Juvenile Accused Of Attempt To Commit Rape Can't Be Tried As Adult Since Offence Not 'Heinous' Under JJ Act: Rajasthan High Court

The Rajasthan High Court set aside an appellate court's order remitting a POCSO case lodged against two juveniles to the Children's Court for conducting a trial against them as "adult accused". In doing so the court said that offence alleged against the petitioners do not fall in the category of "heinous offences" under the Juvenile Justice Act 2015 as none of the offences alleged carried a minimum sentence 7 years or more. For context under Section 511 IPC (punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) the punishment is either imprisonment for life or imprisonment not exceeding, half of the longest term provided for the Offence, or Fine, or Both. Clause (33) of Section 2 of the JJ Act states that a "heinous offence" includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more.The petitioners were booked under Sections 376(rape)/511, 354-A(Sexual harassment), 354-D(Stalking), 384(extortion), 306(Abetment of suicide) and 120-B(criminal conspiracy) IPC and under Sections 7(Sexual assault)/8 & 11(Sexual harassment)/12 of the POCSO Act and under Section 67-A(Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form) Information and Technology Act, 2000.After investigation, charge-sheet was submitted against the petitioners, who were juvenile at the time of commission of alleged offence. It was submitted before the Juvenile Justice Board which took a decision to conduct the trial, instead of sending them for trial before the Children's Court as accused.The respondent-complainant filed an appeal before the Appellate Court–Special Judge, POCSO Act which allowed the same on 16.06.2025 quashing the JJ Board's order. The case of the petitioners was remitted to the Children's Court for conducting fresh trial as accused. Against this the petitioners moved revision pleas before the high court. Justice Anoop Kumar Dhand perused the offences alleged against the petitioners and said that it clearly indicated that in none of the above offences, the minimum sentence has been prescribed as 7 years.It said that while the sentence can be awarded to an accused, which may extend to 7 years or more, but in the instant case in none of the offences, the minimum sentence is 7 years.The court referred to Shilpa Mittal v/s Vs. State of NCT of Delhi and Another (2020) where the Supreme Court had held that an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. It said:"In view of the above proposition of law, as laid down by the Hon'ble Apex Court in the case of Shilpa Mittal (supra), this Court finds no valid reason to take a different view, as in none of the alleged offences, the minimum sentence is prescribed as 07 years. There is no charge against the petitioners for the offence under Section 376 IPC, where the minimum sentence is 07 years.The only charge against the petitioners is “attempt to commit rape” and the same is punishable under Section 376/511 IPC, and half of the minimum sentence of 07 years, i.e., three and a half years sentence is prescribed for attempt to commit rape""In the considered opinion of this Court, none of the alleged offences fall within the purview of “heinous offence”, as defined under Section 2(33) of the Act of 2015 because of the absence of minimum sentence of seven years or more, for the offences which are alleged to have been committed by the petitioners. Hence, the provision contained under Section 15 of the Act of 2015 are not attracted in this case. Hence, there is no reason or occasion to refer the case of the petitioners to the Children's Court for their trial as “Adult Accused”," the court said. The court said that the JJ Act has not classified or defined the offences for which punishment under any statute is imprisonment for more than 07 years, but no mandatory minimum punishment of imprisonment for 07 years or more has been prescribed. However, it said, this would not justify inclusion of all offences under which the offender child can be ordered to undergo sentence of imprisonment for more than 07 years in the category of “heinous offences". The court said that the legislature has consciously classified the offences under different categories in order to achieve the Act's object. It said that children who have committed “petty offences‟, “serious offences‟ and “heinous offences‟ are not treated alike under the Act.It further said that “heinous offences" defined under Section 2(33) cannot be interpreted in a way, which may be less beneficial for the child, who is alleged to have committed an offence falling between the category of “serious offences‟ and “heinous offences‟. This was because the JJ Act treats all children below 18 years equally except in the age group of 16-18 years, who has committed “heinous ...

Juvenile Accused Of Attempt To Commit Rape Can't Be Tried As Adult Since Offence Not 'Heinous' Under JJ Act: Rajasthan High Court

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