Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Women and child development minister Maneka Gandhi's announcement that juveniles committing rape, murder or heinous crimes, should be tried as adults has refuelled the controversy  on lowering the age bar of juvenile to 16 from 18 years. Juvenile Justice amendment Bill is pending consideration of Rajyasabha after being passed by Loksabha. NCRB data reveals that involvement of juveniles in murder has increased by over 86% in 2002-2012, while incidents of rape by juveniles had increased by 142% in the same period. But overall, only 1.2% of the total crimes are alleged to be committed by juveniles in the country in 2012. 



After the Nirbhaya gangrape and murder case, protestors on the street demanded to lower down the age of juvenile from 18 to 16 and award death sentence to the ‘Juvenile accused’, a bunch of petitions were filed in Supreme Court and before Juvenile Justice Board (JJB) on the issue of juvenile age without success. Even Justice J.S.Verma’s committee report turned down the demand while submittingit’s report to the Govt. Govt declined to amend the Juvenile justice Act and even if the Govt wish to amend the law, the same can not be retrospective and in no way applicable to the present case.

Historical perspective.

While reviewing the working of the ‘Children Acts’, it was realized that ‘much greater attention is required to be given to children who may be found in situations of social maladjustment, delinquency or neglect’. It was also found that ‘the justice system as available for adults is not considered suitable for being applied to juveniles’. So it became  necessary that a ‘uniform juvenile justice system’ should be available throughout the country which should make adequate provision for dealing with all aspects in the changing social, cultural and economic situation in the country. There was also need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles. The Juvenile Justice Act, 1986 was passed by the legislatures to deal with juveniles.

India became a signatory to the UN Convention on the Rights of the Child, 1989 and ratified it on 11.12.1992 pursuant to which the Juvenile Justice (Care & Protection of Children) Act, 2000 was conceived and enacted w.e.f.1.4.2001 to align the country’s domestic laws with the treaty obligations.

Date of offence or date of protection in court?

Three Judge Bench of Supreme Court in Umesh Chandra Vs. State of Rajashtan, 1982 were clearly of the view that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial." But a Divison Bench  comprising Justice Arijit Pasayat  of Apex Court in Arnit Das Vs State of Bihar,(2000) did not notice the three judge’s judgment in Umesh Chandra’s case and ruled that reckoning date is the date of production of the accused before the Court and not the date of the occurrence of the offence. Later the issue was settled on 2.2.2005 by Constitution Bench of five judges comprising Justice N.Santosh Hegde, S.N.Variava, B.P.Singh. H.K. Sema & S.B.Sinha in Pratap Singh Vs State of Jharkhand (2005) wherein it has been held that “the relevant date for reckoning the age of the juvenile would be the date of occurrence and not the date on which he was produced before the Board”.

New Act applicable, if juvenile as on 1.4.2001

Under the Juvenile Justice Act, 1986, the upper age limit for male juveniles was 16 years, which was raised to 18 years in 2000 Act. The question arose whether a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years when the Juvenile Justice Act, 2000 came in force w.e.f. 1.4.2001 is a juvenile or not? The majority in Pratap Singh case answered “the 2000 Act would be applicable to a proceeding in any Court/Authority initiated under the 1986 Act, which is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001 and not otherwise”.

Amendments in 2006

The Juvenile Justice (Care and Protection of Children) Act, 2000 was amended w.e.f.22.8.2006. Amendments by Parliament in instalments with long gap and overriding provisions on each other has created enough mess in justice delivery system and also resulted in total miscarriage of justice to juveniles apart from wide confusion in legal space.

Now the Act is a complete Code, prescribing a special procedure, and an entirely different set of standards to be adopted for juveniles. The Juvenile Justice Board is entitled to exclusively deal with all matters, including enquiry into allegations of the juveniles alleged to have committed offences. Whenever a Magistrate - who is not empowered under the Act to exercise jurisdiction - is of opinion that the accused brought before him is a juvenile he has to refer such matter and person to the Board.

Let’s redefine “Juvenile in conflict with law”

According to Sub-section (e) of Section 2 of the 1986 Act "delinquent juvenile" means a juvenile who has been found to have committed an offence;" whereas Sub-section (l) of Section 2 of 2000 Act defines "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence. The notable distinction between the definitions of 1986 Act and 2000 Act is that in 1986 Act "juvenile in conflict with law" is absent.

Prior to amendment in 2006 “Juvenile in conflict with law” was defined as “a juvenile who is alleged to have committed an offence”, whereas by amending the above “Juvenile in conflict with law” means “a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;

Though in Section 2(k) “juvenile” or “child” already meant “a person who has not completed eighteenth year of age”, it was felt necessary to add “as on the date of commission of such offence” to avoid any controversy in interpreting the words any more.

Special provisions for juvenile offenders.

By virtue of Section 7-A of the Act, the claim of juvenility can be raised before any court, at any stage even after final disposal of the case and even if the juvenile has ceased to so. 

As per Section 10 of the Act in no case, a juvenile in conflict of law shall be placed in a police lockup or lodged in a jail. It is also apparent from a reading of the provisions of Sections 15 and 16 of the Act that no juvenile irrespective of offence committed and punishment can be kept in observation or special home for more than three years.

