding the order passed by the Board stating that
there was no illegality and perversity in the order.

[3] Learned senior counsel for the petitioner submits that the
inquiry conducted by the Board before passing the impugned order
as required under sub Section 3 of Section 18 of the Act was not as
per spirit of Section 15(1) of the Act. Only the general questions
were put to the petitioner and no question regarding the offence
committed and consequences thereof were put to him. Learned
counsel also submits that the petitioner was apprehended on
07.11.2017. He and his father were called for normal conversation
to the Office of Central Bureau of Investigation but he was
intimidated, coerced, manhandled and also got separated from his
father during questioning by putting undue influence. The statutory
provisions contained under Section 15 of the Act for conducting
preliminary assessment to assess the mental and physical capacity
of the juvenile, in conflict with law, to commit a heinous offence and
ability to understand the consequences of said offence and also the
circumstances, under which, he allegedly committed the offence,
were not followed. Neither the documents relied upon by the Board
were supplied to the juvenile nor his parents and even the
application submitted by him was dismissed. It is also the argument
of learned counsel for the petitioner that while making the
preliminary assessment, the child/juvenile is presumed to be
innocent unless it is otherwise proved as provided under Rule 10-
A(3) of the Juvenile Justice (Care and Protection of children) Model
Rules, 2016 (here-in-after referred to as 'the Rules, 2016'). The
purpose of preliminary assessment of the juvenile is to find out the
physical and mental capacity of the juvenile, ability to understand
and consequences of the offence committed by the juvenile and also
the circumstances, under which, he had committed the alleged
offence. As per Section 15 of the Act, 2015, the Board can have the
assistance of any psychologist or any other expert. Dr. Joginder
Kairo, Clinical Psychologist, P.G.I.M.S. Rohtak, who conducted two
tests upon the juvenile, suggested that for further assessment, the
juvenile may be sent to the Institute of Mental Health, University of
Health Sciences, Rohtak but no such assistance has been taken in
spite of giving suggestions by the aforesaid doctor. Learned counsel
further submits that the Board has completely ignored not only the
provisions of the Act but Rules as well. The report is based on
inappropriate tests, namely, Coloured Progressive Matrices (CPM)
and Malin's Intelligence Scale for Indian Children (MISIC) meant for
children between the age group of 5-11½ and 5-15, which were
taken as the basis for the determination of the mental capacity of a
child of 16½ years. Learned counsel also submits that this fact was
brought to the notice of the Board as well as the Appellate Authority
but still it was not considered. A specific request was made to cross-
examine the psychologist but such request made by the petitioner
was also rejected. The copies of the reports were not supplied to the
petitioner to cross examine the psychologist and the request was
rejected. It is also the argument of learned counsel for the
petitioner that every child is presumed to be innocent up to the age
of 18 years and he/she has a right to be heard and required to
participate in all the proceedings and decisions affecting his interest
by giving due regard to his/her age and maturity. The juvenile has a
right of privacy and confidentiality which is mandatory to be
maintained but the right of confidentiality and privacy has been mis-
interpreted by the Board as well as by the lower Appellate Court.
Learned counsel also submits that the CBI itself has admitted in the
proceedings before the Board as well as before the Appellate
Authority that no such trained officers were available for
investigation so as to reach to the logical conclusion in view of
special provisions of the Act. The three parameters for making
preliminary assessment i.e the mental and physical capacity, ability
to understand the consequences of the offence and the
circumstances under which the alleged offence has been committed
are necessary to be followed but said parameters have not been
considered/followed as no such finding has been given by the Board
so as to reach to the conclusion that the juvenile was well aware
about the consequences of the offence committed by him and his
mental and physical capacity was such that he was well aware about
the nature of offence and the consequences thereof. The test
conducted to determine the IQ of the juvenile was for the children
up to the age of 15 years and none of the tests conducted were
designed for the children above 15 years of age. Even in those tests
conducted by the Board, the IQ of the petitioner was below normal
i.e 95, which shows that as per said test, the mental age of the
petitioner was not even of 15 years. At the end, learned counsel for
the petitioner submits that even the principles of natural justice
were not followed by both the Courts below as no opportunity was
given to the petitioner or his parents to rebut the reports in
question. A very short period was given to them to go through the
reports but copies thereof even were not supplied to them.

[4] Mr. Sumeet Goel, learned counsel for the respondent-CBI has
raised a preliminary objection that the scope of this Court is very
limited in the revision petition and the orders passed by the Board
as well as the Appellate Court are well reasoned. It cannot be said
that the provisions have not been followed, whereas, all provisions
have been considered while assessing mental and physical capacity
of the petitioner. Copies of all documents were supplied to the
petitioner as well as his parents and hence, it cannot be said that no
documents were supplied to them. By considering the provisions of
the Act, the confidentiality and privacy was required to be
maintained at all levels. The documents and reports of the expert
were shown to the petitioner and his parents. On the basis of
questions put to the petitioner and tests conducted upon him, the
Board has reached to the conclusion that the petitioner was having
an ability to understand the consequences of the offence and his
mental and physical health was assessed with regard to capacity to
commit offence. Not only a detailed discussion was made by giving
a suggestion but the findings were recorded by the Appellate Court
as well which is clear from the judgment itself.

[5] Learned counsel for the respondent-CBI has relied upon the
judgments of Hon'ble the Apex Court in case Ms. Eera through Dr.
Manjula Krippendorf vs State (Govt. of NCT of Delhi) and
another,2017 3 RCR (Cri) 734, M/s Natinal Insurance Co. Ltd. vs
Baljit Kaur and others, 2004 2 SCC 1 and Amit Kapoor vs Ramesh
Chander and another, 2012 4 RCR(Cri) 377 in support of his
arguments.

[6] Learned counsel for the complainant has also re-iterated the
arguments raised by learned counsel for the CBI. He also submits
that the report prepared by the Committee was as per provisions of
the Act and Rules and members of the Committee itself were
experts in the field concerned and there was no violation of any
Rule as well as provisions. The investigation was monitored by the
Court and status/progress report of the investigation was submitted
from time to time. All the documents collected during investigation
are the part of final report and it cannot, therefore, be said that
copies thereof have not been supplied to the petitioner or his
parents. At the end, learned counsel for the complainant submits
that the preliminary assessment is only the first step, which is to be
carried out within the time frame.

[7] Heard the arguments of learned counsel for the parties and
have also perused the impugned orders as well as other documents
available on the file.

[8] The Act of 2015 was enacted for the first time by making
special provisions for dealing with class of children/juveniles, who
are between the age of 16 and 18 years and have allegedly
committed heinous crimes. Separate Provisions i.e Sections 14(3),
14(5)(f), 15 and 18(3) have been enacted in the said legislation so
as to make a special provision regarding the said alleged
delinquents. The legislature in its wisdom has set out three
parameters as provided under Section 15 of the Act, which are
required to be strictly followed and determined so as to arrive at a
conclusion as to whether the child is to be tried as an adult or not.
That exercise is called as 'PRELIMINARY ASSESSMENT'. Said
parameters are as under :-

(i)mental and physical capacity to commit such offence;

(ii)ability to understand the consequences of the offence;

(iii)the circumstances in which he allegedly committed the offence.

[9] Parameters (i) and (ii) are inter-related as the ability to


understand the consequences of the offence would only be there in
case the child has the mental capacity to do so. For assessing the
mental capacity, the Board has been given the liberty to take the
assistance of experienced psychologists or psycho-social workers or
other experts. However, it has been explained that the preliminary
assessment is not a trial. Sections 14(3), 14(5)(f) as well as Section
15 and 18(3) are reproduced as under :-

"Section 14. Inquiry by Board regarding child in conflict with law.

xxx xxx xxx

3. A preliminary assessment in case of heinous offences under


section 15 shall be disposed of by the Board within a period of three
months from the date of first production of the child before the
Board.

xxx xxx xxx

5. The Board shall take the following steps to ensure fair and
speedy inquiry, namely :-

xxx xxx xxx

f. inquiry of heinous offences -


i. For child below the age of sixteen years as on the date of
commission of an offence shall be disposed of by the Board under
clause (e);

ii. For child above the age of sixteen years as on the date of
commission of an offence shall be dealt with in the manner
prescribed under Section 15.

Section 15 :- Preliminary assessment into heinous offences by


Board -

(1) In 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, ability to
understand the consequence of the offence and the circumstances
in which he allegedly committed the offence, and may pass an order
in accordance with the provisions of sub-section (3) of Section 18.

Provided that for such an assessment, the Board may take the
assistance of experienced Psychologist or psycho-social workers or
other experts.

Explanation For the purpose of this section, it is clarified that


preliminary assessment is not a trial, but is to assess the capacity of
such child to commit and understand the consequence of the
alleged offence.

