Case BriefsSupreme Court

Supreme Court: In a bid to clear the air over the applicability of and the Juvenile Justice (Care and Protection of Children) Act, 2015 in a case where the accused had committed an offence in the year 1981 and had pleaded juvenility, the bench of SA Nazeer and Sanjiv Khanna, JJ elaborately discussed the schemes of the Juvenile Justice Act, 1986, the Juvenile Justice (Care And Protection Of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Act, 2015 and concluded that

  • all proceedings in respect of a juvenile pending in any court on the date on which the 2000 Act came into force shall continue before that court as if the 2000 Act had not been passed; and
  • 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.

BACKGROUND OF THE CASE


The accused was sentenced to life imprisonment for commission of the offence under Section 302 read with section 34. There was, however, the question of juvenility involved and the Trial Court held that the accused was not a juvenile as per the Juvenile Justice Act, 1986 (1986 Act) as he was more than 16 year of age on the date of commission of the offence i.e. 11.12.1981.

The conundrum in the present case was in light of the definition of ‘juvenile’ under the 1986 Act, which was below sixteen years in case of a boy and below eighteen years in case of a girl on the date the boy or girl is brought for first appearance before the court or the competent authority, whereas the Juvenile Justice (Care And Protection Of Children) Act, 2000 (2000 Act), does not distinguish between a boy or girl and a person under the age of eighteen years is a juvenile. Further, under the 2000 Act, the age on the date of commission of the offence is the determining factor.


APPLICABILITY OF THE 2000 ACT


Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 verdict and its effect

The Constitution Bench in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 held

  • the 2000 Act would be applicable in a pending proceeding instituted under the 1986 Act in any court or authority, if the person had not completed eighteen years of age as on 1st April 2001, when the 2000 Act came into force.
  • the reckoning date for the determination of the age of the juvenile is the date of the offence and not the date when he is produced before the authority or in a court.
  • Consequently, the 2000 Act would have prospective effect and not retrospective effect except in cases where the person had not completed the age of eighteen years on the date of commencement of the 2000 Act. Other pending cases would be governed by the provisions of the 1986 Act.

Scheme of the 2000 Act

  • Legislative intent clearly expressed states that all proceedings in respect of a juvenile pending in any court on the date on which the 2000 Act came into force shall continue before that court as if the 2000 Act had not been passed.
  • If the court comes to a finding that a juvenile has committed the offence, it shall record the finding but instead of passing an order of sentence, forward the juvenile to the Juvenile Justice Board (Board) which shall then pass orders in accordance with the provisions of the 2000 Act, as if the Board itself had conducted an inquiry and was satisfied that the juvenile had committed the offence.
  • The proviso states that the Board, for any adequate and special reasons, can review the case and pass appropriate order in the interest of the juvenile.
  • The expression ‘all pending cases’ in the Explanation to Section 20 includes not only trial but even subsequent proceedings by way of appeal, revision etc. or any other criminal proceedings. Thus, in respect of pending cases, Section 20 authoritatively commands that the court must at any stage, even post the judgment by the trial court when the matter is pending in appeal, revision or otherwise, consider and decide upon the question of juvenility.
  • Juvenility is determined by the age on the date of commission of the offence. The factum that the juvenile was an adult on the date of enforcement of the 2000 Act or subsequently had attained adulthood would not matter.
  • As per Section 64, where a juvenile in conflict with law is undergoing any sentence of imprisonment at the commencement of the 2000 Act, he shall, in lieu of undergoing the sentence, be sent to a special home or be kept in a fit institution in such manner as the state government thinks fit for the remainder of the period of sentence. However, such sentence shall not exceed the maximum period provided in Section 15 of the 2000 Act. The statute overrules and modifies the sentence awarded, even in decided cases.

Applicability of the 2000 Act to the facts of the case

In light of the aforementioned legal position, the Court noticed that it can, at this stage, decide and determine the question of juvenility of the accused, notwithstanding the fact that he was not entitled to the benefit of being a juvenile on the date of the offence, under the 1986 Act, and had turned an adult when the 2000 Act was enforced.

“As the accused was less than 18 years of age on the date of commission of offence on 11.12.1981, he is entitled to be treated as a juvenile and be given benefit as per the 2000 Act.”


