6/26/2020 Juvenile Justice Act And Misplaced Objectives

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Juvenile Justice Act And Misplaced

Objectives
Reshabh Bajaj 4 Jun 2020 1:24 PM

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6/26/2020 Juvenile Justice Act And Misplaced Objectives

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The Bois Locker Room issue has raised many important questions regarding consent,

boys' culture and privacy. Most of the students who were part of the Instagram group

have been booked by the Delhi Police are in grade 11th and 12th. As most of these

students would be below the age of 18, they would be tried under the Juvenile Justice

(Care and Protection of Children) Act, 2015("Act"). Every time an offence is committed

by Juveniles that enters the larger public discourse, the narrative shifts to how 'easily'

we let go juveniles.

Also Read - The Prevailing Uncertainty In Discharge In Summons Cases

This issue of how we treat Juveniles in the criminal system gained steam after the

2012 Delhi Gang Rape Case, in which one of the accused was below the age of 18 and

was tried differently as per the criminal law for Juveniles. Succumbing to various

protests and pressure, the State nally gave in and introduced the Act, which came in

force in 2016. The Act created two parallel systems and if a Juvenile was within the

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6/26/2020 Juvenile Justice Act And Misplaced Objectives

age group of 16-18 ("Relevant Age Group"), s/he could be tried as an adult. The move

is in line with the prevalent public sentiment but I would show it falls short of a legal

backing. I would like to provide a framework for a constitutional challenge to the Act.

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The Act introduces a hierarchal system of offences, offences are categorised into

heinous, serious and petty. A heinous offence is one with a minimum punishment of

more than seven years. Serious offence has a punishment of more than three years

but less than seven years and a petty offence has a punishment less than three years.

As per Section 15 of the Act if a Juvenile in the Relevant Age Group commits an

heinous offence and the Juvenile Justice Board ("JJB") based on a preliminary report

is of the opinion that the Juvenile has the "physical and mental capacity to commit the

crime" and "understands the consequences of the offence" s/he shall be tried as an

adult.

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As per section 18 of the Act if Juvenile in the Relevant Age Group is not to be tried as

an adult then the trial would take place in the JJB as per the procedure laid down for a

summons trial in Cr.P.C. Further the harshest order that JJB can order is to send the

Juvenile to a special home for a maximum period of three years where s/he would be

provided with reformative services. Only in an exceptional circumstance the Juvenile

is to be sent to a place of safety.

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On the other if a Juvenile is to be tried as an adult the trial would take place in the

Children's Court, following all provisions of Cr.P.C. Further, if the accused is found to

be guilty, s/he would be sentenced to a place of safety till the age of 21 and after

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attaining the age of 21 if the Children's Court is of the opinion that the Juvenile is not

able to be a "contributing member" of the society than to complete the rest of the term

the Juvenile will be sent to jail. Therefore, the two procedures set out are completely in

contrast with each other. The whole procedure of trial and the sentencing is different.

When being tried as a Juvenile the Act focuses on reform but for an adult it focuses

on retribution. The harshest sentence while being tried as a child will be the minimum

sentence when being tried as an adult.

Some rationale behind two parallel systems can be found in the Statement of Objects

of the Act. It recognises that there is an "increase in cases of crime committed by

children in the age group of 16-18" which has showed that the earlier laws in place are

"ill equipped to handle child offenders of the 16-18 age group". To remedy such an

increase the provision to treat Juvenile of the Relevant Age Group as an adult has

been provided. Therefore, it can be argued that the Act does not fall short of the

reasonable classi cation test as there is an intelligible differentia and a rational nexus

to the object.

However, a reading of the Act would show that trying a Juvenile as an adult, though

has some legal backing, in reality it is an excessive and disproportionate action and

goes against the very basis of the Act and thus is manifestly arbitrary.

Manifest arbitrariness as a ground of challenge to the constitutionality of an act was

rst introduced in Shayra Bano v. Union of India and has since been used by the

Supreme Court at various instances. The ground of manifest arbitrariness provides

that any provision can be struck down if it is capricious, irrational and/or without

adequate determining principle or if it is excessive or disproportionate

The rst step is to identify the underlying principle of the Act. The rst paragraph of

Statement of Objects of the Act provides.

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"An Act to consolidate and amend the law relating to children alleged and found to be
in con ict with law and children in need of care and protection by catering to their
basic needs through proper care, protection, development, treatment, social re-
integration, by adopting a child-friendly approach in the adjudication and disposal of
matters in the best interest of children and for their rehabilitation through processes
provided, and institutions and bodies established, hereinunder and for matters
connected therewith or incidental thereto."

(emphasis supplied)

Further, Section 3 (iv) of the Act provides

Principle of best interest: All decisions regarding the child shall be based on the
primary consideration that they are in the best interest of the child and to help the
child to develop full potential.