(2) Where the Board is satisfied on preliminary assessment that the


matter should be disposed of by the Board, then the Board shall
follow the procedure, as far as may be, for trial in summons case
under the Code of Criminal Procedure, 1973 (2 of 1974)

Provided that the order of the Board to dispose of the matter shall
be appealable under sub-section (2) of Section 101. Provided
further that the assessment under the section shall be completed
within the period of specified in Section 14."

"Section 18(3):-
3. Where the Board after preliminary assessment under section 15
pass an order that there is a need for trial of the said child as an
adult, then the Board may order transfer of the trial of the case to
the Children's Court having jurisdiction to try such offences."

[10] Section 110(1) of the Act, 2015 gives the powers to the
Central Government to frame Model Rules till the same are made by
the State Government, which in any case, have to confirm to the
Model Rules framed by the Central Government. Section 110(1) is
reproduced hereunder for the facility of ready reference:-

"110. Power to make rules.-(1) The State Government shall, by


notification in the Official Gazette, make rules to carry out the
purposes of this Act:

Provided that the Central Government may, frame model rules in


respect of all or any of the matters with respect to which the State
Government is required to make rules and where any such model
rules have been framed in respect of any such matter, they shall
apply to the State mutatis mutandis until the rules in respect of that
matter are made by the State Government and while making any
such rules, they conform to such model rules."

[11] Invoking the powers available to the Central Government to


frame the Model Rules, the same have been made in the year 2016,
called the Juvenile Justice (Care and Protection of Children) Model
Rules, 2016. To enforce the provisions of Chapter IV of the Act,
prescribing procedure in relation to children in conflict with law, Rule
8 to Rule 14 have been formulated in the Model Rules of 2016. Rule
10 prescribes the postproduction process by the Board. However,
for the decision of the present lis, the following Rules, which have
been reproduced hereunder are most relevant:-

"10. Post-Production Process by the Board:-

xxx xxx xxx

(5) In cases heinous offences alleged to have been committed by a


child, who has completed the age of sixteen years, the Child Welfare
Police Officer shall produce the statement of witnesses recorded by
him and other documents prepared during the course of
investigation within a period of one month from the date of first
production of the child before the Board, a copy of which shall also
be given to the child or parent or guardian of the child.

xxx xxx xxx

(7) When witnesses are produced for examination in an inquiry


relating to a child alleged to be in conflict with law, the Board shall
ensure that the inquiry is not conducted in the spirit of strict
adversarial proceedings and it shall use the power conferred by
section 165 of the Indian Evidence Act, 1872 (1 of 1872) so as to
interrogate the child and proceed with the presumptions in favour of
the child.

xxx xxx xxx

(9) The Board shall take into account the report containing
circumstances of apprehending the child and the offence alleged to
have been committed by him and the social investigation report in
Form 6 prepared by the Probation Officer or the voluntary or non-
governmental organisation, along with the evidence produced by
the parties for arriving at a conclusion."

[12] Rule 10-A of the Act, 2015 provides for the preliminary
assessment into heinous offences by the Board, which is also
reproduced hereunder:-

"10A. Preliminary assessment into heinous offences by Board.- (1)


The Board shall in the first instance determine whether the child is
of sixteen years of age or above; if not, it shall proceed as per
provisions of section 14 of the Act.

(2) For the purpose of conducting a preliminary assessment in case


of heinous offences, the Board may take the assistance of
psychologists or psycho-social workers or other experts who have
experience of working with children in difficult circumstances. A
panel of such experts may be made available by the District Child
Protection Unit, whose assistance can be taken by the Board or
could be accessed independently.
(3) While making the preliminary assessment, the child shall be
presumed to be innocent unless proved otherwise.

(4) Where the Board, after preliminary assessment under Section


15 of the Act, passes an order that there is a need for trial of the
said child as an adult, it shall assign reasons for the same and the
copy of the order shall be provided to the child forthwith."

[13] For implementing the various provisions of the Act, Chapter II


provides for general principles of care and protection of children and
Section 3 therein provides for general principles to be followed in
the administration of the Act. The relevant principles are reproduced
hereunder:-

CHAPTER II

GENERAL PRINCIPLES OF CARE AND PROTECTION OF CHILDREN

3. General Principles to be followed in admission of Act.

(i) Principle of presumption of innocence: Any child shall be


presumed to be an innocent of any mala fide or criminal intent up to
the age of eighteen years.

xxx xxx xxx

(iii) Principle of participation: Every child shall have a right to be


heard and to participate in all processes and decisions affecting his
interest and the child's views shall be taken into consideration with
due regard to the age and maturity of the child.

(iv) Principle of best interest: All decisions regarding the child shall
be based on the primary consideration that they are in the best
interest of the child and to help the child to develop full potential.

xxx xxx xxx

(xi) Principle of right to privacy and confidentiality: Every child shall


have a right to protection of his privacy and confidentiality, by all
means and throughout the judicial process.
xxx xxx xxx

(xvi) Principles of natural justice: Basic procedural standards of


fairness shall be adhered to, including the right to a fair hearing,
rule against bias and the right to review, by all persons or bodies,
acting in a judicial capacity under this Act."

[14] A perusal of the principles extracted above would make it clear


that the child has to be presumed to be innocent and bereft of any
criminal intent upto the age of 18 years and would have the right to
be heard and participate in all procedures and decisions effecting his
best interest with due regard to his age and maturity. Again,
principle (xi) stipulates that his privacy and confidentiality has to be
maintained at all costs, meaning thereby that no third party would
have any right to invade the same. Principle (xvi) provides that
basic procedural standards of fairness shall be adhered to, including
the right to a fair hearing.

[15] Section 8(3) which prescribes the functions and


responsibilities of the Board stipulates in sub-Section (a) is
reiterated as under :-

(a) ensuring the informed participation of the child and parent or


guardian, in every step of the process.

[16] In the present case, the petitioner, being more than 16 years
of age as on the date of commission of alleged offence, the matter
had to be considered in view of provisions of Section 15 of Act for
the purpose of making preliminary assessment, as to whether the
child in conflict with law had to be tried as an adult or not. The
three parameters as provided under Section 15 of the Act are
required to be followed strictly. The Act of 2015 has been enacted
by the Parliament under the powers available under Article 253 of
the Constitution of India, the age for trying the child/juvenile as an
adult has been reduced from 18 to 16 years.

[17] The case, in hand, falls within the category of heinous offence
and the petitioner, being more than 16 years of age on the date of
commission of offence, is required to be dealt with as per provisions
of Section 15 of the Act for the purpose of making preliminary
assessment. As per arguments of learned counsel for the petitioner,
the Board has not conducted the preliminary assessment as per
provisions of the Act and Rules framed thereunder. A conjoint
reading of both Rules 10, 10A inconsonance with Section 14, 15 and
18(3) would reveal that the path to be tread upon by the Board,
post the production of the Juvenile has been clearly spelt-out where
heinous offence has been alleged to be committed by a child, who
has completed 16 years of age. Rule 10(5) clearly reflects that the
Child Welfare Police Officer is to produce the statements of
witnesses and other documents prepared during the course of
investigation within a period of one month from the date of first
production of a child before the Board. It is also required that a
copy thereof is to be given to the child or parent or guardian of the
child. The legislature in its wisdom has prescribed the period of one
month to produce the statements of the witnesses and other
documents with a copy to the child, subsequent to which, the
Preliminary Assessment in case of heinous offences under Section
15 of the Act has to be completed. Meaning thereby, the copy of list
of witnesses and other documents along with copy of final report is
to be supplied to the child or his parents or to the guardian before
making the Preliminary Assessment as per provisions of Section 15
of the Act. It is also stipulated in Section 15 read with Rules 10 and
10-A along with other provisions of the Act that three basic
parameters are necessary to be followed in case of a heinous
offence before passing the order under Section 18(3) for
determining the need for trial of a child as an adult. The Board had
to follow three parameters for making Preliminary Assessment as to
whether there is a need for the trial of said child as an adult or not.
It is to be seen as to how the Board as well as the Appellate Court
has appreciated the circumstances of the commission of alleged
offence, without the list of witnesses, documents relevant to the
matter as well as the final report, which in any case the
investigating authority is to file before the Board in less than two
months of the production of the child before it.

[18] In the present case, no list of witnesses and documents were


supplied to the petitioner or his parents or guardian, which itself
shows that the Board as well as the Appellate Court have decided
the case without any application of mind and contrary to the
provisions of the Act and the Rules framed thereunder.