INTERPRETATION OF SECTION 25 OF THE 2015 ACT


Section 25 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is a non-obstante clause which applies to all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of the 2015 Act, that is, 31st December 2015. It states that the pending proceedings shall be continued in that Board or court as if the 2015 Act had not been passed.

  • The use of the word ‘any’ before the board or court in Section 25 of the 2015 Act, would mean and include any court including the appellate court or a court before which the revision petition is pending.
  • The word ‘found’ in the phrase ‘a child alleged or found to be in conflict with law’ is used in past-tense and would apply in cases where an order/judgment has been passed.
  • The word ‘alleged’ would refer to those proceedings where no final order has been passed and the matter is sub-judice.
  • The expression ‘court’ is not restricted to mean a civil court which has the jurisdiction in the matter of ‘adoption’ and ‘guardianship’ in terms of clause (23) to Section 2 of the 2015 Act . The definition clause is applicable unless the context otherwise requires.

“In case of Section 25, the legislature is obviously not referring to a civil court as the section deals with pending proceedings in respect of a child alleged or found to be in conflict with law, which cannot be proceedings pending before a civil court. Since the Act of 2015 protects and affirms the application of the 2000 Act to all pending proceedings, we do not read that the legislative intent of the 2015 Act is to the contrary, that is, to apply the 2015 Act to all pending proceedings.”


APPLICABILITY OF THE 2000 ACT VIS-À-VIS THE 2015 ACT


The Court noticed that in light of Section 6 of the General Clauses Act read with Section 25 of the 2015 Act, an accused cannot be denied his right to be treated as a juvenile when he was less than eighteen years of age at the time of commission of the offence, a right which he acquired and has fructified under the 2000 Act, even if the offence was committed prior to enforcement of the 2000 Act on 01.04.2001.

It, hence, concluded,

“In terms of Section 25 of the 2015 Act, 2000 Act would continue to apply and govern the proceedings which were pending when the 2015 Act was enforced.”


CONCLUSION ON FACTS


While the Court upheld the conviction of the accused, it set aside the sentence of life imprisonment and remitted the matter to the jurisdiction of the Board for passing appropriate order/directions under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and the compensation to be awarded to the family of the deceased.

[Satya Deo v. State of Uttar Pradesh,  2020 SCC OnLine SC 809, decided on 07.10.2020]

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi, J. rejected the appeal under Section 14-A of the SC/ST (Protection Against Atrocities) Act and laid down the guiding principles for determination of age in a claim of juvenility.

The facts of the case are that a minor girl was raped by the appellant on multiple occasions on the pretext of marrying her and impregnated her after which he gave her certain pills to abort the child. When the girl and his family confronted the appellant he fled after which they filed an FIR against him. The appellant is presently charged under Section 376(2)(n)/313/506 of Indian Penal Code, 1860 read with Section-6 of POCSO Act read with Section-3(2)(v)(va) of SC/ST (Prevention of Atrocities) Act. The case has come before this court for the determination of age of the victim during the case was registered.

The counsel for the appellant Satyabrata Pradhan, Adhiraj Mohanty, S.S. Dash, M.R. Muduli, M.B. Smrutiranjan, A.K. Samal submitted that the girl was not a minor during the offence was committed and subsequently when the case was registered by relying on her Aadhar card and Aanganwadi register report which are prepared by public servants in the course of their official duty making them cogent and reliable proof of the age of the victim. He also submitted that the girl and the appellant had a love affair and due to which the girl on her own consent when she was a major made relations with the accused and hence the appellant is innocent.

The counsel of the State P.K. Mohanty submitted that the date of birth of the victim as per the school admission register and also the Board Certificate seized by the police both the date of birth coincides to be below 18 years at the time of occurrence giving rise to the complaint. He further contended that Rule-12(3) of Juvenile Justice Rule, 2007 as well as Section 94 and Sub-section 2(i) of the Juvenile Justice Act, 2015 provide the procedure to be followed for determination of age.

The Court relied on the Judgment titled Mukarrab v. State of U.P., (2017) 2 SCC 210 and held that court is inclined to go by the school admission register/ matriculation certificate not only due to leaning of the Apex Court on this issue but also due to the fact that same now raises a presumption in law, albeit rebuttable, by way of a deeming fiction in terms of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

In view of the above, issue of minority was found irrelevant and appeal rejected. [Debabrata Sahoo v. State of Odisha, 2020 SCC OnLine Ori 545 , decided on 30-07-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Arvind Singh Sangwan, J., dismissed the revision petition filed against the rejection of bail to the accused. The revision petition was filed by the juvenile accused of murdering another child in the washroom of a private school in Gurugram.

