January 1

INTERNAL
MOOT
ASSESSMENT 2016
WRIT FILED
JUVINILE JUSTICE AMENDMENT ACT CHALLENGING
WHETHER CONSTITUTIONAL OR THE VALIDITY
NOT OF SEC 15 OF
JJACT
 TABLE OF CONTENT

LIST OF ABBREVIATIONS

Art – Article

S.C.C – Supreme Court Cases

S.C.R – Supreme Court

UOI – Union Of India

U/S – Under Section

V. – Versus(against)

F.I.R - First Information Report

N.G.O – Non Governmental Organisation

& - And

. Subramaniam swammy and ors v. Raju Thr. Member 28 March, 2014

Tehseen Poonawalla V Union of india 2016

Peoples Union for Democratic Rights v. Union of India ( A.I.R.. 1982 , S C 14

 BIBLOGRAPHY

Constitution Of India

Indian Penal Code 1860 (Bare Act)

Juvenile Justice Act 2015

WEBLOGRAPHY

Indian Kanoon.com

Westlaw.com

Manupatra.com
 STATEMENT OF FACTS

1. Chhote Lal and Reena, both aged 16 years studied in the same college named as Goodfaith
Junior College and also participated in various college activities together.

2. On 30th January, 2016 around 8:00 pm both were practicing for their inter college dance
competition at Chhote Lal’s house. As his parents were out taking undue advantage of this
situation he threatened and forced Reena to have sexual intercourse with him due to which she
suffered serious injurious which rendered her infertile for her future life.

3. On 2nd February, 2016 an F.I.R was lodged against Chhote Lal and thus he was charged for
committing rape.

4. Subsequently after producing Chhot Lal before JJB, the JJB on the basis of medical and oral
evidences charged him of committing rape u/s 375 and u/s 376 & 376D .

5. The JJB had committed the said matter according to Section 15 of the Juvenile Justice(Care
and Protection of Children Act, 2015 (JJ Act, 2015).

6 .Deprived by the order of JJB Act, 2015 Chhote Lal with the help of N.G.O named Bacche
Bachao filed a writ petition under Art. 32 of the Constitution of Islandia.
 IN THE HON,BLE SUPREME COURT OF ISLANDIA

IN THE MATTER OF ARTICLE 32 OF CONSTITUTION CHALLENGING THE

CONSTITUTIONALITY OF ISLANDIA SEC 15 OF THE JJ ACT, 2015

IN THE MATTER OF POSITION PARTIES

BACCHE BACHAO PETITIONER

V.

UNION OF INDIA RESPONDENT

Written submission on behalf of Petitioner

 STATEMENT OF JURISDICTION

The petitioner has approached the Hon’ble Supreme Court of Islandia under Art. 32 of the
Constitution of Islandia.
 STATEMENT OF ISSUES

 WHETHER SECTION 15 OF JUVENILE JUSTICE ACT 2015 IS VIOLATING

PROVISIONS OF CONSTITUTION UNDER ART. 14 & 21 ?

 WHETHER CLASSIFICATION OF OFFENCES AS PETTY SERIOUS AND

HEINOUS IS ARBITRARY IN NATURE ?

 WHETHER THE SAID PETITION IS MAINTAINABLE OR NOT ?

 STATEMENT OF ARGUMENT

ISSUE 1

Maintainability of public intrest litigation

1. The said petition is not maintainable

2. It is necessary to see as to how a judge or magistrate is expected to apply this

provision. S.235(2) Cr.P.C. mandates that accused must be heard on the question
of sentence. This provision is, in fact, a reflection of the new trend in penology. At
such a stage judge is expected to consider question of sentencing in light of
various factors such as prior criminal record, age, employment, educational
background, home life, sobriety of the offender so also the factors such as social
adjustment, emotional and mental condition and prospect of his returning to
normal path. In “Shivmohansing Vs State of Delhi AIR 1977 SC 949, the Supreme
Court (Mr. Justice .V.R. Krishna Iyer) observed, “Hearing is obligatory at the
sentencing stage. The humanist principle of individualizing punishment to suit the
person and his circumstances is best served by hearing the culprit even on the
nature and quantum of the penalty to be imposed.”
3. In case of question of liability to enhanced punishment in consequence of
previous conviction S.236 Cr.P.C. comes in operation for sessions trial and S.248(3) in
case of trial before magistrate. S.248(3) Comes into operation when previous
conviction is charged u/s 211 (5) Cr.P.C. and the accused does not admit previous
conviction.
 ISSUE 2