[19] The proviso to Section 15 enables the Board to take the


assistance of any experienced psychologist or other experts to make
the Preliminary Assessment. It is clearly mentioned in para No.17 of
order dated 20.12.2017 passed by the Board that in case, the
opinion/assistance of any expert is required, the same be taken. It
is necessary to assess the mental capacity of the juvenile. It was
mandatory for the Board to assess the mental capacity of the
alleged offender to commit such an offence and also the ability to
understand the consequences of the same. It is also clear from the
order that the clinical psychologist has himself suggested that if any
further assessment is required, the juvenile may be sent to the
Institute of Mental Health at Rohtak. However, it has completely
been ignored by the Board and the assessment is based on
inappropriate tests, namely, coloured Progressive Matrices (CPM)
and Malin's Intelligence Scale for India Children (MISIC) meant for
children between the ages of 5-11½ and 5-15 has been taken as
the basis for the determination of the mental capacity of a child of
16½ years. Both the Board as well as the Appellate Authority have
completely ignored this fact. The petitioner wanted to cross examine
the psychologist regarding the same but his request was declined
and no permission was granted to him. The social investigation
report is also self contradictory and the same is not worth
considering. The copies of the tests, in question, were not provided
to the petitioner/parents/guardian but were shown just prior to the
hearing of arguments. It was not practically possible to understand
35 pages of the report by any layman in a time period of less than
30 minutes. However, in a time period of 30 minutes, the petitioner
got to have a look at the record of Dr. Joginder Singh Kairo, Clinic
Psychologist. It came out that he had carried the assessment on the
basis of two tests i.e (i) Coloured Progressive Matrices (CPM) and
(ii) Malin's Intelligence Scale for Indian Children (MISIC). The
petitioner (represented by his father) and his counsel were having
no idea about these tests. Subsequently, they tried to find out and
came to know that those tests were absolutely irrelevant to the case
of the petitioner and could not be used for making the mental
assessment of the petitioner. The basic book on Clinical Child
Psychology written by Radhey Sham and Azizuddin Khan
categorically states that Malin's test of Intelligence for children is
made for 5 to 15 years of children. Since the petitioner was 16.75
years old, when these tests were conducted on him, which were not
correct tests and have resulted in wrong results. Said expert himself
stated in his report that it would be appropriate that further
assessment be made by a higher authority. This resulted in the
petitioner doubting the credentials of the so called experts. Only
because of this reason, the petitioner not only sought copies of the
reports but also wanted to cross examine them so as to check the
veracity and the credentials of the experts and their reports.
However, he was not allowed in spite of specific request and
averments made to that effect, leading to travesty of justice. The IQ
test of the petitioner was conducted when he was more than 16
years and 9 months of age. An IQ of 95 at the age 16.75 would
necessarily translate to 15.67 years, going by the formula for
determining the mental age of any child, which is mental
age/Biological Age x 100. This means that the petitioner-child has
been determined to have a mental age of less than 16 years as per
the report of socalled expert. Even as per said report, the petitioner
had to be necessarily treated to be below 16 years. As the tests in
question, in any case, are for children below the age of 15 years,
the IQ of 95, determined by these tests, would obviously translate
to a mental age of much less than 15 years in any case.

[20] The observations made by the Appellate Authority in para


No.16 of the order is reproduced as under :-

" Only requirement was to look into the statement of witnesses


already running recorded so far and documents, if any, running
collected by that time. That too, in the opinion of this court can well
be substituted with the brief summary of the investigation/status
report running filed before the Board from time to time as
compelling investigating agency to place on record the statements
of its witnesses and documents running collected during the course
of investigation prior to filing of the final report by the investigating
agency amounts to intruding in the sphere of investigation which
may hamper a fair and impartial investigation."
[21] The Appellate Court has further held that there was no
requirement of giving any statement of witnesses or documents etc.
to the petitioner/guardian/parent, which is absolutely in
contradiction with the provisions of Rule 10(5) read with Sections
3(iii) and (xvi) read with Section 8(3) of the Act. As a matter of
fact, all provisions of the Act as well as the Rules made thereunder
have to be read harmoniously, to achieve the objective of the Act.

[22] However, learned counsel for the respondent-CBI has tried to


convince the Court by stating that the reports/documents are not
required to be supplied by considering the factum of confidentiality.

[23] The plea of confidentiality as submitted by learned counsel for


the respondent-CBI is actually for the protection of the child from
third party by considering the privacy of the child. It cannot be
interpreted that a delinquent child would not get a fair hearing,
whereas, it is the requirement of Section 8(3) of the Act that the
participation of the child and the parent or guardian is to be at
every step of the process. Section 3 especially states that a positive
interpretation has to be given to ensure that an environment is
created so that the child should feel comfortable. The confidentiality
is required with regard to third party just to protect the interest of
the child. All the reports related to the child and considered by the
Committee or by the Board are required to be treated as
confidential subject to the proviso.

[24] Even the Central Bureau of Investigation has also admitted in


the proceedings before the Board as well as the Appellate Authority
that it does not have such officers, who are specially trained to
undertake such investigation, involving children. Meaning thereby, it
is clear that the Central Bureau of Investigation does not have such
an infrastructure to conduct the investigation for reaching to its
logical conclusion keeping in view the special provisons of the Act.
All these grounds were mentioned before the Appellate Authority
but were not taken into consideration.

[25] The argument raised by learned counsel for the respondent-


CBI that this Court has a limited jurisdiction to invoke in the revision
petition, does not carry any weight because as per provisions of
Section 102 of the Act, in case, there is any illegality and perversity
or there is non-compliance of mandatory provisions, this Court has
a power to exercise the revisional jurisdiction. This view has been
supported by the law laid down in cases Jagannath Choudhary vs
Ramayan Singh, 2002 2 RCR(Cri) 813 and Rajinder Singh vs Vishal
Dingra, 2015 8 RCR(Cri) 453.

[26] In view of the facts and law position as discussed above, the
present petition is allowed and impugned order dated 20.12.2017
passed by the Juvenile Justice Board, Gurugram and order dated
21.05.2018 passed by the Additional Sessions Judge, Gurugram are
set aside. The case is remanded back to the Board for afresh
consideration after assessing the intelligency, maturity, physical
fitness as to how the juvenile in conflict with law was in a position to
know the consequences of the offence. The necessary exercise be
done within a period of six weeks from the date of receipt of
certified copy of the order. It is also relevant to mention here that
while conducting preliminary assessment, the opinion of
psychologist of the Government hospital be obtained.

Child in Conflict with Law


“Child in Conflict with Law” has been defined under Section 2 (l3) of the Juvenile Justice (Care & Protection of Children) Act, 2015
as a child who is alleged or found to have committed an offence and has not completed eighteen years of age on the date of
commission of such offence.

Offences Alleged to be committed by Children


The Juvenile Justice System assumes that a child offender is a product of unfavorable environment and is entitled to a fresh chance
to begin his life. The offences may have been committed without any criminal intent on certain occasions. The child probably lacks
foresight on the repercussions/consequences of his actions. It is accepted that a child offender should not be given punishment
based on the kind of offence he /she has committed but should be given an individual treatment which is reformative in nature and
which is based on his /her need, psychological and social background.
According to National Crime Record Bureau, a total of 31,396 cases of “children in conflict with law” (CCL) were reported in 2015
and the rate of crime committed by them was 2.1 per cent. However, a majority of these cases are petty crimes and are preventable
by providing proper guidance and counselling to children and economic strengthening of their families. An analysis of children who
were in conflict with law shows that majority of them belonged to economically weaker section (42.5 per cent). Around 11.5 per cent
of them were illiterate while another 43.4 per cent were educated up to primary level only ( Crime in India 2015: Compendium ;
NCRB).