Order passed by Principal Magistrate, Juvenile Justice board, Gurugram has been prayed to be set aside which dismissed the application for bail filed by petitioner as well as the Order passed by the Appellate Court, Gurugram.

Rupinder Khosla, Senior Counsel for the petitioner submitted that on perusal of the Order passed by lower Courts the language used by them does not entitle the petitioner concession of bail as the following was observed:

no misplaced sympathy can be shown to a juvenile who has perpetrated the offence like murder.

Further it was argued that, as per Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 a person who is apparently a child alleged to be in conflict with law, be notwithstanding anything contained in the Code of Criminal Procedure, 1973 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.

Senior counsel for the petitioner has further submitted that in the earlier petition, the CBI has admitted that it has no infrastructure to investigate the case. It is further argued that in the observation home there is overcrowding of children and the petitioner has already lost considerable weight, therefore, the petitioner be released on bail.

State’s Counsel submitted that as per the statement recorded by the probation officer, petitioner’s attitude towards the class was aggressive, he used to remain upset most of the time as he disclosed this fact to his music teacher; he was short-tempered and shouted over children; a low average student in studies; found under the influence of liquor.

Further CBI contended that the petitioner has on his own stated in the Supreme Court that he wants his application to be decided as an adult, there will be no applicability of Section 12 of the Act.

CBI also argued that proper hygiene condition are maintained in the protection home.

CBI adding to its contentions has also argued that considering the nature and gravity of the charge, severity of punishment in the event of conviction and the danger of accused absconding or fleeing, if released on bail; character, behaviour, means, position and standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with and danger of justice being thwarted by grant of bail.

Since petitioner has been facing allegation of committing heinous crime of a 7 year old minor child in a very barbaric manner by cutting his throat and then trying to demolish the evidence, no sympathy should be given.

Counsel for the complainant has also submitted that it is the petitioner’s side, who is not allowing the trial to conclude as they have challenged every order passed by the Courts below.

Bench found it appropriate to not grant bail for the following reasons:

  • Court is not inclined to grant any relief to the petitioner, in view of the order dated 28.02.2019 passed by the Hon’ble Supreme Court, directing that for deciding the bail application, the petitioner be treated as an “Adult”, therefore, there is little scope for this Court to find out whether the petitioner can be granted the relief under Section 12 of the Act.
  • Board and the Appellate Court have passed a detailed order declining the concession of bail to the petitioner in view of the proviso to Section 12(1) of the Act and this Court find no reason to form a different opinion.
  • arguments raised by senior counsel for the petitioner that the petitioner is not kept in a congenial atmosphere at Children’s Home and is facing medical problem, are not proved from the two reports of the Medical Board stating that the petitioner is not facing any serious problem/illness and rather it is noticed that the petitioner is gaining weight.
  • prosecution has cited certain witnesses, who are minors including the sister of the deceased and therefore, possibility of tampering the evidence, cannot be ruled out, at this stage in view of the totality of circumstances and the affidavit filed by the CBI.

Thus, in above view, revision petition was dismissed. [Bholu v. State of Haryana, 2020 SCC OnLine P&H 835 , decided on 30-06-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of NV Ramana, SK Kaul and BR Gavai, JJ has asked the Central Government to extend the order passed in In Re Contagion of COVID-19 Virus in Children Protection Homes, to Nari Niketans also, if feasable.

The Court had, on 03.04.2020, the bench of L. Nageswara Rao and Deepak Gupta, JJ issued extensive directions to various authorities after taking sup motu cognizance of the issue involving protection of children who fall within the ambit of Juvenile Justice (Care and Protection of Children) Act, 2015 from the spread of Coronavirus that is sweeping the world.

[Rishad Murtaza v. Union of India,  2020 SCC OnLine SC 377, order dated 21.04.2020]

Case BriefsSupreme Court

Supreme Court: The Division Bench of Uday Umesh Lalit and Vineet Saran, JJ., dismissed an appeal with respect to the denial of appointment for the post of sub-inspector on the ground of a criminal case having been registered against respondent when he was a juvenile.