It has been amply clarified in Section 20 (relating to special provision in respect of pending cases) of the Act that in all pending cases including trial, revision, appeal or any other criminal proceedings the Act shall apply in case of juvenile in conflict with law for all purposes and at all material times, when the alleged offence was committed.

JUVENILE JUSTICE RULES, 2007 : ONE YEAR MARGIN ON LOWER SIDE

The Juvenile Justice (Care and Protection of Children) Rules, 2007 came in operation w.e.f. 26.10.2007. According to Rule 12 of JJ Rules, 2007 the age of a juvenile must be determined on the basis of Matriculation Certificate or Birth Certificate from the School, Birth Certificate by Corporation or Municipality or Panchayat and in absence of any document the Medical opinion by the Medical Board at the time of offence committed. While determining the age margin (benefit) of one year on the lower side in age can also be given to the juvenile.

Supreme Court in Hari Ram Vs State of Rajasthan, observed that “in case exact assessment of the age cannot be done, the Court or the Board or as the case may be, the Committee, for reasons to be recorded by it, may, if considered necessary, give benefit to the child or juvenile by considering his/ her age on the lower side within a margin of one year. The scheme of the Act is to give children, who have, for some reason or the other, gone astray, to realize their mistakes, rehabilitate themselves and rebuild their lives and become useful citizens of society, instead of degenerating into hardened criminals." [(2009) 13 SCC 211]

Juvenile justice between 2001-2007 and thereafter

It is worth mentioning here that the decision of the Constitution Bench in Pratap Singh's case (supra) was rendered on 2.2.2005 and Munney @ Rahat Jan Khan Vs State of U.P. (2006) when the amendments to Sections 2(l) and 20 and the introduction of Section 7-A which came in force w.e.f. 22.8.2006 had not yet been effected, nor was Rule 12 of the 2007 Rules were available, which came in force w.e.f. 26.10.2007. However several decisions were rendered by the Apex Court and the High Courts prior to 1st April, 2001, when the Juvenile Justice Act, 2000, came into force and thereafter till the Amendment Act, 2006 and Rules, 2007 came into operation.

Decision passed sub silentio

Jameel vs. State of Maharashtra (2007) was rendered on 16.1.2007 wherein the amendments to the Act affected by the Amendment Act 33 of 2006, which came into effect on 22.8.2006, were not even noticed.

In the case of Vimal Chadha vs. Vikas Chaudhary (2008) delivered on 27.5.2008 wherein, although, the amendment of the Act and the introduction of the Juvenile Justice Rules, 2007, were brought to the notice of the Court, the same were not considered and the decision was rendered in the light of Pratap Singh's case (supra) and other cases decided prior to 1.4.2001.

In Ranjit Singh vs. State of Haryana (2008) pronounced on 11.9.2008 wherein also the amendments to Section 2(l) and 20 and the introduction of Section 7-A in the Juvenile Justice Act, 2000, and the introduction of the 2007 Rules had not been considered and the decision passed sub silentio.

Similarly in Babloo Pasi Vs State of Jharkhand (decided on 3.10.2008) by Justice C.K. Thakkar and D.K. Jain, which basically dealt with Section 49 of the Juvenile Justice Act, 2000 and Rule 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003, which is pari materia with Rule 12 of the 2007 Rules. While deciding the said case, the Hon'ble Judges did not also have occasion to consider the amendments effected to the Juvenile Justice Act, 2000, by the Amendment Act 33 of 2006 which had just come into force on 22.8.2006.

Systemic failure of justice delivery machinery

In Ramesh @ Bori Vs State (2005) Justice Ravindra Bhatt and G.P.Mittal of Delhi High Court rightly observed “these facts reveal an extremely disturbing picture, pointing to whole sale violation of the procedure established by law, and illegal detention of Ramesh for 5 years. This failure was systemic, because neither the police, nor the prosecution, nor the counsel, or even the Court - all of whom had sufficient opportunity to observe the accused even thought it appropriate to consider, let alone explore the possibility of applying for determination of the age. There was a clear violation of his rights under Article 21 of the Constitution of India”. The Court was of the opinion that as a restitutionary measure the accused Ramesh should be entitled to some compensation and  directed the Govt. of NCT of Delhi to pay ` 5,00,000/- to the Appellant as compensation within eight weeks.

If the minister or ministry is seriously planning to lower the age for juveniles, then the age of marriage and consent should also be brought down to 15 or 16 from 18, otherwise it may certainly further complicate the matter. Proposed amendments are transparently misconceived and will be totally counter-productive. Let’s not forget that socio-economic conditions and educational background of Indian youths, while comparing the law with other countries. I strongly feel that it’s absolutely absurd and illogical that a juvenile above 16 is treated as an adult and punished for raping a stranger girl but gets a ‘legal license’ (exception of Section 375 IPC) to rape his own wife, if she is above 15 years of age.

ARVIND JAIN, ADVOCATE

170, Lawyers Chambers,

Delhi High Court, New Delhi.

bakeelsab@gmail.com

Author was member of Expert Committee, Juvenile Justice Act, 1986.


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