Types of Crimes Committed by children


Various types of offences committed by children in conflict with law have been defined under the JJ Act, 2015 as follows:
1. Petty offences : Petty offences include the offences for which the maximum punishment under the Indian Penal Code or any other
law for the time being in force is imprisonment up to three years.
2. Serious Offences : Serious offences include the offences for which the punishment under the Indian Penal Code or any other law for
the time being in force is imprisonment between three to seven years.
3. Heinous Offences : Heinous offences committed by children in conflict with law include the offences for which the minimum
punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more.
Delinquency exhibits a variety of styles of conduct or forms of behavior. Each of the patterns has its own social context, the causes
that are alleged to bring it about, and the forms of prevention or treatment most often suggested as appropriate for the pattern in
question.
Howard Becker (1966: 226 - 38) has referred to four types of delinquencies:
 individual delinquency
 group-supported delinquency
 organized delinquency
 situational delinquency
Individual delinquency
This refers to delinquency in which only one individual is involved in committing a delinquent act and its cause is located within the
individual delinquent. Most of the explanations of this delinquent behavior come from psychiatrists. Their argument is that
delinquency is cause d by psychological problems that primarily stem from defective/faulty/pathological family interaction patterns.
Group - supported delinquency
In this type, delinquencies are committed in companionship with others and the cause is located not in the personality of the
individual or in the delinquent's family but in the culture of the individual's home and neighbourhood. The studies of Thrasher and
Shaw and McKay talk of this type of delinquency. Research findings suggest that most young children who became delinquent was
because of their association and companionship with others who were already delinquent. Unlike the psychogenic explanations, this
set of ideas focuses on what is learnt and who it is learnt from rather than on the problems that might produce motivation to commit
delinquencies.
Organized delinquency
This type refers to delinquencies that are committed by formally organized groups. These delinquencies were analysed in the United
States in the 1950s and the concept of "delinquent sub - culture" was developed. This concept refers to the set of values and norms
that guide the behavior of group members to encourage the commission of delinquencies, award status on the basis of such acts
and specify typical relationships to persons who fail outside the groupings governed by group norms.
Situational delinquency
The above - mentioned three types of delinquencies have one thing in common. In all of them, delinquency is viewed as having
deep roots. In individual delinquency (according to the psychogenic explanation), the roots of delinquency lie primarily within the
individual. In group - supported and organized delinquencies (the sociogenic explanation), the roots (of delinquency) lie in the
structure of the society with emphasis either on the ecological areas where delinquency prevails or on the systematic way in which
social structure places some individuals in a poor position to compete for success.
Situational delinquency provides a different perspective. Here the assumption is that delinquency is not deeply rooted, and motives
for delinquency and means for controlling it are often relatively simple. A young man indulges in a delinquent act without having a
deep commitment to delinquency because of less developed impulse - control and/or because of weaker reinforcement of family
restraints, and because he has relatively little to lose even if caught. David Matza is one scholar who refers to this type of
delinquency. However, the concept of situational delinquency is undeveloped and is not given much relevance in the problem of
delinquency causation. It is a supplement to rather than a replacement of other types.
A study by Parackal and Panicker (2016) reveals that most adolescent criminal behaviour is specific to adolescence period and will
not continue into adulthood. Much like a toddler outgrows temper tantrums, most adolescents will outgrow deviant behaviour. The
National Crime Records Bureau (NCRB) is the only available national resource to understand the magnitude of Juvenile
delinquency in India. In India, crimes are usually classified into crimes under India Penal Code (IPC) and crimes under Special and
Local Laws (SLL). The number of cases registered under various sections of IPC crimes against juveniles (in conflict with law) in
2015 have decreased by 6.3 per cent during 2015 over 2014 as 33,526 cases under IPC crimes were registered against juveniles
during 2014 which decreased to 31,396 such cases in 2015. Cases of juveniles in conflict with law registered under various SLL
crimes have decreased by 59.6 per cent in 2015 as compared to 2014 as 5,039 cases of juveniles in conflict with law under SLL
registered in 2014 which decreased to 2,037 cases in 2015. The National Crime Records Bureau statistics of 2015 depicts that
41,385 children were apprehended in 2015 as opposed to 48,230 children in 2014, i.e., 1.1 percent less than the share of children
apprehended in 2014.
Even though the fall in children in conflict with law is marginal, it is a positive sign. In comparison to the UK and the USA, the overall
child crimes in India in 2014 is 2.1 per cent which is less and not increasing at rapid pace as compared to these developed nations.
Given such low participation of children in offences, they should not be viewed as creating a moral panic in society as portrayed or
reported in newspapers, videos, and television.
The NCRB shows that 27 per cent CCL were involved in property-related offences. Children involved in serious and heinous
offences of murder and rape constituted only a miniscule with only 2.8 per cent and 5.9 per cent of the total IPC crimes committed
by children and 2.1 per cent and 5.1 per cent of the total juvenile crimes in 2014 (NCRB, 2014). This data highlights that children's
involvement in serious and heinous crime is marginal and thus, it is very important to ensure that we reduce the risk factors and
prevent our children from getting into crime.

What is to be done
Parents, teachers, schools, community and law enforcement agencies need to understand, prevent and reduce risk factors which
may push children towards adopting behaviours that may harm them and the wider society and are defined as being in conflict with
law. There is enough evidence to prove that with the right kind of prevention and rehabilitation most children adjust, reform, and
return to the maturity of adulthood.
Thus, it becomes important to identify risk factors, i.e. factors whose presence and early exposure enhances the likelihood of
engaging in delinquency and other behaviour problems (Reingle, Jennings, and Maldonado - Molina 2012; Mmari, Blum, and Teufel
- Shone 2010). Protective factors are those which mitigate the influence of risk factors. In recent years, studies of juvenile
delinquency and justice system have increasingly examined the impact of these strengths (protective factors) on youth's ability to
overcome challenges and thrive. Generally, protective factors - such as positive school attendance, positive social orientation or the
ability to discuss problems with parents - are a buffer to minimize or moderate the effect of risk factors and their ability to bring about
delinquent behaviour.

By doing so, Parliament has not only broken its own traditions regarding juvenile justice but also
ignored scientific and expert opinion on the matter. This is not the first time this has happened either;
the Criminal Law (Amendment) Act, 2013 was passed ignoring some of the recommendations made by
the Verma Committee. Both these legislations were brought about by significant public pressure resulting
from the rape of Jyothi Singh, a.k.a. Nirbhaya in 2012. But it is extremely foolish to formulate public
policy in response to one event, no matter how reprehensible. Policies are applicable to a wide range of
situations; by formulating them in reaction to only one set of events, the government runs the risk of
having faulty policies, albeit popular ones.

The Bill (according to the version passed by the Lok Sabha) already shows signs of such faults. It
envisages 3 categories of offences: petty (the offence attracts a punishment less than 3 years of jail),
serious (the punishment is between 3 to 7 years) and heinous (more than 7 years). A juvenile, aged
between 16 and 18 years, who has committed a heinous offence can be tried as an adult if the Juvenile
Justice Board deems he has the mental and physical capacity to perform the offence and understand its
consequences. This assessment is to then be confirmed by a Children’s Court before it proceeds to
conduct the juvenile’s trial as if he were an adult. If the juvenile is found guilty and sentenced, he or she
will only be transferred to a regular jail at the age of 21. At this stage the Court may release the juvenile if
he/she is found to be sufficiently reformed or rehabilitated.

First, the requirement for the assessment by the Board disregards the fact that multiple medical and
psychological studies have found that the brain is insufficiently developed to comprehend such
consequences at this age. Moreover, the Board is expected to determine this capacity without
compulsorily consulting a psychologist or medical expert (the act does however allow the Board to do so
and provides a degree in child psychology as one of the many possible qualifications for board members).
The Bill further stipulates that the Board has one month less to dispose of the assessment than with petty
and serious cases. This haste flies in the face of reason; if anything, an inquiry into a heinous crime
should take more time. When taken together with the failure to necessitate an expert opinion, this haste is
baffling given that the finding of the Board has the ability to permanently affect the life of the juvenile.

No doubt, many people will claim that juveniles have relinquished the right to such concerns by
committing ‘heinous’ offences. But many juveniles will not be charged with perpetrating crimes as
violent as the rape of Jyothi Singh. Moreover, this assessment is only of the mental capacity of the
juvenile and is not a “finding of guilt”. The stated aim of both the 2015 Bill and the 2000 Act is to protect
children and as such is supposed to be primarily concerned with the rehabilitation of juvenile delinquents.
This is why all proceedings under the previous act were kept confidential and a conviction would not
result in disqualification for government posts. However, the 2015 Bill removes this prevention of
disqualification if the Children’s Court reaffirms the Board’s decision that the juvenile could comprehend
the consequences of his ‘heinous’ offence. This means that juveniles will be disqualified even if they are
found innocent at the conclusion of their trial or are deemed to be sufficiently reformed at the age of 21.
Finally, we arrive at the constitutionality of the Bill (this could be a separate article in and of itself).
Under Article 14 of the Constitution i.e. the right to equality, the distinction between ages could be argued
to be unconstitutional. The Supreme Court has only allowed the State to treat different categories of
people differently if (1) the distinction is founded on ‘intelligible differentia’ and (2) that the ‘differentia’
has a rational relation to the object sought to achieved by the Statute (a.k.a. the Doctrine of
Classification).

The Statement of Objects and Reasons included in the Bill claims that it is intended: “to consolidate and
amend the law relating to children alleged and found to be in conflict with law and children in need of
care and protection by catering to their basic needs through proper care, protection, development,
treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of
matters in the best interest of children and for their rehabilitation through processes provided, and
institutions and bodies established.”