Court noted the significance of the Juvenile Justice (Care and Protection of Children) Act as follows:

“The thrust of the legislation as well i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 as well as the Juvenile Justice (Care and Protection of Children) Act, 2015 is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile.”

The facts of the present case are that, the respondent had cleared his process of application and interview and was thus selected and offered an appointment for the post of Sub-Inspector in Central Industrial Security Forces (CISF). Further, he was required to submit a form that contained a column relating to whether any FIR had been lodged against the respondent in the past, for which the respondent had given the details of the FIR lodged against him. Respondent had clearly mentioned in his form that he was acquitted for the same on a compromise.

Further respondent’s case was referred to the Standing Screening Committee which found his appointment to be unsuitable on the ground of a criminal case lodged in the past against him. Thus his appointment was cancelled by the National Industrial Security Academy.

Supreme Court’s Observation & Decision

Supreme Court in the present appeal noted that the complaint lodged against respondent was to the effect when he was a minor, he had teased a girl and went to the extent of catching hold of her hand. However, the girl and her parents decided to pardon the respondent resulting in his acquittal.

For the above-said, “even if it is found to be true, the Court stated that it cannot be said that the respondent committed such a crime which would be covered under the definition of moral turpitude, specially when the respondent is said to have committed the alleged offence when he was a minor.”

“Even if the allegations were found to be true, then too the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile.”

Further, the Court noted that, the case against the respondent is not with regard to the suppression of any conviction or charges having been framed against him. Respondent had very fairly disclosed the charges which had been framed and his acquittal.

Thus, the appeal was dismissed with a direction that the respondent shall be entitled to all the benefits of the Judgment. [Union of India v. Ramesh Bishnoi, 2019 SCC OnLine SC 1531, decided on 29-11-2019]

Case BriefsHigh Courts

Patna High Court: Ahsanuddin Amanullah, J. allowed a petition seeking to quash an order of the Sessions court on the ground that the petitioner was juvenile and protected by the Juvenile Justice (Care and Protection of Children) Act, 2015.

The petitioner along with other persons was accused of forming an unlawful assembly and damaging the informant’s property. A case was instituted under Sections 147,148,149,341,323,324 and 307 of the Penal Code, 1860 (‘IPC’) and Section 27 of the Arms Act. 1959. Petitioner’s case was considered by the Juvenile Justice Board, West Champaran Bettiah. The Board ordered the petitioner to go home in the care of his father. The petitioner, being aggrieved by the order appealed before the Sessions Judge. The Sessions Judge by an order dated 11-02-2016 convicted him under Sections 149 and 307, 149 of the IPC.

Sanjay Kumar, counsel representing the petitioner submitted that on the date of occurrence of an event, the petitioner was 15 years old, the Board had to conclude enquiry without holding anything against the petitioner. He was a member of an unlawful assembly but had no role in any overt act. There was no delinquency record against the petitioner and no complainants were lodged regarding his behaviour. The petitioner was required to be released and the appellate court had gone beyond its jurisdiction in convicting him. The conviction was totally uncalled for as the informant or the State had not filed any appeal.

Bhanu Pratap Singh for the State contended that the order of the board was sufficient and the order passed by Sessions judge regarding petitioner’s guilt is unsustainable as no appeal was preferred by the prosecution.

The Court upon perusal of the facts and circumstances held that the Sessions Judge by ordering conviction has misdirected himself as it was not an appeal by State or the informant and juvenility of the petitioner should have been considered by the court. The court quashed the order and allowed the appeal on two grounds, recording of guilt was found to be unjustified upon appraisal of evidence, and secondly, the petitioner is protected by virtue of Section 24 of the Juvenile Justice (Care and Protection of Children) Act, 2015. [Md. Isteyak v. State of Bihar, 2019 SCC OnLine Pat 1926, decided on 08-11-2019]

Case BriefsHigh Courts

Rajasthan High Court: Manoj Kumar Garg, J. allowed bail to a juvenile who was accused of criminal offences on finding his situation to be inconsistent with any of the exceptional circumstances given in Section 12 of the Juvenile Justice Act, 2015.

The petitioner(s) Ridmal Ram, on behalf of juvenile son Neeraj, had his bail plea denied by the Principal Magistrate, Juvenile Justice Board, Barmer and subsequently by the Special Judge (POCSO Act Cases), Balotara. The charges against the juvenile were of being a member of an unlawful assembly, voluntarily causing hurt, wrongful restraint, attempt to murder and theft under Sections 143,323,341,307 and 382 of the Penal Code, 1860 respectively.