Whether punishment awarded is justifiable

1. The court is expected to strike balance between too harsh and too lenient view while
awarding sentence. Through crime rate has increased abnormally as compared to it actual
sentencing his decreased to a considerable extent. Judicial decisions tilting towards
benefit of doubt many time invite criticism from the society. The apex court responding
to this criticism observed in 'S.C. Bahri vs State of Bihar AIR 1994 SC 2420 :
“Crime and punishment have a moral dimension of considerable complexity that must
guide sentencing in any enlightened society. The criticism of Judicial sentencing has
raised its head in various forms, that it is inequitable as evidenced by desperate
sentences, that it is ineffective; or that it is unfair being either inadequate or in some
cases harsh. It has been often expressed that there is a considerable disparity in
sentencing an accused found to be guilty for same offence. This sentencing variation is
bound to reflect because of the varying degrees of seriousness in the offences and/ or
verifying characteristics of the offender himself. Moreover, since no two offences or
offenders can be identical the charge or label of variation as disparity in sentencing
necessarily involves a value based judgment.”
10.2 In Rajeev vs. State of Rajasthan AIR 1996 SC 787 the Supreme Court cautioned,
“The punishment to be awarded for a crime must not be irrelevant but it should conform
to and be consistent with the atrocity and brutality with which crime is perpetrated, the
enormity of crime warranting public abhorrence and it should respond to society's cry
for justice against criminal”.
11.1 While awarding any sentence a judge must visualise the effect of sentence on the
offender. Generally in all cases excepting offence of immense gravity, a judge should ask
himself whether he can avoid sentencing of sending offender to prison. He must keep in
mind that short sentences expose an offender to all bad influences of imprisonment
without enabling him to any benefit from it. A Judge while sentencing is confronted with
twofold problems, firstly he must try to match the sentence to the gravity of the offence
and secondly he must try to find the sentence which offers the best prospect of ensuring
that the offender does not commit further crime. In order to answer these two problems
the Judge should be able to know the exact effect of sentence which he is going to pass.
In order to anticipate such an effect the judge must be equipped with adequate
information about the offender and their statistics. Judicial visits to Jails and correction
homes from time to time, is a welcome step which may enable a judge to see the actual
effect of sentences passed. Apart from it a judge is required to have (a) an informed
outlook on life & (b) live approach to the needs of society in the context of changing
social and economic needs & (c) ability to respond to advance intendment of legislation
within the framework of law.
11.2 Sentencing is a neglected aspect as compared to the aspect of finding of guilt. Negel
Walkar has put this reality in apt words saying, 'if the criminal law as a whole is
Cinderella of jurisprudence then the law of sentencing is Cinderella's illegitimate baby'.
Sentencing generally passes a complex problem which requires working compromise
between reformative, deterrent and retributive views about punishment. Still a broad
object of punishment should not be forgotten that it is necessary to impress upon the
guilty person that crime does not pay and that sentence is necessary for his individual
interest as well as in the interest of society.
11.3 Impressing the reformative object of punishment Chief Justice Gajendragadkar
observed in 'Indochina Navigation Company Ltd. v/s Jusjeetsing AIR 1964 SC 1146, - “It
must be remembered that ordinary offences with which the normal criminal law of the
country deals, are committed by persons either under the pressure of provoked or
unbalanced emotions, or as a result of adverse environment and circumstances and so
while dealing with these criminals who is many cases deserve a sympathetic treatment &
in a few cases, are more sinned against than sinners, criminal law treats punishment
more as reformative or corrective than as a deterrent or punitive measure”.
11.4 Mr. Justice .V.R. Krishna Iyer in his address to National Correctional Conference
held in 1971 emphasised that the orthodox and ignorant approach of the judiciary must be
changed. He further emphasized the need for national training or refresher programme for
the criminal judiciary.
1. 12. The 47th report of the Law commission of India has identified the standards
of sentencing, “7.44 – A proper sentence is a composite of many factors, including
the nature of the offence, the circumstances – extenuating or aggravating of the
offence, the prior criminal record, if any, of the offender, the age of the offender,
the professional or social record of the offender, the background of the offender
with reference to education, home life, sobriety and social adjustment, the
emotional and mental condition of the offender, the prospect for rehabilitation of
the offender, the possibility of a return of offender to normal life, the possibility of
treatment or a training of the offender, the possibility that the sentence many
serve as deterrent to crime by this offender or by others and the present
community need.
 3rd issue
Whether high court has exceeded its jurisdiction??