In all fairness, this intention is carried out for most of the Act, especially Section 3. But the differentia
between the two age groups is, if anything, disconnected from this worthy intention. The severity of the
punishment is in no way related to the protection of children, and even if it is, treating juveniles as adults
capable of being jailed is not a “child-friendly approach” and is certainly not in the “best interests of
children”.

The Statement of Objects and Reasons then also mistakenly tries to take the garb of constitutionality by
citing, amongst other Articles, Article 15(3) and Article 39(f). Article 15 is a fundamental right and clause
(3) empowers the State to make special provisions for children, but only for their betterment. Any
provision that seeks to imprison children cannot thus rightly claim legitimacy from Article 15(3). Article
39 is a less enforceable Article that instructs the State to direct its policies to achieving a particular set of
principles. Clause (f) of Article 39 states that children should be “given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity” and that “childhood and youth”
should be “protected against exploitation and against moral and material abandonment.”

Given that most juvenile delinquents come from situations of exploitation or moral and material
abandonment the State has clearly failed in this duty. Also of note is that the learned members of the
Constituent Assembly wished to extend this protection to ‘childhood’ and ‘youth’, the latter of which
clearly covers the 16-18 age group.

These are just some of the flaws apparent by a cursory glance of the Bill (as passed by the Lok Sabha).
Many better and qualified experts will no doubt dissect the provisions of the final Act with greater
precision and detail. But what is worrying is the wave of populism that brought this Act into being;
indeed, the Bill achieved consensus in a Rajya Sabha when none thought such a thing possible. This
populism is acknowledged in the Standing Committee Report on the Bill as are many of the objections
mentioned above.