Advocate, G.S. Bhati represented the petitioners while Public Prosecutor, A.R. Choudhary argued for the State.

The Court perused the language of Section 12 of the Juvenile Justice Act and found the exceptional cases in which bail can be denied to a juvenile delinquent to be threefold: where there appear reasonable grounds for believing that the release if likely to bring him into association with any known criminal, or expose him to moral, physical or psychological danger, or that his release would defeat the ends of justice.

The Court found the juvenile’s situation to be inconsistent with the circumstances mentioned in Section 12 and thus, set aside the previous orders and allowed the bail petition with the stipulation that on all subsequent dates of hearing, he shall appear before the said court or any other court, during pendency of the investigation/trial in the case and that his guardian shall keep proper look after of the delinquent child and secure him away from the company of known criminals.[Neeraj v. State of Rajasthan, 2019 SCC OnLine Raj 3911, decided on 05-11-2019]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J. disposed of an application for bail relating to offences under Narcotic Drugs and Psychotropic Substances Act, 1985.

In the present case, the petitioner was found in possession of 495 cannabis near the Govt. Boys Higher Secondary School, Neyyattinkara, Thiruvananthapuram for its sale among School and College students. Thereafter, a case was registered by the police under Sections 20(b)(ii)(A) and 29(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS’) and section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and has been under detention since then.

The counsel representing the petitioner, Sasthamangalam S Ajithkumar, submitted that the allegations are false and baseless and further that the offences alleged as per the NDPS Act are bailable and further that the only non-bailable offence alleged in this case is the one as per Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and that the prosecution does not even have a case that the accused persons have in fact sold any such contraband to the school or college children. 

The public prosecutor for the State, Amjad Ali, opposed the plea for bail since there is a possibility that the petitioner shall commit the same offences again. 

The High Court upon perusal of facts and circumstances of the case, more particularly taking into account, the fact that the only non-bailable offence, in this case, is the one as per Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and also taking into account, the fact that the petitioner has already suffered detention since 04-10-2019, disposed of the application and granted bail to the petitioner. The Court, however, stated that if the petitioner commits the further offence of a similar nature during the time of bail then the Prosecuting Agency or the Investigating Officer concerned shall immediately conduct a proper enquiry and file a report to the Jurisdictional Magistrates Court. [Joyal S. Johny v. State of Kerala, 2019 SCC OnLine Ker 3712, decided on 31-10-2019] 

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. disposed of clubbed appeals arising out of the same criminal matter, and convicted the accused of the offence of rape punishable under Section 376 IPC.

The accused was alleged to have taken away and raped the prosecutrix, who was a minor at the time of the commission of offence. He was convicted by the trial court for offences under Sections 363, 366-A and 376 IPC. On appeal to Sessions Court, his conviction under Section 376 was reversed, however, remaining part of the trial court order was confirmed. The State and the accused, both, filed appeals before the High Court.

On facts of the case, the High Court held that the offence under Sections 363 and 366-A IPC were not proved against the accused. However, since the prosecutrix was 14 years of age at the time of commission of offence, her consent to the sexual act does not matter. His acquittal by Sessions Court for the offence punishable under Section 376 IPC was thus reversed.

Next, the Court considered that at the time of commission of offence, the accused was about 16 years of age — a juvenile. On the aspect of sentencing, it was observed:

”At the time when the accused and the prosecutrix were in love and did the act which, to the misfortune of the accused, attracted the penal laws, his age was 16 years and 2 months. The Juvenile Justice (Care and Protection of Children) Act, 2010 followed by the Act of 2015 had not come into force. Under the two Acts, the age of juvenility was enhanced from 16 years to 18 years. In the decision reported as Hari Ram v. State of Rajasthan, (2009) 13 SCC 211, even in pending matters before the trial court or in the appeal the benefit of said acts has to be accorded to the accused and thus deciding the three appeals today, it would be our duty to extend the benefit of Juvenile Justice Act, 2010 and 2015 to the accused. As per clause (g) of sub-Section (1) of Section 18 of the Juvenile Justice Act, the accused can, at best, be directed to be sent to Special Home for such period not exceeding three years so that the Accused can be reformed. It would be futile, therefore, to pass an order as contemplated by law for the reasons for the year 2019, the age of the accused is 38 years.”