In Machhi Sing vs State of Punjab, AIR 1983 SC 957, the apex court made an attempt to
formulate as to what constitutes a 'rarest of rare' case. The apex court laid down specific
circumstances under which 'the collective conscience' of the community may receive
shock so as to constitute a rarest of rare case. The circumstances are (1) manner of
commission of murder (2) motive for commission of murder (3) magnitude of crime (4)
personality of victim. The apex court after formulating the modalities stated that a
balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and mitigating circumstances before the
option is exercised.

2. Remember, retribution has no Constitutional value in

our largest democratic country. In India, even an accused
has a de facto protection under the Constitution and it is

3.
The person dispensing justice as per Dharmashastra should prescribe a penance
appropriate to the age, the time and strength of the sinner, the penance being such that he
may not lose his life and yet he may be purified. A penance causing distress should not be
prescribed.

4.In the Supreme Court’s judgment in Soman v. Kerala, the Court cited a number of principles
that
it has taken into account “while exercising discretion in sentencing,” such as proportionality,
deterrence, and rehabilitation. 12 As part of the proportionality analysis, mitigating and
aggravating factors should also be considered, the Court noted.13
5. [s]entencingis an important task in the matters of crime. One of the prime objectives of
the criminal law is imposition of [an] appropriate, adequate, just and proportionate
sentence commensurate with the nature and gravity of [the] crime and the manner in
which the crime is done. There is no straitjacket formula for sentencing an accused on
proof of crime. The courts have evolved certain principles: [the] twin objective of the
sentencing policy is deterrence and correction. What sentence would meet the ends of
justice depends on the facts and circumstances of each case and the court must keep in
mind the gravity of the crime, motive for the crime, nature of the offence and all other
attendant circumstances.15

6. according to an Australian Institute of Criminology study, community service is far more economical
than imprisonment, which is very expensive.

Community Service works as a punishment by depriving a person of their time and liberty.
And in terms of rehabilitation, CSOs are often successful in helping young offenders rehabilitate and
integrate back into society.

The programs give young people the chance to build connections with business and people in their
community.

In fact, there is evidence to suggest that community service is more effective than another kind of
punishment, according to one 2013 Bureau of Crime Statistics and Research study (BOCSAR).

The BOCSAR study compared the reoffending rates of defendants given good behaviour bonds to those
given CSOs.

Those who are given CSOs were found to have a slightly lower rate of reoffending than those who
received given a bond – yet more than six times the amount of people received bonds than CSOs.

The number of CSOs has been decreasing since 1994, and the prevalence of good behaviour bonds has
been rising.

The Director of BOSCAR, Don Weatherburn, believes that although the difference in reoffending rates
may be small, the difference is probably larger than what the figures suggest.

This is because not all those who reoffended are caught, as much crime goes undetected or unsolved.

This means that large differences in the rates of offending can still only show a small percentage
difference in the reoffending habits of those who received a CSO versus a good behaviour bond.

CSOs are not a slap on the wrist: they come with a criminal record and breaches are treated very
seriously.