The Committee also questioned the empiricism of the claim that heinous crimes by juveniles have been
on the rise. However, despite the urging of the Committee, its objections and recommendations were
disregarded by a Parliament. Even though the Bill won’t affect the juvenile involved in the rape of Jyothi
Singh, political parties were eager to garner acclaim from those seeking vengeance.
22 Id.
Rule 18. 23 G.A Res. 45/112, United Nations Guidelines for the Prevention of Juvenile Delinquency
(Dec. 14, 1990). 24 G.A Res. 45/113, United Nations Rules for the Protection of Juveniles Deprived of their
Liberty (Dec. 14, 1990), Rule 11(a). 25 G.A Res. 44/25, Convention on the Rights of the Child (Nov. 20,
1989). 26 The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 02 of 2016, India Code,
Preamble (2015).
4. Injustices under Section 15
The most crucial change brought about by the JJ Act, 2015 is that, under Section 15 of the JJ Act,
2015, a child who has completed or is above the age of 16 years can potentially be tried as an
adult. Under the Act, a child has been defined as a person who has not attained Christ University
Law Journal Vol. 8, No.2 ISSN 2278-4322 8
18 years of age.27 Therefore, there is no change in the definition of the child per se. Although the
Act has not reduced the age in the definition, Section 15 of the Act has reduced the age of a
child from 18 to 16 years for the purpose of treating a child as an adult for heinous offences,
thus proving to be a glaring and unavoidable inconsistency.
27 The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 02 of 2016, India Code, §§ 2(12),
(13) (2015). 28 The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 02 of 2016, India Code ,
§ 15 (2015). 29 The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 02 of 2016, I NDIA
CODE,§19(3). 30 M. Tonry & M. H. Moore , Youth violence, 24 Chi. Uni. of Chicago Pres. 189-261 (1998). 31
The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 02 of 2016, I NDIA CODE, § 2(20);
Manjula Krippendorf v. State (Govt. of NCT of Delhi) and Ors, AIR 2017 SC 3457.
Section 15 of the JJ Act, 2015 mandates the JJB to conduct a preliminary assessment of children
to understand their mental status. The JJB may take the help of psycho-social workers,
psychologists and other experts to ascertain their mental capacity. If the Board is satisfied that
the child possesses the mental capacity to commit such a crime on the basis of the preliminary
assessment conducted therein, it may send the child to be tried as an adult by Children's Court
under Section 18(3). This change is relevant, as such a transfer entails a protracted process,
characterized by an extremely adversarial hearing.28 The Children's court, in turn, uses Blended
sentencing, known also as extended jurisdiction juvenile (hereinafter referred to as EJJ), in
which the courts can try the juvenile either as a child or as an adult. Further, the child is given a
juvenile sentence to be served at a place of safety, until he becomes a major, after which he is
transferred to an adult prison.29 The blended sentencing rendered by the courts is more punitive
in nature as it allows children to be sentenced as an adult. This convergence eventually erodes
the rationale for a separate juvenile justice system.30 It is beyond comprehension and somehow
paradoxical as well, that the same courts established for the protection of the child's dignity is
now violating it.31 The Apex Court has time and again held that the dignity of a child is of
Deepak Singh An Analysis of Section 15 of the Juvenile Justice Act, 2015 9
extreme significance and emphasizes on the sustenance of such dignity.32 The United Nations
Convention on the Rights of the Child (hereinafter referred to as UNCRC), and the Beijing Rules
advocated that child offenders should be dealt with differently from adult offenders. General
Comment No.10 specifically reminds State Parties of their obligations under the CRC:
32 Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590; Suchita Srivastava and Anr. v. Chandigarh
Administration, (2009) 9 SCC 1; Reena Banerjee and Anr. v. Govt. (NCT of Delhi) and Ors., (2015) 11 SCC
725; Mofil Khan and Anr. v. State of Jharkhand, (2015) 1 SCC 67. 33 General Comment No. 10, Children’s
Rights in Juvenile Justice, para 37, 38 (2007) 34 K. Padmaja, Juvenile Delinquency, ICFAI University Press
(2007) 35 Somalia and US Should Ratify UN Child Rights Treaty, Official.
https://news.un.org/en/story/2010/10/355732-somalia-and-us-should-ratify-un-child-rights-treaty-
official 36 Chris Cunneen, Juvenile Justice - An Austalian Perspective, Oxford University Press,28-90 (1995).
"they have recognized the right of every child alleged as, accused of, or recognized as having
infringed the penal law to be treated in accordance with the provisions of article 40 of CRC. This
means that every person under the age of 18 years, at the time of the alleged commission of an
offence, must be treated in accordance with the rules of juvenile justice".33
These conventions and Charters provide a separate treatment for youthful offenders through
what can be termed as social defense.34 India was one of the member states and in the year 1992,
it had ratified the CRC, the world's most heavily ratified human rights treaty.35 Despite ratifying
it, the Government has overturned this well-entrenched practice of treating juvenile offenders
different from adult offenders. It now allows the JJB’s discretion to exclude children above 16
years of age, who have allegedly committed heinous offences from the benefit of a benevolent
juvenile system.
Professor Chris Cunneen,36 a leading criminologist, has propounded the Labelling Theory. It
postulates that juvenile Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322 10
delinquency is to be seen as a product of the juvenile's interaction with the criminal justice
system, as it is responsible for shaping his behavior to a great extent. Once a juvenile commits a
crime and is apprehended by the law enforcement agencies, his treatment as an adult in an
adversarial criminal justice system such as that of India, contributes to his identity as a criminal.
This identity is soon accepted by and attributed to the offender by both, the society as well as
the justice system. The societal reaction manifesting in child labeling contributes to the child
becoming a criminal.37A general understanding is that a child is prone to take after the labels
attributed to him. Consequently, if a child is called bad, that is the way the child will identify
himself and consequently behave in the future.38 The very objective of the Act could have been
to preclude the interaction of the juvenile with the interface of the adult justice system, as
labeling of the juvenile contributes to negative patterns of behavior. The objective of treating a
child as an adult under Section 15 is based on the retributive conception of punishment, which
holds that the best response to a crime is a punishment proportional to the offense inflicted by
the offender.
37 JustinAshenfelter, Coming Clean: The Erosion of Juvenile Miranda Rights in New York State, 54 NY Lar
Rev.(2012). 38 Richard D. Schwartz & Jerome H. Skolnick, Two Studies of Legal Stigma, 10 Oxford Journal
(1962). 39 Subramanian Swamy v. Raju, (2014) 8 SCC 390. 40 Salil Bali v Union of India, (2013) 7 SCC 705
The Apex Court, in Subramanian Swami v. Raju, through the Juvenile Justice Board, provided cogent
reasons while dismissing the petition against reducing the cut-off age from 18 to 16 years.39 In
the case of Salil Bali v. Union of India,40 the constitutionality of definition of child under 18 years
was challenged as ultra vires Constitution. The Court held as follows.
"The age of eighteen years has been fixed on account of the understanding of the experts in
child psychology and behavior patterns that till such an age the children in conflict with law
could still be redeemed and restored to mainstream society, instead of becoming hardened
criminals in future. It is probably better to try and reintegrate children with criminal
propensities into Deepak Singh An Analysis of Section 15 of the Juvenile Justice Act, 2015 11
mainstream society, rather than to allow them to develop into hardened criminals, which does
not augur well for the future." 41
41 Salil
Bali v Union of India, (2013) 7 SCC 705 42 Two Hundred Sixty Fourth Report The Juvenile Justice
(Care and Protection of Children) Bill, 2014, Parliament of India, http:// www.prsindia.org/
uploads/media/ Juvenile%20Justice/ SC%20 report-%20Juvenile%20justice.pdf. 43 Id at para 3.21, Pg. 30.
44 Report of the Committee on Amendments to Criminal Law, Gov. of India,
https://searchworks.stanford.edu/view/10772631.
The Juvenile Justice (Care and Protection) Bill, 2014 was examined by the Department Related
Parliamentary Standing Committee, which in its 264th report took note of the concerns raised by
stakeholders, with regard to certain provisions of the legislation being ultra vires of the
Constitution. The Committee also took cognizance of the fact that the most vulnerable section of
the society, the children, are likely to be adversely affected by the legislation.42 It rejected the bill
as being unwarranted and unconstitutional in the following words:43 "[T]he existing Juvenile
Justice Act, 2000 is not only reformative and rehabilitative in nature but also recognizes the fact
that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence,
there is no need to subject them to a different or an adult judicial system as it will violate Article
14 and 15(3) of the Constitution. We also took notice of the Crime in India, 2013 by the National
Crimes Records Bureau which shows juvenile crimes to be 1.2 percent of the total crimes
committed. It is evident that juvenile crime is not significantly increasing so as to warrant
bringing radical changes in the legislation, which could very well be tackled within the existing
framework, with appropriate infrastructure".
The Justice Jagdish Sharan Verma Committee constituted in the aftermath of the 2013 Delhi
gang-rape case, to look into possible amendments to criminal law, also recommended against
the reduction of the age of the juvenile.44 Despite cogent reasons proposed by the committees
and the Apex Court, the parliament Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322 12
succumbed to popular demand resonating through media frenzy and proceeded with the Act in
its present form.
4.1 Ambiguous Classification in the Legislation
The JJ Act, 2015 has introduced a three-fold classification of offences as petty, serious, and
heinous offences. Such a classification is ridiculous, not only with respect to JJS but also with
regard to the criminal justice system.45 Apart from the difference in the treatment of a child, the
classification serves to determine the "crime de jour" for which a child above 16 years and below
18 years can potentially be tried as an adult.46 Therefore, it is very important to understand the
classification made under the act as differential treatment of a child is based particularly on this
classification.
45 Ved Kumari, Juvenile Justice Act, 2015-Critical Understanding, Indian L. Inst. (2017). 46 Handbook for
Advocates working with Children in Conflict with Law in India, Nat’l Law School of India University, https://
www.nls.ac.in/ ccl/ publications/handbook.pdf. 47 The Juvenile Justice (Care and Protection of Children)
Act, 2015, No. 02 of 2016, India Code, § 2(45) (2015). 48 The Juvenile Justice (Care and Protection of
Children) Act, 2015, No. 02 of 2016, India Code, § 2(54) (2015).
Petty offences are those offences for which the maximum punishment under the Indian Penal
Code, or any other law, is imprisonment up to three years.47 For serious offences the
punishment is imprisonment between three to seven years.48 Heinous offences include offences
for which the minimum punishment under the Indian Penal Code or any other law is
imprisonment for seven years or more. The definition of petty offences does not pose any
difficulty, as it includes only those offences that are punishable with imprisonment for a period
not exceeding three years. However, the definitions of both serious and heinous offences are
vaguely worded. There are several offences which fall within this ambiguous zone – where the