Accordingly, the accused was convicted as aforesaid but no sentence was imposed on him since as of today, the accused was no longer a Juvenile. The appeals were disposed of accordingly.[State of Maharashtra v. Hemant Ashokkumar Mittal, 2019 SCC OnLine Bom 1670, decided on 22-08-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Sehrawat, J. dismissed the appeal on the ground that the decision taken by the lower court was in accordance with the amended provision of the Juvenile Justice (Care and Protection of Children) Rules, 2007.

A petition was filed challenging the order in appeal whereby the application for declaring the petitioner as a juvenile was rejected.

An FIR was lodged against the petitioner under Sections 148, 149, 307, 506, 452 of Indian Penal Code, 1860 and 25/54/59 of the Arms Act. In order to avoid full rigor of criminal law, the petitioner filed an application in order to declare him as a juvenile and thus to be tried by the Juvenile Justice Board. The application was adjudicated upon by JM- 1st Class and it was held that petitioner age was more than 18 years and therefore was not juvenile. Thereafter, an appeal was preferred before the Additional Session Judge in which the judgment was upheld. Thus, this application.

The lower court relied upon the date of birth of the petitioner as mentioned in the certificate where the petitioner took the first admission. The petitioner took admission in various schools in which different birth date were mentioned. The court refused to believe the date of birth mentioned in matriculation certificate which was different from that recorded in other schools as brought on Court file.

Ankur Lal, counsel for the petitioner argued that per the Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 prescribed the procedure to be followed for determination of age, where accused claims to be juvenile.  The petitioner submitted that the as per the rule, the matriculation certificate was to be given preference and bought on record various judgment of the Supreme Court, which was brushed aside by the court on the ground that the other relevant material was not available in those cases.

Rituraj Singh and Gautam Dutt, counsel for the complainant submitted that the Juvenile Justice (Care and Protection of Children) Act, 2015 has superseded the earlier provisions laid down in the Rules. A new provision has been enacted in the Act itself. According to the provision, the matriculation certificate no more enjoys the place of primacy, while determining the age of the accused. It had to be left to the court to assess the age of the person bought before it. Hence, both the Courts below have rightly declined the application moved by the petitioner.

The High Court opined that there was no substance in the argument raised by the petitioner. “Although the Juvenile Justice (Care and Protection of Children) Rules, 2007 had given a place of primacy to the matriculation certificate, over the other proofs of date of birth of the accused, however, that provision stands replaced by the Act, 2015”. It was further submitted that the fact the petitioner was tried as juvenile in another case cannot taken as relevant factor as the no inquiry was held in that matter. The court pointed that “after leaving Govt. School, the petitioner has given different dates of birth for getting admission in different schools in different classes; which are found to not even commensurate with his age. Thus, no illegality was done by the lower court by giving more value to the date of birth as recorded in Government primary school.”[Gajab Singh v. State of Haryana, 2019 SCC OnLine P&H 869, decided on 20-02-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Bench of Sanjay Kumar Gupta, J., disposed of a bail application against a juvenile on various grounds stated by the petitioner including the ground for furtherance of his son’s (accused) education.

The facts of the case are the accused was a juvenile at the time of commissioning of the offences. Despite that, he was arrested and was kept in the police lockup.

The petitioner filed a bail application before the Court of Chief Judicial Magistrate. It transferred the bail application of the applicant to the Juvenile Justice Board. The Juvenile Justice Board ordered the respondent to shift the juvenile to the place of safety (observation home). Juvenile Justice Board rejected the bail application filed by the petitioner.

The petitioner contended that the juvenile was preparing for Medical Entrance Examination and the Board instead of adopting reformative approach took resort to a strict view which has not only curtailed his freedom / personal liberty but also caused a great blow to the educational /professional career of the juvenile.

The respondents argued that that son of the petitioner was involved in heinous offence under Sections 354-B/376-D RPC and Section 6 J&K POCFSV and in this regard the FIR should stand registered. The case fell within the ambit of rarest of the rare case, therefore, there was a  rider and embargo for grant of bail to the son of the petitioner.