In fact, any breach can lead to the CSO being revoked and a sentence of imprisonment being imposed.

And if an offence is committed during a CSO, the fact that the offender was on CSO at the time will be
treated as an aggravating factor – which could lead to a harsher sentence than would normally be
imposed.

4 benefit of reasonable doubt

If two views are possible on the evidence adduced in the case, one pointing
to the guilt of the accused and the other to his innocence, the view which is
favorable to the accused should be adopted.

What is ‘reasonable doubt’ and what is ‘benefit of doubt’ ?

The general principle of criminal jurisprudence is that the prosecution has to
prove its case beyond all reasonable doubt and the benefit of every
reasonable doubt should go to the accused.

The ‘reasonable doubt’ is one which occurs to a prudent and reasonable

man.
The doubt which the law contemplates is certainly not that of a weak or
unduly vacillating, capricious, indolent, drowsy or confused mind. It must be
the doubt of the prudent man who is assumed to possess the capacity to
‘separate the chaff from the grain’. It is the doubt of a reasonable, astute
and alert mind arrived at after due application of mind to every relevant
circumstances of the case appearing from the evidence. It is not
a doubt which occurs to a wavering mind.

It is this doubt which occurs to a reasonable man, has legal recognition in

the field of criminal disputes.

Benefit of doubt:
The accused would be entitled to an acquittal because the prosecution has
failed to discharge its special burden of eliminating doubts. The accused may
have failed to prove his plea but he gets a benefit which, whether it is called
the benefit of the exception pleaded or of doubt on the whole case, is
available to him only because he has succeeded in throwing the existence of
an ingredient of the offence into the region of reasonable doubt.

Reference: Section 105 of Evidence Act

Section105 – Burden of proving that case of accused comes within
exceptions
When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General
Exceptions in the Indian Penal Code, (45 of 1860) or within any special
exception or proviso contained in any other part of the same Code, or in any
law defining the offence, is upon him, and the Court shall presume the
absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind,
he did not know the nature of the act.
The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave and sudden provocation, he
was deprived of the power of self-control;
The burden of proof is on A.
(c) Section 325 of the Indian Penal Code (45 of 1860), provides that
whoever, except in the case provided for by section 335, voluntarily causes
grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under section
335 lies on A.
Test of preponderance of probabilities:
Section 3 of the Evidence Act by itself lays down that a fact is said to be
proved when, after considering the matters before it, the Court considers its
existence so probable that a prudent man ought, under the circumstances of
the particular case, to act upon the supposition that it exists. This is what is
meantby the ‘test of probabilities’ or the ‘preponderance of probabilities.’
the Court’s duty to shield and protect the same. Therefore,
we make it clear that when the judiciary interferes in such
matters, it does not really interfere with the power exercised
under Article 72/161 but only to uphold the de facto
protection provided by the Constitution to every convict
including death convicts.
14.8 While considering the question of laying down of standards and norms restricting
the area of imposition of death penalty the apex court in 'Mohammad Chaman vs State
(NCT Delhi) (2001) 2 Supreme Court case 28 observed, “by laying down standards it is
meant that murder should be categorized beforehand according to the degree of
culpability and all the aggravating and rigidly enumerated so as to exclude all free play
of discretion, the argument merits rejection such standardization is well nigh impossible
firstly, degree of culpability cannot be measured in each case, secondly, criminal cases
cannot be categorized there being infinite unpredictable and unforeseen variations;
thirdly on such categorization the sentencing process will cease to be judicial and
fourthly, such standardization of sentencing discretion is a policy matter belonging to the
legislature beyond courts function.” In this judgment the apex court even referred its own
earlier decision in Gurubaksha Sing vs State of Punjab AIR 1980 SC 1632.
1. 15.1 Sections 235, 248, 325, 360 and 361 Cr.P.C. deal with the power of the
Court relating to sentencing. However, CrPC does not provide any guidelines
for sentencing and gives an absolute discretion to the Judgeto award any
sentence within given parameters.