maximum punishment is more than seven years and no minimum punishment has been
mentioned or where the minimum punishment is less than seven years. Neither do such
offences fall Deepak Singh An Analysis of Section 15 of the Juvenile Justice Act, 2015 13
within the ambit of heinous nor serious offences. They also do not fall within the category of
petty offences.
The definition of heinous offences leaves out a considerable number of offences. For example,
Section 304 of the Indian Penal Code, lays out the punishment for culpable homicide not
amounting to murder. It is prescribed that the punishment may extend to ten years. As only the
maximum period of imprisonment, and no minimum period is mentioned under Section 304,
the offence will not fall within the category of heinous offence. Another such example is the
offence of robbery which is punishable with imprisonment for a term which may extend to ten
years…and, if the robbery is committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years. Therefore, such offences which are
punishable with imprisonment not exceeding ten years as in Section 392, (or any other term
exceeding seven years,) cannot be classified into any category of offences envisaged by the JJ
Act, 2015. There is ambiguity as to whether such offences are to be treated as serious offences
(as the minimum punishment rendered may or may not be between 3 to 7 years) or are they to
be treated as heinous offences (as no such minimum punishment is mentioned under such
sections)? There are at least 55 offences under the IPC, which do not fall under the definition of
serious or heinous offences. The description of the stipulated category of offences has created
unwanted confusion as many offences under the Penal Code do not fall within these definitions.
The adversities are graver if, due to this ambiguity, a case is treated to be heinous. In such a
case, the child may be deprived of the protection of the juvenile justice system. There are several
offences which fall within this ambiguous zone.
5. Psychology and Juvenile Delinquency
Section 15 of the JJ Act, 2015 places an onerous obligation on the Board to assess the mental and
physical capacity of the child, specifically when such a child is above the age of sixteen. In
pursuance of this, the Board may take the assistance of experienced psycho-social workers,
psychologists or other experts for assessing the child's mental and physical capacity to commit
the crime. However, the Act has failed in establishing a universally accepted Christ University Law
Journal Vol. 8, No.2 ISSN 2278-4322 14
definition, leaving room for ambiguity and consequently, arbitrariness. Psychological sciences
cannot adequately deconstruct this concept in a manner that allows for an accurate and reliable
assessment. Neither can psychology nor human development sciences, precisely identify the
chronological age at which such capacity exists in its entirety.49 The question of where to draw
the line between a child and an adult is subjective, and is ultimately arbitrary.50 In the case of S v
Dyk,51Justice Corbett argued that the danger inherent in applying a vague, generalized right and
wrong test is that, in an instance like this, such a child could well be found criminally
responsible. Research on the relevance of neurodevelopment milestones, in determining the
minimum age of criminal responsibility has been brought to the fore52 over the last 15-20 years.
Modern technological advances, particularly in medical imaging technology, have concluded
that adolescent brains are not as fully developed as adults until age 25.53 In Stanford v.
Kentucky,54the US Supreme Court observed that "children, those under the age of 18 but even as
old as 16 and 17, are not sufficiently able to control their impulses, nor to fully understand the
consequences of their risky behavior." In a 2005 case, Roper v. Simmons,55 achild of 17 years was
sentenced to death penalty. In an attempt to reverse the judgment, the American Psychological
Association submitted amicus briefs to the Supreme Court of the United States, to exhibit that at
the age of 17 years, the adolescent brain is still developing. Based on the scientific evidence
supporting the amicus brief, the Supreme Court countermanded the
49 Anthony L Pillay & Clive Willows, Assessing the Criminal Capacity of Children: a Challenge to the Capacity
of Mental Health Professionals, 27 Journal of Child and Adolescent Mental Health 91-101 (2015). 50 Robert O.
Dawson, The Future of Juvenile Justice: Is It Time to Abolish the System?, 81 The Journal of Cri. Law and
Criminology 136-155 (1990) 51 S v Dyk, (1969(1) SA 601(C) 52 Michael E Lamb & Megam PY Sim,
Developmental Factors Affecting Children in Legal Contexts, 13 Sage Journals 131-144 (2013). 53 Supra note 7. 54
Stanford v. Kentucky, 492 US 361. 55 Roper v. Simmons, 543 US 551 (2005); Graham v. Florida, 560 US 48
(2010); Miller v. Alabama,567 US 460 (2012). Deepak Singh An Analysis of Section 15 of the Juvenile
Justice Act, 2015 15
death penalty.56 It is suggested that the JJBs send the child for preliminary assessment to
psychiatric departments of state-run hospitals, for ascertaining the mental health of the child.
Owing to infrastructural and financial deficits which plague these hospitals, it can reasonably
be concluded that such departments may not be suitable to assess the requisite criteria. A
psychologist is unable to satisfy the requirement under Section 15(1) of JJ Act, 2015 as they are
skilled to identify mental illness/disorders, and not the ‘mental or physical capacity’ of the
child, which even psychiatric/psycho-social workers cannot do.57 The process of assessment of a
child, especially in this setting, is a complex task, time consuming and costly to be applied to
each child.58 The JJ Act, 2015 is willfully blind to neuro developmental sciences, social sciences,
and foundational religious teachings about human nature. It is unfortunate that in spite of
abundance of research in this field, the legislature, riding on the emotions of erroneous public
opinion brought into effect the JJ Act, 2015.
56 AliyaHaider, Roper v. Simmons: The Role of the Science Brief 369-377, 3 Ohio State Journal of Criminal
Law (2006). 57 K. M. Banham Bridges, Factors Contributing to Juvenile Delinquency, 17 Journal of Crim. L. &
Criminology (1927). 58 Budget for Children in New India, Center for Child RightS, http:// haqcrc.org/wp-
content/uploads/2018/02/haq-budget-for-children-2018-19.pdf. 59 R.D Upadhyay v. State of A.P and
Ors., AIR 2006 SC 1946. 60 M.P Jain, Indian Constitutional Law 907-09 Lexis Nexis (2018)
6. Juvenile Justice and the Constitution
The Preamble of the JJ Act, 2015 refers to Articles 15(3), 39(e) and (f), 45 and 47 of the
Constitution. It states that such Articles cast an obligation "on the State to ensure that all the
needs of children are met and that their basic human rights are protected".59 The transfer system
of a child to adult criminal system under the Act, violates the right to equality under the
Constitution. Article 14 prescribes equality before law, but the fact remains that all are not equal
by nature, circumstances, attainment, and hence a mechanical equality before the law results in
injustice.60 The Supreme Court has underlined this principle thus: Christ University Law Journal Vol.
8, No.2 ISSN 2278-4322 16
"Article 14 of the Constitution ensures equality among equals: its aim is to protect persons
similarly placed against discrimination. It means that equals should be treated alike; it does not
mean that 'unequals ought to be treated equally'. Persons who are in the like circumstances
should be treated equally. On the other hand, where persons or groups of persons are not
situated equally, to treat them as equals would itself be violative of Article 14 as this would
result in inequality".61
61 RK Garg v Union Of India, AIR 1981 SC 2138. 62 Supra note 49. 63 Franklin E. Zimring, The Changing
Legal World of Adolescene, MAcmillan Publishing Co. New York, (1985) 64 Sri Mahadeb Jiew and Anr. v.
Dr. B.B Sen, AIR 1951 Cal 563; Independent Thought v. Union of India, AIR 2017 SC 4904. 65 Sampurna
Behura v. Union of India (UOI) and Ors., (2018) 4 SCC 433.
Children and adults being on an unequal footing with respect to their psychological
development, ought not to be treated alike. Subjecting children to the same criminal justice
system as adults, is premised on the flawed assumption that children and adults can be held to
the same standard of culpability and that children are capable of participating in legal
proceedings in a like manner.62 When one expects the same level of psychological
understanding and behavior as adults from children, one is guilty of treating unequals as equals
and as a consequence, violating Article 14. The most important way in which a child is different
from an adult is that he/she is in the process of becoming an adult - a state that has been
described as semiautonomous.63 Therefore, holding them to the same standards of culpability as
adults, is not appropriate. Further Article 15(3) of the Constitution mandates that states make
special provisions in favor of children, not against them.64 The state has a Constitutional
obligation to safeguard their interests and welfare in the real sense, not by doing them a favor,
as charity.65 Deepak Singh An Analysis of Section 15 of the Juvenile Justice Act, 2015 17
7. Avenues for Change: Possible Solutions
‘Hard Cases make bad law,’ is an old adage which dates back to 1837. It was an observation
made by Justice Robert Rolf in the case of Winterbottom v Wright in 1842:
"This is one of those unfortunate cases...in which, it is, no doubt, a hardship upon the plaintiff to
be without a remedy but by that consideration we ought not to be influenced. Hard cases, it has
frequently been observed, are apt to introduce bad law".66 The observation made by Judge
Robert Rolf, has sound implications. Laws should be made for the benefit of the general
population. The laws enacted should reflect average circumstances and should not be based on
extreme cases, as they form a poor basis for the enactment of laws. The Nirbhaya case, where a
medical student was brutally gang raped is one such bad example. The juvenile offender who
prompted the nation-wide debate about the effectiveness (or lack thereof) of the JJ Act, was
termed as the most brutal amongst all offenders. India has taken a step-backward by
introducing JJ Act, 2015 on the basis of one bad case of involving a barbaric gang-rape in which
one of the juvenile offenders was just a few months short of attaining majority.
66 Winterbottom v Wright, 152 ER 402. 67 Donna Bishop et. al., The Transfer of Juvenile to Criminal Court:
Does it make a difference?, 42 Crime and Delinquency, 171-91 (1996); Karen Miner-Romanoff, Juvenile
Offenders tried as adult: What they know and implications for practitioners, 41 Northern Kentucky L. Rev. 205-
224 (2014); Deanie C. Allen, Trying Children as Adults, 6 Jones L. Rev. 27-64 (2002). 68 Madrid v. Gomez, 889
F. Supp. 1146 (ND Cal. 1995).
The government also jettisoned its responsibility to take into account the experience of countries
which have adopted the practice of transfer of children to the adult criminal justice system.
These countries have had higher rates of recidivism.67 The Court in Madrid v. Gomez,68 observed
that the modern prison life may press the outer bounds of what most humans can
psychologically tolerate. In the words of Krishna Iyer, J, adult prisons are like Christ University
Law Journal Vol. 8, No.2 ISSN 2278-4322 18
"animal farms".69 The future of child offenders in adult prisons, presents a bleak picture. Owing
to such a system, the juveniles are at a greater risk of committing suicide and suffering from
sexual and physical abuse meted out to them by older inmates. A direct causal link can be
drawn to the effects of the brutalization and the harms suffered by juveniles.70 The culture and
environment in prison, fosters behavior in juveniles that increases their chance of recidivism.
They are also exposed to techniques which they can utilize, in order to indulge in illegal
activities, on their return to the society.71 The author suggests that rehabilitation plays a very
crucial role in the Juvenile justice system. Rehabilitating a juvenile, who has committed an
offence, itself can have a deterrent value, because successful rehabilitation results in specific