The Court disposed of the bail application by giving liberty to the petitioner to file a fresh application before the trial court where the challan against the son of the petitioner was pending. It also ordered that any observation made by the Juvenile Justice Board should not come in the way of the trial court in deciding the fresh application. [Vinayak Sharma v. State of J&K, 2018 SCC OnLine J&K 1045, Order dated 24-12-2018]

Case BriefsHigh Courts

Bombay 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]

Case BriefsHigh Courts

Delhi High Court: In the matter relating to the release of the Juvenile involved in the ghastly Nirbhaya gang rape case which sent shock waves across the globe, the Delhi High Court held that the release of the juvenile after the completion of the 3 years retention period as provided in Section 15(1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000 cannot be interfered with as the Court could not extend stay beyond this period as an interim measure.

Extension of the retention period was sought on the ground that juvenile could not be released without ascertaining factum of reformation that was necessary for his social integration. The bench of G. Rohini, CJ and Jayant Nath, J held that the plea for extention of retention period cannot be extended as the Juvenile has to be released on completion of 3 years.

Regarding the legal issue raised in the main writ petition, i.e., the need for ascertaining the factum of reformation of the juveniles in conflict with law before they are released from the Special Home on expiry of the period of stay ordered by the Juvenile Justice Board, the Court was of the view that this issue is a larger issue of public importance which requires deeper consideration. Listing the matter for 28.03.2016, the Court said that Department of Women and Child Development should also be impleaded as respondent in order to have wider view on this issue. [Dr. Subramanian Swamy v. Raju through Juvenile Justice Board, decided on 18.12.2015]

Case BriefsHigh Courts

Delhi High Court: The division bench comprising of the G. Rohini CJ and Rajiv Sahai Endlaw J. dismissed a writ petition raising issues against the procedural rules, (both the State made rules and the model rules) to be followed for determination of age of a juvenile in conflict with law. The petitioner in the present case contended violation of Article 14 on the ground that the birth certificate issued by the local body is the most valid document and therefore the same should have been given first preference while making the inquiry into the determination of age and hence the procedure prescribed under both the Model Rules and the State, which gives preference first preference to Matriculation or equivalent certificates; second preference to the date of birth certificate from the school first attended and third preference to birth certificate given by a local body. Rule 12(3) of the State Rules (Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009) gives first preference to the date of birth certificate from the school first attended; second preference to the birth certificate given by a local body and third preference to the matriculation or equivalent certificates.

Dismissing the writ petition, the court said that the petitioner failed to show how these Rules are violative of Article 14.The court said “May be according to the petitioner, it would be more reasonable to give first preference to the birth certificate issued by the local body, however, no enactment can be struck down on the ground that the court thinks it unjustified. The legislation by the Parliament or the delegated legislation are supposed to be made keeping in view the needs of the people and what is good and bad for them. The court, therefore, cannot sit in judgment over their wisdom.” The bench further clarified that the State needs to follow the procedure prescribed in the State rules, which give preference to gives first preference to the date of birth certificate from the school first attended; second preference to the birth certificate given by a local body and third preference to the matriculation or equivalent certificates. [R.K Tarun v. Union of India, 2015 SCC OnLine Del 13461 decided on 19.11.15]

Supreme Court

Supreme Court: Stressing on the need to rethink an effective law to deal with the crimes committed by juveniles, the bench of Dipak Misra and P.C. Pant, JJ said that though there can be a situation where commission of an offence may be totally innocuous or emerging from a circumstance where a young boy is not aware of the consequences but in cases of rape, dacoity, murder which are heinous crimes, it is extremely difficult to conceive that the juvenile was not aware of the consequences.

In the present case the juvenile petitioner, along with other 4 persons, forcibly took the victim to another village and assaulted him with kicks, lathies and iron pipes for not paying a debt which resulted into his death. In such situation the Court asked that whether it can be said that the petitioner was not of mature enough mind to be aware of the consequences of his act or the life of the victim is totally immaterial, for five people, including a juvenile, think unless somebody pays the debt, he can face his death.

The Court, hence, noted that the rate of crime and the nature of crime in which the juvenile are getting involved for which the Union of India and the State Governments are compelled to file cases before this Court to which the learned Attorney General does not disagree, have increased and therefore, requested the learned Attorney General to bring it to the notice of the concerned authorities this scenario so that the relevant provisions under the Act can be re-looked, re-scrutinized and re-visited, at least in respect of offences which are heinous in nature. Gaurav Kumar v. State of Haryana, 2015 SCC OnLine SC 287, decided on 06.04.2015