Child, Who Has Not Committed Heinous Offence, Can’t Be Tried At Children’s Court: Bombay HC [Read Judgment]
Under Section 19(3) of the JJ Act, a Children's Court may send a child to a place of safety till he attains the age of 21 years and thereafter, the person shall be transferred to a jail.
The court allowed a petition filed by three 18-year-old boys who were convicted for attempt to murder under Section 307 of the Indian Penal Code when they were 17, which makes them a ‘child’ at the time of the crime.
Under Section 2(12) of the said Act, “child” means a person who has not completed 18 years of age.
Justice Mridula Bhatkar was hearing the petition challenging an order dated January 19, 2018, and also the order dated July 13, 2018, both passed by the Juvenile Justice Board, Sangli.
As all the petitioners were about 17 years old, but below 18 years old, the Juvenile Justice Board referred them to a psychologist for assessment by the said order dated January 19, 2018. Pursuant to the said order, assessment report as per Section 15 of the said Act was placed before the Juvenile Justice Board, Sangli. The board considered the facts of the case and also interacted with the boys in conflict with law (CCL) and made their assessment that the mental was sufficient to commit crime. All the three petitioners were aware of the consequences and they voluntarily participated in the offence and, therefore, the Juvenile Justice Board transferred the matter to Children's Court as per Section 18(3) of the said Act.
Advocate Satyavrat Joshi appeared on behalf of the petitioners and submitted that the petitioners came under the definition of “child” under the JJ Act with regard to their age at the time of the crime. He submitted: “The petitioners being “child” if not have committed heinous crime, then they are to be tried by Juvenile Justice Board and not to the Children's Court.” If they are tried by the Children's Court, then prejudice will be caused to them in view of Section 19 of the said Act, Joshi submitted.
The court noted that under the definition of “heinous crimes”, the minimum punishment for such a crime is required to be seven years or more.
Under Section 307 of IPC, minimum punishment is not prescribed, but punishment may extend to 10 years and fine, and if hurt is caused to any person, then punishment can be extended upto life imprisonment.
Justice Bhatkar concluded:
“Due to the benchmark of minimum punishment of 7 years or more, section 307 of IPC cannot fall within the ambit of heinous offences.”
Regarding the decision of the Juvenile Justice Board, Sangli, to transfer the three boys to the Children’s Court,the court observed:
“There was no need to refer to the matter or conducting any preliminary assessment with regard to the mental or physical capacity to commit such offences or ability to understand consequences of the offences. So, the case of these petitioners should not have been considered under section 15 of the said Act, but it straight way falls under section 18 of the said Act, which states that, when a child is found to be in conflict with law and Juvenile Justice Board is satisfied on inquiry that a child has committed either a petty offence or a serious offence and if the child is below 16 years old, then considering the nature of the offence, Juvenile Justice Board may require to take certain decisions and pass an order according to section 18 (1) (a) to (g) of the said Act.
In the present case, all the petitioners though are between the age group of 16 to 18 years, they have not committed heinous offences and, therefore, their case is not covered under section 15 of the said Act and no order can be passed under section 18 (3) of the said Act of transferring the case to Children's Court.”
Thus, the petition was allowed and an inquiry was directed to be conducted by the Juvenile Justice Board, Sangli, under Section 18(3) of the JJ Act.
Read the Judgment Here