deterrence.
69 Satto
v. State of UP, (1979) 2 SCC 628. 70 William C. Bailey, Deterrence, brutalization, and the death penalty:
Another examination of Oklahoma's return to capital punishment, 36 Criminology 711-33 (1998). 71 Richard E.
Redding, Adult punishment for Juvenile offenders: Does it reduce crime? 47 (Illanova Uni. School of Law
Working Paper Series. 1-37 (2006). 72 Supra note 38.
8. A Comparative Analysis of Juvenile Justice Systems
The problem of juvenile delinquency is not confined to a particular country. It is a global
phenomenon. However, the age at which a person is considered a juvenile, differs significantly
from country to country, and so do the approaches to tackle juvenile delinquency.72 In this
section, the author will examine how other countries in different parts of the world are
addressing juvenile delinquency.
8.1 Uganda’s Juvenile Justice System
Uganda ratified the UNCRC in 1990. In 1996, Uganda enacted its own juvenile legislation. The
legislation reflects the commitment of Uganda, a developing country with scant resources, to
import children's rights into local laws, as enshrined in the CRC. This is evident in the measures
taken by the Ugandan government to place its law in conformity with the CRC, delivering of
justice to children, strengthening child protection structures and helping to build a Deepak Singh
An Analysis of Section 15 of the Juvenile Justice Act, 2015 19
protective environment for children.73 Uganda has adopted a child-centric approach in its
Constitution. Article 34(6) of the Constitution of Uganda provides for separate treatment of
child offenders and further entailed that a child offender shall not be detained with adults.74 The
commitment to put into effect the Constitutional provision on children, is reflected in Section 4
of the Children's Act which gives the welfare of the child top-most priority.75 The maximum
punishment which a Family and Children court (FCC) can inflict cannot be more than three
years in case of an offence punishable by death and three months in case of any other offence.76
Uganda carried out an amendment in its Children's Act in 2016. As per the new amended Act,
the country has also specifically focused on the core issues which lead to the juvenile offences.
Section 6 of the Act emphasizes on parental responsibility to provide basic amenities such as
education, immunization, diet, clothing, and medical attention and so on.77 The principle of
diversion has been paid much attention by Uganda, where a child alleged to have committed a
crime is let off at the time of apprehension, with a mere warning, without resorting to formal
court proceedings.78 In the Republic of Uganda v. O.D (a juvenile),79 the High Court of Uganda held
that the statute conceives the detention of a child as a serious measure, which must be resorted
to only as a last resort. It must be reserved for the worst cases.80
73 Uganda v. Bedayika Nancy 19 (2016). 74 Uganda Const. Art. 34. 75 Children Act, Act. no. 6 of 1996, Chap.
59 (1997). 76 Atandu Marcelo v. Uganda (COA) (2009) 0009. 77 Children Act, Act. no. 6 of 1996, Chap. 59
(1997) § 6. 78 Children Act, Act. no. 6 of 1996, Chap. 59 (1997). §§ 89 (1), 89(2), 89(6). 79 The Republic of
Uganda v. O.D (a juvenile) (2018) UGHCCRD 159. 80 The Republic of Uganda v. O.R (Juvenile) (2018)
UGHCCRD 156; Uganda v C.B. (a juvenile) (2018) UGHCCRD 163.
8.2 The South African Perspective
The South African Republic ratified the CRC in 1995. After having ratified the CRC, it has
adopted a sustainable juvenile legislation after much contemplation. The South African juvenile
system has been crafted in a manner that the majority of children will be dealt with outside the
criminal justice system, without recourse to the Christ University Law Journal Vol. 8, No.2 ISSN 2278-
4322 20
formal court system. Section 28(2) of the Constitution of South Africa gives due regard to the
best interests of the child, when dealing with matters involving them. It also enumerates the
right of the child to be kept separately from adult offenders.81 The Child Justice Act passed in
2008, in pursuance to the constitutional mandate, promotes the ethos of ubuntu,82(the concept of
common humanity)thus preventing children from being tried in the adversarial court system.
This is achieved by resorting to mechanisms which are more suitable to the interest of the child
and in accordance with the Constitution of South Africa, including the use of diversion.83 In
Director of Public Prosecutions, Transvaal v. Minister of Justice and Constitutional Development and
Ors.84the Constitutional Court of South Africa held that "Courts are bound to give effect to the
provision of Section 28(2) in matters which involve children and are obliged to give
consideration to the rights and best interests of the child."
81 SouthAfrica Const. § 28 (1) (g), (2); Centre for Child Law v Minister of Justice and Constitutional
Development 2009 2 SACR 477 (CC) para 29; Centre for Child Law v Minister for Justice and
Constitutional Development 2009 6 SA 632 (CC) para 14(d). 82 Nkem Ifejika, What does ubuntu really mean?,
THE GUARDIAN (Sept. 29, 2006,), https://www.theguardian.com/ theguardian/ 2006/ sep/ 29/
features11.g2 83 S v. M (2007) 2 SACR 539 (CC); Child Justice Act, 2008, Act. no. 75 of 2008, § 2 (2008);
South Africa Const. art.28. 84 Director of Public Prosecutions, Transvaal v. Minister of Justice and
Constitutional Development and Ors., (2009) 4 SA 222 (CC). 85 Catherine Blatier, Juvenile Justice In France:
The Evolution of Sentencing for Children and Minor Delinquents, 39 The British Journal of Criminology
Oxford University 240-252 (1999); GATON STEFANI ET AL., DROIT PÉNAL GÉNÉRAL ET PROCÉDURE PÉNALE
(17th ed. 2000).
8.3 Juvenile Justice in France
The French Juvenile system resorts to educative solutions, rather than to impose punitive
measures. This has been France's choice for over 60 years, since the Order of 2 February 1945.85
Article 8 of the Order, reflects the desire of the society to ensure the best possible future for its
children, by reintegrating them into the community, by dealing with the core issues such as the
moral status of their Deepak Singh An Analysis of Section 15 of the Juvenile Justice Act, 2015 21
family, the educative environment, the conditions in which they have been brought up, rather
than relying on preventive measures to ensure their rights.86 France does not have the same
system of transferring juveniles to adult criminal courts as India. In an interview with Judge
Catherine Samet, Investigative Judge, Tribunal de Grand Instance, in Nanterre Prefecture
(suburb of Paris), the Judge emphasized on the Humanist approach towards Juvenile offenders
as the cornerstone of the French Juvenile Justice System.87 The whole programme is aimed at
educating juveniles as an alternative to imprisonment. This helps in preventing delinquency in
its nascent stage itself, at the school and family level. Consequently, positive results are visible
in France.
86 Anne Wyvekens, The French Juvenile Justice System, Int’l Handbook of Juvenile Justice, Springer 173-186
(2006). 87 Calvin Peeler, Always a Victim and Never a Criminal: Juvenile Delinquency in France, 22(3) N.C.J.
INT'L L. & COM. REG. 886-87 (1997). 88 Del Carlo Shari, Oregon Voters Get Tough on Juvenile Crime: One Strike
and You are Out!, 75 OREGON L. REV. 1224-40 (1996).
9. Ideas India can Adopt
An analysis of how other countries are tackling juvenile delinquency with a child-centric
approach, offers valuable lessons for India. First, without exception, in all the countries
reviewed herein, there is a tendency to tackle the core issues which lead to juvenile delinquency
such as moral status of family, child's education et cetera to prevent delinquency at its nascent
stage. Second, juvenile legislations in all the aforementioned countries have been balanced in
such a way, so as to secure the best interests of the child, without taking recourse to the formal
legal system. The principle of diversion has also been paid much attention. Third, fundamental
to all these countries is the separate treatment of a child in a system distinct from the adult
criminal justice system. The lesson for India is that Criminal conduct and its influence on society
depends on the treatment juveniles receive today.88 Preventing today's juvenile offenders from
engaging in future Christ University Law Journal Vol. 8, No.2 ISSN 2278-4322 22
criminal activity is a more realistic and humane goal than forfeiting the future of an entire
segment of the population.89
89 Jeffrey K. Day, Comment, Juvenile Justice in Washington: A Punitive System in Need of Rehabilitation, 16 U.
PUGET SOUND L. REV. 399, 443 & n.311 (1992); Martin L. Forest & Martha-Elin Blomquist, Cracking Down
on Juveniles: The Changing Ideology of Youth Corrections, 5 NOTRE DAME J.L. ETHICS & PUB. POL'Y 323, 443
(1991). 90 Supra note 45, para 1.4, Pg.9.
10. Conclusion
The JJ Act, 2015, by introducing the provision of transfer has taken a step backward, while
defeating the sui generis status of a child. The object of the JJ Act, 2015, as it presently stands,
leans more towards managing juvenile offenders than rehabilitating them. The committee
examining the Juvenile Justice bill, 2014 was appraised by the Ministry of Women and Child
Development, regarding the various problems in the existing JJ Act, 2000. These problems
ranged from a delay in inquiries, lack of clarity pertaining to roles, functions, responsibilities,
accountability of JJBs and also reports repeated instances of abuse of children in the institution.
Instead of strengthening the Act of 2000, which was more appreciative of the developmental
needs of the child, the government rushed to enact a whole new piece of legislation, which is a
retrograde step likely to serve no purpose.90 It is also found that children below the age of 18 are
not likely to exhibit sufficient competence in either juvenile or criminal courts. Several instances
of a child being a defendant in an adversarial court proceeding, hampers the chance of securing
justice, as juveniles are less likely to communicate effectively and trust their lawyers, both being
indispensable in establishing a legal defense. It has changed the approach of law towards
children in the direction of a law-driven system and away from treatment-driven system. The
government has passed the JJ Act, 2015, bypassing the core issues pertaining to the rights of the
child. The steps undertaken by the government for the welfare of the child has paid less
attention to the core issues which lead to juvenile delinquency. Deepak Singh An Analysis of
Section 15 of the Juvenile Justice Act, 2015 23
As it has already been observed, criminal behavior is caused by unwholesome environmental
determinism of a child.91 The current emphasis of the law should shift "from assessing the social
harm that the offender has done to assessing the social needs of the offender. According to
Locke, education is the only way to "[set] the mind right " and help in finding a solution for
juvenile delinquency.92 Creating a system that focuses on early intervention is extremely
important. The focus should lie in strengthening the institutions of education and family. These
can be expensive, but much economical if the bigger picture is taken into account. Taking steps
in this regard will most likely be practically useful to invest in the child’s overall development,
rather than labelling them as unredeemable.
91 Court on Its Own Motion v. Dept. of Women and Child, WP (C) No. 8889 of 2012. 92 Ruth W. Grant and
Nathan Tarcov, John Locke, Some Thoughts Concerning Education, 49, Hackett Publishing Company,
Inc. (1996)
As the law has already been passed, the author suggests that trying juveniles as adults should be rare
and applied for only the most severe, violent crimes. Model rules should be enacted to try a juvenile as
an adult, only in the rarest of the rare cases. Adult prisons do not encourage positive change in
offenders nor does it focus on rehabilitation aspects. Instead, it creates an environment that encourages
further criminal activity. The affirmative steps the system must take to rehabilitate the offender must
necessarily focus on not causing more harm. This would facilitate the child into becoming a law-abiding
citizen.