Similarly, other sections of the Act also provide that the best interest of the child

should be paramount. This shows that the Act categorically departs from the

retributive theory of justice and places focus on the reformative theory. The Act

acknowledges that a Juvenile committing a crime, can be reformed and be

rehabilitated in the society. Therefore, the Act are mandates authorities to work within

the framework of best interest, reform and rehabilitation.

When seen in this context, the separate procedure laid down for Juveniles of the

Relevant Age Group seems like a mismatch with the larger purpose of the Act. The Act

recognises that there is scope of reform, but, does not provide the opportunity to

reform to the Relevant Age Group. For the Relevant Age Group, the Act is retributive in

nature and provides for harsher punishments, harsher trials and a possibility of jail

sentence. Enough material is available to show that deterrence is not an effective tool

to stop crime. Even if it is assumed that deterrence works, the problem still remains

that deterrence does not nd any kind of mention in the objects of the Act and thus

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should not act as a guiding principle. The Act does recognise the problem correctly,

however, it fails to provide a real remedy.

The rights of the Juvenile hinge on what the preliminary report states. The Act

provides the JJB "may" take the assistance of experiences psychologists or psycho

social workers or other experts for the preliminary assessment. No procedure is laid

out on how the JJB should make this assessment and no real factors for decision

making is provided. There is no mandatory requirement for the JJB to refer to any kind

of an expert and there is also no de nition of who an expert is. The Act in essence

provides the JJB with complete discretion to act upon. However, the Act fails to

recognises that when the rights of Juvenile are substantially curtailed by any kind of

adjudication, there has to be some framework within which the decision making of the

JJB has to take place. A lack of framework like in the present situation could lead to

the JJB to impose their own morality.

Another interesting aspect of the Act to look at is that it goes against the principle of

presumption of innocence. At one hand the Juvenile is not to be considered guilty, on

the other hand the Preliminary Report assumes that Juvenile has committed the crime

and passes an order on the aspect of Juveniles understanding of the crime. Although,

the Act in the explanation clause of Section 15 provides that the preliminary

assessment is not a trial but only an act to check the capacity of the Juvenile to

"understand the consequence of the alleged offence". Yet the fact remains that the

preliminary assessment impacts of the rights of a child on an alleged offence and

puts him to a trial without establishing if the offence was committed.

Thus, the Act fails to nd a workable solution of the problem of increase in crimes of

the Relevant Age Group. The Act itself identi es that the reform and rehabilitation is

the way forward, however, the solution provided by the Act is one of retribution. This

solution lacks any kind of backing by the objects of the Act and therefore should be

considered lacking any kind of determining principle and excessive in nature. Further
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The Prevailing Uncertainty In Discharge In

Summons Cases
Yugansh Mittal 26 Jun 2020 11:28 AM

The present article discusses the law regarding discharge (on merits) in summons

cases based on complaints (predominantly affecting, inter alia, Defamation and NI

Act), once accused has been summoned and how con icting decisions have caused

this issue to crop up repeatedly.

In summons trial, there is no speci c power to discharge the accused post summons,

except as provided in section 258, Cr.P.C., which however does not apply in complaint

cases. In warrant and session trials, the power is expressly provided in the form of

Section 227/239/245 Cr.P.C.

Judicial Examination:

The issue rst arose as back in K.M. Mathew v State of Kerala (AIR 1992 SC2 206),

the Supreme Court answered in the a rmative and stated that no speci c power is
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required for discharge and the magistrate has the power to drop the proceedings and

discharge the accused.

This view was considered in Subramanium Sethuraman v. State of Maharashtra

(2004) 13 SCC 324 and overruling K.M. Mathew, a three judge bench of the Hon'ble

Supreme Court, held:

"The case involving a summons case is covered by Chapter XX of the Code which
does not contemplates a stage of discharge like Section 239 which provides for a
discharge in a warrant case. Therefore, in our opinion the High Court was correct in
coming to the conclusion once the plea of the accused is recorded under Section 252
of the Code the procedure contemplated under Chapter XX has to be followed which
is to take the trial to its logical conclusion"

This position of law has been discussed and followed in a number of judgments by

the Hon'ble High Court of Delhi, to name a few: R.K. Aggarwal & Ors. v. Madan Lal

Nassa, 2016 VI AD (Delhi) 220, Asia Metal Corporation v. State 130 (2006) DLT 545,

Joginder Kumar v. Shamsher Singh Malik, Crl. Rev. P. 437/2000 decided on

29.11.2006, R.P. Gupta v. The State NCT of Delhi, 2007(97)DRJ100, R.P.G.

Transmission Ltd v. Sakura Seimitsu (I) Ltd 119 (2005) DLT 393.

The Creation of Uncertainty:

The confusion seems to have rst arisen beginning in Krishna Kumar Variar v. Share

Shoppe, (2010) 12 SCC 485, a two judge bench of the Hon'ble Supreme court of India,

in a case u/s 415/420 IPC, when a summoning order was challenged in the Delhi High

Court on ground of territorial jurisdiction, against which the Supreme Court was

approached. It was held:

"Hence, instead of rushing to the higher Court against the summoning order, the

concerned person should approach the Trial court with a suitable application for this

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purpose and the Trial court should after hearing both the sides and recording
evidence, if necessary, decide the question of jurisdiction before proceeding further
with the case."

However, the Hon'ble court does not refer to the issue decided in Subramaniam

Sethuraman or whether the magistrate has the power to discharge the accused or
drop the proceedings against the accused. The judgment in Krishna Kumar Variar can

certainly not be interpreted to clothe the Trial court with such powers.

In Bhushan Kumar v. State (NCT of Delhi), AIR 2012 SC 1747, a two judge bench of

the Supreme court, in a police case (FIR u/s 420 IPC), has taken a view contrary to

Subramanium Sethuraman (while not expressly noting the judgment of Subramanium

Sethuraman), granting the power, and held:

"17. It is inherent in Section 251 of the Code that when an accused appears before the
trial Court pursuant to summons issued Under Section 204 of the Code in a summons
trial case, it is the bounden duty of the trial Court to carefully go through the
allegations made in the charge sheet or complaint and consider the evidence to come
to a conclusion whether or not, commission of any offence is disclosed and if the
answer is in the a rmative, the Magistrate shall explain the substance of the
accusation to the accused and ask him whether he pleads guilty otherwise, he is
bound to discharge the accused as per Section 239 of the Code."

This view appears to be contrary to the dictum laid down by the three judge benches

of the Supreme court of India, particularly that in Subramanium Sethuraman which

speci cally noted that power under Section 239 CrPC is not available in summons

case.

This view that the accused can be discharged, in contradistinction to the view that the

accused cannot be discharged as highlighted above, nds mention in a number of

judgments of the Delhi High Court, to name a few: Gajender Nagpal v. Mahesh Kumar,

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(CRL. M. C. 993/2015, dated 13.3.2015), S.K. Bhalla v. State, 180 (2011) DLT 219,

Raujeev Taneja v. NCT of Delhi (Crl. M.C. 4733/2013, decide on 11.11.2013), Urrshila

Kerkar v. Make My Trip (Crl. M.C. 2598/2012, decided on 18.11.2013), R. Narayanan v.

State (Govt. of NCT of Delhi), 2019 (1) JCC 628.

Conclusion:

While there are many con icting decisions on the issue, the three-judge bench the

judgment of the Supreme Court in Subramanium Sethuraman v. State of Maharashtra

should be followed, as the dictum in Bhushan Kumar can certainly not prevail over the

view taken in Subramanium Sethuraman, the latter being three judge bench of the

Hon'ble Supreme Court and the former being a two judge bench. The Supreme Court

in Central Board Of Dawoodi Bohra v. State Of Maharashtra (2005) 2 SCC 673, a

Constitution Bench judgment may be cited: "The law laid down by this Court in a

decision delivered by a Bench of larger strength is binding on any subsequent Bench

of lesser or co-equal strength."

The remedy under section 482 CrP.C. with the High court would still be available as

noted in Subramanium Sethuraman v. State of Maharashtra, only the power of trial

court to discharge the accused and consequently a revision petition against the same

would be barred.

The Author is a Lawyer practicing at the Delhi High Court. Views are personal.

TAGS DISCHARGE IN SUMMONS CASES  NI ACT  DEFAMATION  SUMMONS TRIAL 

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the power is given to the JJB to limit the rights of a Juvenile lacks any kind of checks

and balances and should also be considered as excessive and disproportionate.

It seems like the Act has been brought in by the legislature to toe the line and has

provided a harsh procedure for a Juvenile thus punishing them and has satis ed the

public demand. In essence what the legislature has done is that it has given up on its

duty to protect the children. Instead of providing with any real social reforms that

tackles the core issue of why children commit crime or why there has been an

increase in crime committed by children of the Relevant Age Group, the Act takes an

easy way out and provides for stricter penalties. Nevertheless, the rst step before we

can expect any kind of change would be to change how we perceive crime.

Views Are Personal Only

(The author is a practicing advocate based out of Chandigarh)

TAGS RELEVANT AGE GROUP  JJ ACT  JUVENILE  JJ BOARD  JUVENILE JUSTICE 

1 Comment Sort by Newest

Add a comment...

Utkarsh Bedekar
I'm a layman and yet I haven't seen such a poor knowledge of the
JJ Act and current affairs at the same time.
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